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That criticism of the judge was entirely misguided. In any event, even if people had thought the judgment wrong, there is a process for dealing with it. Sentences that are thought to be over-lenient can be referred by the Attorney-General to the Court of Appeal. However, only a small minority of criminal casesabout 200have resulted in an increased sentence. Of course defendants can appeal, and sentences can be reduced. It is a perfectly proper process. The Sweeney case was probably compromised by the fact that a Ministerthe Home Secretarysuggested that the case should be referred to the Court of Appeal because the sentence was over-lenient because, by definition, it
put unfair pressure on the Attorney-General, who acts in a quasi-judicial and entirely independent capacity when taking such decisions.
Those are the three cases. The first is the foreign prisoners wrongly detained in Belmarsh; it was clearly in breach of our obligations under the European convention, which has now been incorporated into our domestic law. The second is to do with the sentencing of people for serious and unpleasant offences. The third is those foreign citizens who are under control in this countryit is against a perfectly proper backgroundagainst whom excessive power had been used.
It is important that we do not go down that road, allowing open season and thinking it acceptable for Ministersjunior Ministers, Cabinet Ministers and even Prime Ministerscontinuously and regularly to attack judges. Why is it unacceptable? Above all, it undermines one of the things that Ministers are always seeking to persuade society aboutthat we should support and accept the rule of law, and believe that we should all lead orderly lives. By definition, that means that judges should be respected for their decisions.
I shall be giving some strong quotationssome that I remembered, and some that I had to look upto show how important it is that we should recognise the distinction between the judiciary and politicians and parliamentarians.
Mr. Oliver Heald (North-East Hertfordshire) (Con): I am following closely what the hon. Gentleman says, and I agree with him. It is important that those at the top of Government should have an understanding of the principles that he outlines. Does he share my concern that the Prime Minister should have told the Liaison Committee on 4 July that
our legal culture is behind the times?
Simon Hughes: It is very worrying, and I am troubled. As I said earlier, we all remember that before becoming a shadow Minister or even being in government the Prime Minister was rigorous in attacking the Government of the day whenever there was the suggestion of an attack on judges by Ministers or others. In the nine years since he came to office, he has set a bad example by becoming more willing to criticise; that slippage goes fundamentally against what he used to sayand what I thought the Government believed when they came to power.
The hon. Gentleman and the right hon. and learned Lady will remember that before the 1997 election the Labour party was led in discussions on constitutional matters by Robin Cook, and that he and my noble Friend Lord MacLennan of Rogart negotiated some principles on constitutional reform. Our two parties were then in opposition, but we did it against the eventuality that either or both of us would be in power after the election and that in any event it was better to establish the ground. By and large, those principles have been followed and they were and are extremely welcome.
The first of those principles was the incorporation of the European convention into domestic law, which was entirely supported and pushed through. I remember the right hon. Member for Blackburn (Mr. Straw) marking the passage of that legislation into law. Then there is the welcome change that, when implemented, will separate the House of Lords Judicial Committee from its place in the legislature in the upper Chamber and create a separate Supreme Court. It was controversial, but it was the right decision. In this modern democracy, the Lord Chancellor should not have three jobs. The head of the judiciary should be a judge, not a politician; and the senior court should be entirely independent of the legislature. We support that change.
Those decisions were consistent with the Prime Ministers original position. However, his views more recently expressed have not been, despite the fact that his colleagues, when pressed, have expressed the earlier view.
The hon. Gentleman will doubtless remember questions like those tabled in the other place to the Lord Chancellor earlier this year, including by Lord Marsh and my noble Friend Lord Goodhart. I shall cite two. Lord Goodhart asked the Lord Chancellor:
My Lords, Section 3 of the Constitutional Reform Act
specifically requires all Ministers of the Crown to uphold the continued independence of the judiciary. Were a Minister of the Crown at any level from the lowest to the highest to describe a judicial decision as an abuse of common sense, particularly at a time when that decision was under appeal, would the noble and learned Lord the Lord Chancellor regard that as legitimate debate? Does the noble and learned Lord agree that, while The Sun is free to attack the judiciary as offensively as it likes, short of defamation, the same freedom is not enjoyed by Ministers?
My Lords, I agree with the noble Lord that Ministers are under an especial obligation because confidence in the judiciary depends in part on what Ministers say. The noble Lord is referring to what my right honourable friend the Prime Minister said about the decision of Mr Justice Sullivan in relation to the Afghan hijackers. I discussed his comments on Mr Justice Sullivan's judgment with the Lord Chief Justice, and we both agreed that they did not have the effect of undermining judicial independence nor were they intended to do so. The issue of whether or not the Afghan hijackers should go back is a matter of legitimate debate.[Official Report, House of Lords, 12 June 2006; Vol. 683, c. 7.]
Although there was some dispute about the Prime Ministers comments, an answer to a similar question gave the strongest assertion of what the position should be. Lord Goodhart asked what steps the Government are taking
to ensure that Ministers of the Crown act in a manner compatible with their obligations under the Constitutional Reform Act 2005 to uphold the continued independence of the judiciary.
