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10 Oct 2006 : Column 34WH—continued

11.36 am

Mr. Oliver Heald (North-East Hertfordshire) (Con): I congratulate the hon. Member for North Southwark and Bermondsey (Simon Hughes) on securing an important debate. He set out the ground very well. The hon. Member for Sheffield, Hallam (Mr. Clegg) also touched on important issues about the self-restraint that politicians need to show when talking about legal cases and decisions. It is important to recognise the long-standing convention that politicians do not interfere in the work of the courts lightly. One can go back as far even as Churchill in the dark days of the second world war. He was anxious to stress that the power of the Executive should be exercised with restraint and that we should respect our legal system and the independence of judges. He said:

We should remember that history and that tradition as something that is not just in the past but is living and breathing. It is part of the very important constitutional arrangement that we have in this country, to which the hon. Member for North Southwark and Bermondsey referred—the separation of the powers of Parliament, the judiciary and the Executive. The only point that I would make to him is that it has never been quite as simple as that. All those aspects were represented one within the other. I am sure that that has been one reason why we have not had in the UK the gridlock that there has been in America. I am referring to the idea that Parliament had the Ministers within it and that the senior judge—the Lord Chancellor—was a member of the Cabinet and of the Parliament and that the Parliament had the Leaders of the Houses within it and the Cabinet had them as well. We did not come upon all those relationships by accident and we tinker with them at our peril.

One comment that the Lord Chancellor made in his Mansion House speech—I always enjoy his comments—was about reaching an accommodation over the Constitutional Reform Bill. He said:

There is more than a grain of truth in that. It was a back-of-the-fag-packet job in the beginning, and it was only after a lot of hard work—Lord Woolf must take a
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good deal of credit for it—that the Government were forced to confront issues that they had simply not thought about.

As hon. Members will recall, the great mission in the reshuffle was to get rid of Lord Irvine. They could not think how to do it, and eventually someone came up with the bright idea, “Let’s abolish the role,” so the role of Lord Chancellor, which had been with us for more than 1,000 years, was scrapped to get rid of Lord Irvine. That was such an ill-thought-through package that the Lord Chief Justice was telephoned five minutes before the press announcement was to be made; that was the consultation. There were 400 amendments as the Bill was considered. It was an example of how not do to constitutional change; but enough of that.

Simon Hughes: It was as the hon. Gentleman said, but I hope that he will recognise that some of us—I do not take the entire responsibility or credit—had been trying for quite a long time to work out what a new constitutional settlement should be, and had written that down and thought through most of the answers. The Government might have been pulling out the fag packet, but some of us had sought to put forward a clear and rounded proposal—and we have more or less arrived at that.

Mr. Heald: I am quite happy to acquit the hon. Gentleman on this one. It was the Government who at the time, on the back of the reshuffle, stumbled on the idea that he had been in favour of for some years.

In considering how our separation of powers works, it is important to recognise that it is a bulwark against arbitrary Government. If the legislators get to draft the laws but those laws are interpreted by independent judges, with the purpose of ensuring that the law rules and is applied universally and equally according to the facts, the situation is not reached in which politicians intervene in individual cases or judges make up the law as they go along. That is a very important safeguard.

The independence of the judiciary was a major issue that arose from the decision to remove the role of the Lord Chancellor. The Lord Chancellor had stood up in Cabinet for that independence, and that role was also seen as linked with the effectiveness of the legal system. He was therefore a very important person in the scheme of things. After the huge row that engulfed the Government following the reshuffle the role was eventually changed, rather than destroyed. The concordat that was reached puts the Lord Chief Justice at the top of the tree of judges, whereas the Lord Chancellor retains the role of speaking up for the judges and the legal system.

It is inevitable, given the Lord Chief Justice’s new role, that he will want to—and should—speak out more in public. I do not altogether agree with the hon. Member for Sheffield, Hallam about that. Obviously, the Lord Chief Justice must be careful about what he says and how he says it, but I should expect him to say more, publicly, than he previously did.

