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Mr. Michael Howard (Folkestone and Hythe) (Con):
I begin by adding my tribute to those that have already been paid to our servicemen who have most recently
and tragically lost their lives in Afghanistan. I also add my congratulations to those that have already been offered to the mover and seconder of the Loyal Address.
This is the 27th and last Gracious Speech that I have been privileged to listen to as a Member of this House. Over the years, I have come to realise that the Gracious Speech is often more significant for what is not in it than for what is. That is particularly true on this occasion. To look for what I had hoped to see in the Gracious Speech, I went back to my maiden speech, which I made in the House on the 29 June 1983. On that occasion, I expressed concern that the powers of this House might be emasculated over a period by a combination of the increasing encroachment of the powers of what has since become the European Union and the proposals for regional government that the Alliance parties were then advancing. My concerns over the former have certainly been justified; my concerns over the latter have not-at least, not in the form that I then feared. That is largely due to the good sense of the people of the north-east, who resoundingly rejected the Government's proposals in the referendum that took place some years ago.
Martin Horwood: I am sure that the right hon. and learned Gentleman's memory is very good, so he will remember that in those days we were campaigning for regional, elected government that took powers from London down to the regions, not the exact reverse, which we have now.
Mr. Howard: I am not entirely sure that that distinction would have been foremost in the minds of the people of the north-east when they came to vote so recently.
However, the intervening period has seen devolution and the creation of the Scottish Parliament and the Welsh Assembly, and my right hon. Friend the Leader of the Opposition is quite right to recognise that not all those changes can or, indeed, should be reversed. I fully support, in particular, his approach to our relationship with the European Union, and I am more confident than many commentators that he will be successful in his objectives. But one of the biggest threats to the powers of this House has come from a source that I did not identify or anticipate in my maiden speech. I did not then foresee the extent to which a challenge to the powers of Parliament would emanate from the judges, and it is to that threat that I propose to devote the remainder of my remarks.
Over the past quarter of a century and, perhaps, longer, we have seen a steady shift in power from Parliament and Government to the courts. To begin with, we saw an expansion of the traditional power of the courts to review the exercise of power by the Executive. Traditionally, this power, which is a necessary safeguard to curb the illegal, arbitrary or irrational exercise of power by Government, was exercised with restraint. In particular, the courts would in the past have been very careful not to quash decisions because they disagreed on the merits of the decisions under challenge. That restraint has more recently become conspicuous by its absence. As the former Lord Chancellor, Lord Irvine, put it as long ago as 1995, in his address to the Administrative Law Bar Association,
"the range of circumstances in which decisions may be struck down has been extended beyond recognition."
In that address, Lord Irvine called for judicial restraint. Indeed, he referred to what he described as the
"constitutional imperative of judicial self-restraint,"
and he gave three reasons for it. First, he referred to the constitutional imperative, whereby Parliament gives powers to various authorities, including Ministers, for good reasons and in reliance on the level of knowledge and experience that such authorities possess. Secondly, he referred to the lack of judicial expertise which, he said, made the courts ill equipped to take decisions in place of the designated authority. Thirdly, and most pertinently, he referred to what he called the democratic imperative, whereby elected public authorities derive their authority in part from their electoral mandate. He said:
"The electoral system...operates as an important safeguard against the unreasonable exercise of public powers, since elected authorities have to submit themselves, and their decision-making records, to the verdict of the electorate at regular intervals."
That, surely, is the nub of it. Governments and Members of Parliament are answerable to their electorate, they can be dismissed and they are directly accountable. Judges are unelected, unaccountable and cannot be dismissed.
Simon Hughes: Despite our difference of view on this matter, does the right hon. and learned Gentleman accept that the flaw in his argument is that when he was born more than 90 per cent. of the country voted either Labour or Conservative, whereas nowadays only about two thirds of the country vote for his party or the Labour party, and Governments are sometimes elected with only 22 or 23 per cent. of the public supporting them? That does not give democratic authority to Governments now, in this century and in this country.
Mr. Howard: I do not accept that at all. However, there are changes that can and should be made to our electoral system to make it much fairer than it is today-not through measures of the kind advocated by the Liberal Democrats but by equalising the size of constituencies so that the value of the vote that each member of the electorate casts is much more equal.
Mr. Denis MacShane (Rotherham) (Lab): I am listening to the right hon. and learned Gentleman's speech with great interest, and I am sorry that there are not more right hon. and hon. Members here to hear it. May I pay sincere tribute to the courtesy that the Leader of the Opposition is showing by being in his place for this part of the debate? The right hon. and learned Gentleman criticises judges. Does he remember Michael Foot saying in the 1970s that if we left it up to the judges there would be precious few liberties in Britain? Is he becoming a secret Michael Foot in his last months in Parliament?
Mr. Howard: I am always happy to accept endorsement of my views from such a distinguished source. I, too, pay tribute to my right hon. Friend the Leader of the Opposition for doing me the courtesy of being in his place at the moment.