My Lords, a strong, independent judiciary is essential to the rule of law, public safety and the protection of the individual. The Government are fully committed to the independence of the judiciary. It is my duty as Lord Chancellor to defend judicial independence and to ensure that all Ministers are aware of and comply with their obligations to uphold it.[Official Report, House of Lords, 12 June 2006; Vol. 683, c. 7.]
What the Lord Chancellor has been saying has not been convincing for the judges. We need to do more, and I therefore return to my proposition that the principles need to be enshrined in a way that cannot be undermined, as they have been by the comments of the Prime Minister and others.
There is clearly an issue about Ministers speaking out of turn, but there is also the strong public view that many of our judges at least appear not to be responding to the public opinion that criminals, and particularly career criminals, should be given exemplary sentences. How does the hon. Gentleman think that the judiciary could become more responsive to the public moodand when he talks about the judiciary, does he include the magistracy? At local level there is concern that magistrates are not able to punish offenders as the public would like to see them punished.
Simon Hughes: The hon. Gentleman asked a pair of interlinked questions. First, how in touch are judges at all levels in reflecting the public mood? They are more in touch than ever, because of both their background and their exposurethey are a lot less protected than they used to be. That is particularly the case for people who were called magistrates and are now called district judges and sit in local magistrates courts. They see the whole family of life passing before them daily, and are probably as much exposed to what life is really like as almost anybody else in society, including politicians. District judges see people from all backgrounds and in all circumstances and hear their stories, true or false, when they appear in court.
Secondly, do judges have the power to do what they think needs to be done? They may not, and may feel that they are overly constrained by the law of the land. Before the summer, my hon. Friend the Member for Sheffield, Hallam (Mr. Clegg) and I introduced proposals reflecting our belief that sentences should do what they say. To take the unhappy and topical example of the pronouncement yesterday in relation to the death of Damilola Taylor, which took place in the borough shared by myself and the Minister of State, the sentence given will not in all probability be the sentence served by the two young men convicted. My hon. Friend and I believe that there would be greater credibility in the sentencing system if, when a judge gave a sentence of five years, that meant that five years would be served. A harsh consequence of that is that a life sentence cannot be regularly handed out if life is not meant. The reality is that there are only around 20 people actually serving life, and a sentence lasting the whole of someones natural life should be reserved for those few cases where the judges really mean it. However, I understand the point raised by the hon. Member for Kettering (Mr. Hollobone) and we are sympathetic to it.
Judges feel that they are acting within the constraints that we put on them. They are more constrained than ever before, and are subject to challenge in the criminal courts for being either excessively severe or too lenient.
Therefore, there is no scope for parliamentarians, politicians and Ministers in particular having a go at them, because there are mechanisms available to be used when people are unhappy with a decision. A judge who consistently gets sentencing wrong can be removed. It is not impossible for a judge who regularly, as it were, misbehaves judicially to be dealt with. When I hear people such as the Lord Chief Justice, Lord Phillips of Worth Matravers, who is highly respected, and Mr. Justice Peter Smith and others regularly saying that there is considerable concern among the judiciary that they are not receiving the support that they want from the Government, I am worried, as we all should be.
In the past few days, when the Lord Chief Justice commented on the benefit of good community punishment, it was not just something that he woke up one morning and decided to say: he had first spent time under cover experiencing community punishment for himself, which is pretty hands-on experience. He commented on antisocial behaviour, not without thinking, but after collecting the opinions of many judges around the country. Judges are well seized of the issues. I read in the law supplement of The Times in June a worrying report that an increasing number of judges are troubled and feel that they may not be able to remain in their post if they continue to be subjected to such political attack. We need to be absolutely clear that we have a modern system of selecting and appointing judges, and that there is a more independent system of choosing the best people to be judgesmore women and people from black and ethnic minorities and different walks of life, rather than just from the Bar or private schools. We have a better cohort of people who are representative of Britain, and they deserve our defence.
I hope that there will be a consensus that it is time we stood up for judges. They are not always the most popular people, but we should follow the great tradition of Blackstone, Lord Atkin, Lord Denning and Lord Hailsham, who have all argued over the years for the importance of judicial independence. I hope that there will be an encouraging response, not only from the Conservative Front Bench but from the Minister, and that the Government will look favourably on the idea that in the future we should enshrine the independence of the judiciary as a written part of our great constitution, so that the judges of Britain are not undermined in an unfair, ill-conceived and extremely unhelpful manner in the job that they do, applying the law as we decide it, but with the independence that comes from looking at each individual case and ensuring that it is decided on its merits by somebody who has seen it from beginning to end, not by politicians or journalists who may not have been in the court or know the history and are much less qualified to make a judgment.
Mr. Heald: I congratulate the hon. Member for North Southwark and Bermondsey (Simon Hughes) on securing this debate. It is an important subject, and he has outlined the ground well. Indeed[Interruption.]