The recent cases that have been decided against the wishes of the Government have been a test of the new arrangements. It is still too early to say whether they will work as well as the old ones, or, indeed, as well as we should all hope. Some Ministers and ex-Ministers
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simply do not get it. The right hon. Member for Sheffield, Brightside (Mr. Blunkett) attacked judges, in The Sun, for overturning anti-terror legislation in the name of human rights—obviously forgetting that he had been a member of the Government who had put the Human Rights Act 1998 through Parliament. It was not a great surprise that the judges were interpreting that law as they did. Decisions such as the one made in the Belmarsh case and the one, which has been mentioned, made by Mr. Justice Sullivan about control orders, were perfectly understandable and were decided as one would have expected. Many of us certainly said that those outcomes were quite likely.

Then Judge John Griffith Williams QC sentenced Craig Sweeney to life and the Home Secretary intervened and asked the Attorney-General to refer the case to the Court of Appeal as “unduly lenient”, because the operation of the tariff would mean that it would be five years before probation could be considered. Yet the judge had followed the tariff exercise exactly. The great mystery is how someone learned in the law, such as the Under-Secretary of State for Constitutional Affairs, the hon. and learned Member for Redcar (Vera Baird), could have chosen to join that ignorant bandwagon. It was, therefore, a good thing when the Lord Chancellor eventually slapped them down and explained that the judge had acted correctly. He required the hon. and learned Lady to apologise, and that seemed to be a straw in the wind suggesting that perhaps things were going to work.

However, it is worrying that we have a Prime Minister who says that our legal world is behind the times in relation to terror legislation, and suggests that judges are getting it wrong, directly or indirectly, while the Lord Chancellor must mop up behind other Ministers such as the Home Secretary and the Under-Secretary. The Constitutional Reform Act 2005 provides that all Ministers—not just the Lord Chancellor—are supposed to stand up for the independence of the judiciary. In my view it is too early to say whether the arrangement that we have will work.

Simon Hughes: Does the hon. Gentleman ever think that the reason why Ministers take such a view about criminal law is that they have not briefed themselves about the facts? The facts are that the number of life sentences has risen in the past decade from 3,000 to about 6,000; the number of people sent to prison by the magistrates courts has gone up considerably; the length of sentences has risen; and prisons are fuller than they have ever been. Ministers do not appear to check what the courts are doing before they suggest that they may be going about their business too leniently.

Mr. Heald: The hon. Gentleman makes the general point—which is right—that many Ministers are pretty ignorant about what is going on. However, the more particular point can be made about the Sweeney case that the guidelines were set down in Government legislation passed by a majority in Parliament. As Sir Oliver Popplewell, a former High Court judge, said in a newspaper article recently:

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It is surprising that the Home Secretary, who is in charge of sentencing policy in the Government, would not know that, or that, if he did know it, he would be so wrong as to attack judges for something that is his fault.

The hon. Member for Sheffield, Hallam was right to say that there are some political decisions being taken in this context. One wonders whether they are being taken with spin in mind, to try to give the false impression of being tough when one is not; perhaps that is at the root of it. We all know that many of the problems in our courts are caused by the fact that sentences are being increased, as a result of new offences, without anything being done to provide the additional prison places needed to respond to that increase. I do not think that we can have it both ways. If we want fewer prison places we must probably take a softer approach to sentencing, which would not be very popular. It should not be possible to have it both ways—to appear tough and to run the system into the sort of chaos that it is in at the moment.

Sir Oliver Popplewell makes the point, which fits with other remarks that have been made, that when everyone thinks that someone

He is writing about the Sweeney case. He continues:

He goes on to say that judges would welcome honest sentencing. Who could disagree with that? Things have obviously got very complicated.