The difficulties to which Lord Irvine referred have, of course, been exacerbated by the Human Rights Act 1998, for which he himself had direct and personal responsibility; political life is full of little ironies like that. To be fair to the judges, they cannot be blamed for this further increase in the power that they now wield-it is power that has been thrust upon them by Parliament at the
behest of Lord Irvine, among others. How does this arise? In a nutshell, the Human Rights Act requires our courts to apply the European convention on human rights in every decision they make. The convention was drawn up in the aftermath of the second world war; its authors saw it as a safeguard against any revival of Nazism or any other form of totalitarian tyranny. However, the rights that it seeks to protect are framed in very wide terms. I suspect that many of its authors would turn in their grave if they were able to see the kind of cases that are being brought in reliance on it today.
The point about these rights is that none of them can be exercised in isolation. Any decision to uphold one right may well infringe someone else's right, or it may conflict with the rights of the community at large. What has to be done, therefore, is to carry out a balancing exercise in respect of these competing rights. Perhaps the most acute manifestation of this conflict arises when it comes to questions of national security and the difficulty of striking the right balance between security and liberty. Indeed, my right hon. Friend the Leader of the Opposition has spoken about precisely that challenge. The challenge of getting the balance right between these fundamental considerations is one of the most serious and controversial issues that society faces in the globalised world of the 21st century.
The fundamental question is who will be ultimately responsible for striking that balance: elected Members of Parliament or unelected judges? In the cases on terrorism, Parliament twice, after much anxious consideration by both Houses, reached its view. It was not always a view with which I agreed, but it was the view of elected Members of Parliament who could be held to account for it. Yet twice the judges have held that Parliament got the balance wrong; they thought that the balance should be struck differently. In doing so, let it be said that they were not deliberately seeking to challenge the supremacy of Parliament, but simply doing what Parliament had asked them to do. The question is this: should Parliament have asked them to do it? That is a serious question. It will be apparent from what I have said thus far that I believe that the answer is in the negative. I entirely appreciate that others may take a different view, but what I find particularly disappointing is their failure to engage with this crucial argument.
The latest example of that failure is to be seen in the recent speech of the Director of Public Prosecutions. After listing the rights set out in the convention, he said:
"The idea that these human rights should somehow stop in the English Channel is odd and, frankly, impossible to defend."
Of course I agree with that statement-I would not dream of defending the ridiculous proposition that he has articulated in order to destroy it. However, to suggest that that is the issue of concern to those of us who are opposed to the Act is nothing short of infantilising the argument. What those on the other side of the argument from me need to do is justify the transfer of decision making on the balancing of competing rights from elected politicians to unelected judges, but the DPP made no attempt to address that central issue.
John Hemming (Birmingham, Yardley) (LD): In arguing for the repeal of the 1998 Act, is the right hon. and learned Gentleman also arguing that individuals in this country should have no right of appeal to the European Court in Strasbourg?
Mr. Howard: No-I am not arguing that at all, and I will come to that point toward the end of my remarks.
In that same speech, the DPP welcomed the establishment of the Supreme Court, which he said
"presents at least the possibility that we may see a move in time towards perhaps a constitutional court with which other jurisdictions are not only familiar but comfortable."
The reference to "other jurisdictions" is particularly interesting. I wonder how "comfortable" the DPP and others who take a similar view would be with some of the features that are present in those jurisdictions, and particularly how comfortable they would be with features that have evolved precisely to introduce an element of accountability into institutions that are not composed of elected representatives. Would they, for example, be "comfortable" with parliamentary scrutiny of the political backgrounds of candidates for judicial office? I suspect that they would not. Indeed, I would not regard with any enthusiasm the introduction of the kind of hearings that take place in the United States Senate to confirm or otherwise the appointment of senior judges, but if the current trend for judges to take what are in effect political decisions continues, people will become increasingly interested in their political backgrounds.
My right hon. Friend the Leader of the Opposition has indicated his intention to deal with some of these issues if, as I devoutly hope, he is in a position to form a Government after the election. He proposes to replace the 1998 Act with a home-grown Bill of Rights, which I hope will relieve our courts of the duty to carry out the kind of balancing exercise to which I have referred. Such a balancing exercise is better left, in my opinion, to elected Governments.
Mr. Charles Clarke: I am listening to the right hon. and learned Gentleman with great interest and I am very sympathetic to many of his points. Obviously, like him, I have had to deal with many of those issues. However, quite genuinely, I do not understand the difference between a Bill of Rights of the type he is now advocating and the European convention on human rights and, subsequently, the 1998 Act. What different things would be in the two types of measure?