Mr. Roger Gale (in the Chair): Order. There may have been some confusion. I expected that another Member might rise, and that did not happen, but there now appears to be some consternation. Does the hon. Gentleman wish to be called?
Mr. Clegg: The apology should be mine. I am unaccustomed to our having a double helping of contributions from the Liberal Democrat Front Benchit may be unprecedented in these debates, although perhaps it will be repeated in the future; we certainly welcome it. I imagine that it has taken others by as much surprise as it took me.
My hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes) dwelt in a highly articulate fashion on the constitutional principles and issues. I could not better his arguments, so I shall not repeat them, but I want to dwell a little on the political aspects of this crucial debate about the division of labour between the Executive and the judiciary.
Beyond the constitutional issues, a political choice is taken when members of the Government publicly attack members of the judiciary. It was a political decision to attack the judgment on the non-return of the so-called Afghan hijackers before the Government lodged an appeal. It was a political decision to attack the judge in the case of Mr. Sweeney, which has been alluded to, before the Attorney-General had the opportunity to refer the case onwards because of the undue lenience of the sentence. It was a political decision to attack the judiciary in broad terms for somehow restraining the Government from doing what is necessary on behalf of the public to deal with the new terrorist threat. It was a political decision to suggest, as we heard yesterday in the debate on the Floor of the House, that it is a failure of our courts and judges that not enough community sentences are handed down.
What is gained by taking those political decisions? I imagine that it is fewer unfavourable headlines directed fair and square at Ministers, a shifting of emphasissome would even argue blamefrom one part of the Executive to another, in the eyes of the public, and an impression among the public that the, at least until fairly recently, almost entirely voiceless judiciary is to blame for complex decisions that in many respects they do not follow in the detail that we do.
If those are the benefits, it is legitimate to ask what is lost by taking the political decision to make those public comments about the judiciary on behalf of the
Executive. First and most obviously, it blurs or breaches the traditional constitutional division of labour between the judiciary and the Executive. That in turn leaves the public confused and, frankly, simply misinformed on occasion about who is responsible for what, so when a judge hands down a sentence on Mr. Sweeney, for instance, following recent deductions in respect of the possible parole date for Mr. Sweeney introduced by legislation just a few short months earlier, the public are either by accident or, worse still, wilfully persuaded by the nature of the public debate into thinking that it is the judges decision when, as we know, he was following the guidelines set by others in this place.
The political decision to make such comments also draws the judiciary and judges increasingly into the public debate. I agree in substance with some of the interventions referred to by my hon. Friendnotably, this weekends intervention by Lord Phillips about the merits of community sentences. However, I do not welcome those public interventions if they become standard fare in an increasingly public spat between the judiciary and the Executive. I understand why the judiciary would want to make its case more forcefully in public than it has hitherto felt necessary, but it is an erosion of the constitutional and political conventions that we have if judges feel provoked, as they clearly have been, to pick up the cudgels in public in the way that is occurring.
The other costa major cost, in my viewof the political decision to diminish the work of the judiciary in the way in which that has sometimes occurred is to present human rights not as something that protects the prerogatives and inalienable rights of British citizens but, increasingly, as something that acts as a threat to our collective public security because, in some nebulous way, they restrain us as a society and they restrain the Government from taking the necessary actions to safeguard public security.
It is an extraordinarily dangerous leap in the darkor a very cynical move if it is not just a leap in the dark but a deliberate evolution of the debateto transform something as precious as human rights, which have been championed for so long in this country, from something that has been an opportunity and a defence of our traditional rights into something that is increasingly regarded as a threat. That is because of a deliberate political decision by Ministers. I am sure that I speak on behalf of all hon. Members when I say that I have noticed that more and more of my constituents refer to human rights as something that is somehow making them feel less safe than they would do otherwise. That is new. In my view, it is dangerous. It is profoundly unwelcome and a total corruption of what human rights stand for, and it is a deliberate and direct consequence of political decisions taken in recent months and years.
Above all, perhaps, the dynamic that has been set in motionan increasingly antagonistic dynamic between the Executive and the judiciaryerodes public confidence in all branches of government. The public often do not distinguish between one branch and another as we are doing today. Most particularly, it erodes public confidence in the operation of the criminal justice system as a whole. That is self-defeating, from the point of view of the Government of
the day, and extremely dangerous for any of us who are interested in the rule of law and the credibility of the rule of law and the criminal justice system as a whole.
All those costs, which I have enumerated at some length, far outweigh the short-term political benefits to any Government of the day in deciding to take an increasingly antagonistic stance towards the judiciary, as has been the case in recent times.
I heartily congratulate my hon. Friend on securing the debate. I very much hope that it helps in some small way to persuade the ExecutiveMinistersto restore the balance and perspective in their attitudes and pronouncements about the judiciary, not to the benefit just of one party or another, but to the benefit of the traditions and customs by which we are governed and which I know unite us all today.
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