When I used to go to the courts, the prisoners would have a rough idea—better than anyone else—of the time that they would serve, but they would still go down to the cell block and ask the officer there, “I think I’m actually serving three years, aren’t I?” The sentence would have been much more than that. The system is so complicated that even experts such as persistent criminals and custody officers do not know how long the person is serving unless they use a calculator. It is a peculiar system, and it is absolutely right that we should do something about honest sentencing—a policy that the Conservatives have put forward on many occasions.

Mr. Hollobone: Does my hon. Friend believe that there is enough parliamentary scrutiny in the system with the Sentencing Guidelines Council? I should think that most members of the public feel that inappropriate sentences which do not reflect the nature of the crime are being awarded in many cases.

Mr. Heald: Certainly, there is sometimes a public perception that criminals are not being properly sentenced. My experience of judges is that they are doing their very best to give the right sentence for the right case, and that by and large they get it right. I do not think that we have a general problem, but my hon. Friend might be right that there is a public perception that the system does not work as well as it should. There may be a case for more debate in Parliament, and it may be right to consider further ways of scrutinising the system, but my instinct is that a bit of self-restraint
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from the media and the political world regarding judicial independence and sentencing would not go amiss. That may be because I am a lawyer by background, and my hon. Friend is right to ensure that I am kept on the straight and narrow and consider what the public think, but I do not think that we have a problem with our judges and courts. Neither do I agree with the Prime Minister when he says that we should modernise the whole process—meaning throw away some of our fundamental and ancient liberties, which are important to us.

The debate is timely, and it is right that the Conservatives are considering a Bill of Rights and how it might operate. We have started to consider the scope of it, but it is not an easy exercise. There are already several attempts out there, such as the European convention on human rights and the European Union charter of fundamental rights, and we are being careful to look at the relevant issues constructively. I welcome the cross-party support given to us by the hon. Member for North Southwark and Bermondsey in that endeavour, but all I will say to him is, “Watch this space.” We are doing a serious job, and will hopefully be able to co-operate with parliamentarians of all parties in seeking a solution which meets the British need. One problem with the Human Rights Act 1998—I do not know whether the hon. Gentleman agrees—is that it did not give us the margin of appreciation, which would be extremely useful. If we can include that in a Bill that is genuinely British in its intent, we can do something worth while.

11.53 am

The Minister of State, Department for Constitutional Affairs (Ms Harriet Harman): I congratulate the hon. Member for North Southwark and Bermondsey (Simon Hughes) on his choice of subject for the debate, and I welcome the comments of his colleague the hon. Member for Sheffield, Hallam (Mr. Clegg) and those of the hon. Member for North-East Hertfordshire (Mr. Heald). In order for there to be a right relationship between democratic accountability, through Members of Parliament holding the Executive to account, and the independence of the judiciary, these issues must be the focus of attention. There are no easy answers, and we must keep the focus on these issues and keep the principles clear.

This important subject sits against a background in which people now expect much more that institutions will be challenged. That is a welcome trend; the idea that we have to accept what somebody says because they are a Government Minister is no longer the spirit of the times, and rightly so. That is why we introduced the Freedom of Information Act 2000—so that people can see what Governments are doing in the name of the public. We also introduced the Human Rights Act 1998, so that Ministers and legislation can be held to account regarding their compliance with the European convention on human rights.

We must recognise that people expect to be able to challenge such people and laws and hold them to account. That does not threaten people’s deep commitment, across all political parties, or the strong public opinion that it is the responsibility of Parliament to make the law through elected Members of Parliament, who are accountable to their constituents and can be chucked out at an election. It is therefore our responsibility to make the law, and it is judges’ responsibility to interpret
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individual cases on a case-by-case basis. Although members of the public and the press often criticise judges, they strongly believe that having an independent, robust judiciary is the best system that we can have. However much people want the press to rail against judges, they do not want the independence of the judiciary to be interfered with.

Mr. Heald: I am sure that the Minister will agree, though, that it is important that the media should be able to report cases and put a point of view forward, and that we should be concerned only by extreme criticism.