Mr. Howard: The essential, critical difference-I am speaking entirely for myself and am not privy to the work that has been done on the Bill of Rights that my right hon. Friend the Leader of the Opposition intends to introduce-would be to remove from our courts the need to carry out the kind of balancing exercise between competing rights that has been thrust upon them by the 1998 Act. That would be the criterion by which I suggest those proposals should be judged. That is a new element-it was not there before 1998-and has been deliberately put upon the courts by that Act.
Mr. Clarke: Would the rights that the right hon. and learned Gentleman is proposing be in the European convention and outside some kind of UK Bill of Rights, or is it the other way around? He is proposing not different rights, but different regimes. Would that mean withdrawing from the European convention at the same time as having a UK Bill of Rights?
Mr. Howard: My next remarks will deal with our relationship with the European convention.
I hope that my right hon. Friend the Leader of the Opposition renews the efforts made by the last Conservative Government to persuade the European Court of Human Rights to increase what it calls the "margin of appreciation". That is the extent to which the Court respects the right of institutions in the member states to decide these matters for themselves. If the Court came to see itself as more of a backstop to prevent the infringement of fundamental human rights and freedoms, it would command greater respect. In particular, it should be less prone to intervening in those decisions that reflect the striking of the difficult balance between competing rights and freedoms.
The matters on which I have touched this afternoon do not often hit the headlines. But they are, in my view, fundamental to the rights and freedoms of the people we represent in this House and to our ability to defend them. I believe that that ability has been seriously weakened in the 26 years for which I have had the privilege of serving here, and I hope that the next Government will be able to do something to redress the balance.
4.41 pm
John McFall (West Dunbartonshire) (Lab/Co-op): It is a privilege to speak in the Queen's Speech debate, and I welcome the Government's proposed Bills, especially on financial services and financial stability.
Like others, I wish to associate myself with the remarks made from the Front Benches about our troops in Afghanistan and elsewhere. I also commend my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson), who has an office just along the corridor from mine. As they say in my community, he never leaves you with a broken heart-he always has a quip or funny remark-and today he cheered up the whole House. My hon. Friend the Member for Islington, South and Finsbury (Emily Thornberry) gave a clear analysis of where she comes from, her focus on social justice and why she is here. I commend her on her speech.
The issues that arise from the Queen's Speech are political issues, and the big issue is the role of Government. The divisions between the Government and the official Opposition are now clearer than ever. From my vantage point over the past few years, I have seen that state action on the economy is working, and we are still all relying on it. There is widespread agreement among economists and international institutions that the fiscal measures have helped to save us from the abyss. Without them, we could have faced not just a recession but a depression. Lord Skidelsky, the eminent economic historian and biographer of Keynes, wrote in September that during the great depression
"the world economy contracted for 12 quarters in a row. Now it looks as if the contraction will be limited to four quarters. The difference is...this time"-
"pumped money into the economy."
The Leader of the Opposition said in his speech at the Conservative party conference that the economic and financial crisis was caused by the fact that "government got too big". But there is an international consensus that the crisis was caused by the fact that regulation of the financial industry, among others, was not adequate.
No regulator in the world dealt with it adequately. When some of our biggest banks have come close to extinction, almost bringing our economy down with them, because they were poorly run, it makes no sense to say that government needs to be smaller. Indeed, the crisis has come about because government was too small in that area. We saw Adam Smith's "invisible hand", but we did not see Adam Smith's "visible hand".
Mr. Redwood: What did the regulators get wrong during the banking crisis? After all, they were new regulators, established by this Government with extra regulation. Why did that fail?
John McFall: I can point the right hon. Gentleman precisely to the Treasury Committee report on the run on Northern Rock. It was the lack of prudential regulation by the regulator. The regulator agreed, and indeed, its self-examination came to the same conclusion. Prudential regulation is very important-
John McFall: I see that the right hon. Gentleman agrees with me.
Mr. Howard: The regulator on that occasion was the Financial Services Authority. The Gracious Speech proposes to give yet more powers to the FSA. Is not that a reward for failure?
John McFall: No, I do not think so. The regulator realised just how moribund it was in that situation. Lord Adair Turner acknowledged that in his report in March. The chief executive of the Financial Services Authority, Hector Sants, has also acknowledged it. I would like to see those powers being used by the FSA. However, the right hon. and learned Gentleman has made a point that was not covered in his speech, about closer co-operation between the Bank of England and the Financial Services Authority. If we want to ensure that we get through this economic crisis, we should not go for wholesale institutional change. Rather, we should bring the two institutions closer together. I well remember when the Governor of the Bank came before the Committee and I asked him who was in charge. He asked me to define what I meant. That is the issue.
Mr. Chris Mullin (Sunderland, South) (Lab): Was not the real problem the fact that both the main parties bought into the myth of light-touch regulation? Indeed, the hon. Member for Tatton (Mr. Osborne) was still making speeches about the need for more light-touch regulation long after it ceased to be fashionable.
John McFall: Perhaps I will leave it to my hon. Friend eloquently to make the partisan case, while I focus on the rest of my speech.
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