Ms Harman: Yes; I accept the hon. Gentleman’s point. However, the climate can sometimes become difficult if the press engage in a hue and cry, particularly against individual judges. It is important that the Government, particularly the Lord Chancellor and the senior judiciary, recognise that and support the judiciary in their important work. It is also important that the judiciary should know that they have the backing to do their jobs independently and according to the law.

Simon Hughes: Does the Minister therefore agree that it was not helpful—I am trying to use a neutral word—for The Sun to publish a page naming and shaming judges, on the basis of partial information in some cases, seeking to say, “These are the lenient judges; these are the tough judges,” and therefore stereotype people? That cannot be helpful because it simplifies what is actually a more complex set of assessments.

Ms Harman: Having spoken to many judges in my work as a Minister for my Department, I know that judges find such headlines threatening. We need to respond by assuring them that we and the public see that it is important that they should be able to get on with their work and make their judgments independently. As well as saying that—the hon. Gentleman talked about fine words—we have sought to enshrine it in legislation with the Constitutional Reform Act 2005, which hon. Members have mentioned. It is no bad thing that that Act received a great deal of input from the previous Lord Chief Justice and was the subject of many hours of debate in the House of Lords. Whatever its starting point, by the end of the debate many people had had an input. The Government did not claim to be the purveyor of all wisdom on the issue, and many people made a contribution. That is not a bad thing.

The Act writes into statute, for the first time, a guarantee of judicial independence. Hon. Members will know that when judges take office they take an oath, which I know that they take seriously—as we all do. The oath is:

That is the task that they have to carry out, and they must be independent, irrespective of any criticisms of their judgments. That is sometimes difficult, and to that extent the Government are keen to support judges in the important role that they play.

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Where the Home Office is a party to a case, or a litigant, but loses the case that has been taken against it, it would obviously be right for it to consider whether to appeal. It will say, “We don’t agree with this judgment. We’re a party to the case and we’ve put our argument in court, but the court has not agreed with it. We don’t agree with the court, so we’re off to the Court of Appeal.” The Court of Appeal might not agree with the Home Office, and at that stage the Home Office can say, “We don’t agree with the Court of Appeal either; we’ll see you in the House of Lords.” We must be clear that, in cases where the Home Office is a party defending an action, there is no dishonour in it being a robust litigant.

Mr. Heald: I totally agree, but does the right hon. and learned Lady not agree that the language used by Ministers is important? It is not acceptable for the Prime Minister to describe the decision in the case of the Afghan hijackers as an “abuse of common sense” or for the Home Secretary to describe the sentence in the Sweeney case, which had nothing to do with the Home Office as prosecutor, as “unduly lenient”.

Ms Harman: All our language should reflect the respect that each bit of the constitution has for the others. It is always good for people to speak passionately about how they feel, but at the same time they must think about the effect of their words on different parts of the system.

On the Sweeney case, and the fact that the Home Secretary would have invited the Attorney-General to consider an unduly lenient sentence, all manner of representations are made to the Attorney-General, as I know from my time as Solicitor-General and from having spoken to previous Attorneys-General who had responsibility for referring cases to the Court of Appeal under the unduly lenient sentence jurisdiction. At the end of the day, Law Officers know that they have a responsibility simply to consider the facts of the case, the law and whether public confidence would best be served by referring the case up to the Court of Appeal. Everyone who takes up the great office of Attorney-General, and indeed Solicitor-General, is sufficiently robust to know that it is of cardinal importance that they make their decisions in the public interest and not as Members of Parliament or, indeed, as members of the Cabinet. That has always been the case for all Law Officers.

However, this is one of those things that is quite difficult to prove. One cannot demonstrate that someone is not submitting to pressure; people can see the pressure being applied, but how can they tell that it is being resisted? When I discussed that with previous Conservative Attorneys-General and Solicitors-General, their advice was, “You just have to remember that you have sworn an oath to act independently. You just have to get on with it. At the end of the day, people will recognise that.”

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