Nick responds to the Queen's Speech on Home Affairs and Justice, December 2008

Nick highlights the need for reform

Nick Herbert (Arundel and South Downs) (Con): Yesterday we saw the Lord Chancellor, in all his finery, skilfully walking backwards, which he did most expertly. That was entirely appropriate, because retreat has been the story of the Prime Minister's programme on constitutional renewal.

Back in July last year, when the new Prime Minister made his first statement to the House, he promised a

"national debate...founded on the conviction that the best answer to disengagement from our democracy is to strengthen our democracy."-[ Official Report, 3 July 2007; Vol. 462, c. 819.]

Constitutional change was not peripheral to the Government's agenda; it was central to their programme-"founded on...conviction". That conviction cannot have been very profound, because just 18 months later, the constitutional agenda has all but disappeared. It has become clear that the Prime Minister had no great vision of a new settlement, just the immediate political challenge of dissociating himself from his predecessor.

The Prime Minister soon discovered that just repeating the word "renewal" did not renew anything, least of all his reputation. The work of change did not work, so spin doctors were fired and a new purpose was sought. Now the Prime Minister has found a different posture, on the global stage-"Never mind British democratic renewal; it's time to save the world." A supposed programme for long-term constitutional change has now been cast aside in a second, desperate attempt to establish a new narrative.

What we are left with is neither reform nor renewal, just tinkering. Eighteen months on from the grand promise, we do not even have a proper constitutional renewal Bill, just an ongoing draft Bill, with an indication that the real thing will be introduced when time allows, and we all know what that means. The Prime Minister said:

"Constitutional change will not be the work of just one Bill or one year or one Parliament".-[ Official Report, 3 July 2007; Vol. 462, c. 815.]

Now we know what he meant. At this rate, we will not see a constitutional renewal Bill until the next Parliament. We are left with a few draft measures that are worthy enough in their own right, but completely inadequate to address the real problems of public disengagement and imbalance in our political system.

Last year, the Justice Secretary told us:

"I hope that a consensus can be achieved on the constitutional renewal Bill".-[ Official Report, 7 November 2007; Vol. 467, c. 148.]

However, he cannot even find consensus among those on his own Benches. His predecessor, Lord Falconer, said that the Bill was not so much constitutional renewal as constitutional retreat. The Joint Committee on the Draft Constitutional Renewal Bill, which was chaired by the right hon. Gentleman's colleague, the hon. Member for Hastings and Rye (Michael Jabez Foster), said:

"it is difficult to discern the principles underpinning it,"

which is a polite way of saying, "It's a dog's breakfast." More than one commentator has described the Bill as a miscellaneous provisions Bill. Professor Adam Tomkins of the university of Glasgow told the Joint Committee that

"to call this Bill a Constitutional Renewal Bill is an exaggeration...of both the terms ‘constitutional' and...‘renewal'."

The Bill contains some worthwhile measures, among them the repeal of sections of the Serious Organised Crime and Police Act 2005, which has seen people arrested for reading out the names of the dead at the Cenotaph, but which can apparently do nothing about the permanent encampment that has taken root in Parliament square. Citizens should not have to petition the police for the right to make themselves heard by Parliament. After all, it was the Prime Minister who said last October:

"we can start immediately to make changes in our constitution and laws to safeguard and extend the liberties of our citizens,"

which included

"respecting and extending freedom of assembly".

With the constitutional renewal Bill still only in draft form, will the Government consider including the provision to deal with the issue of protests in Parliament square in the policing and crime Bill instead, which is at least a real Bill and will be introduced in this Session? Perhaps the Metropolitan police does, after all, have enough to do at Westminster.

The Justice Secretary is in full constitutional retreat. Last year, he promised to publish a Bill of rights and responsibilities. He travelled round the world talking about it. He delivered learned speeches to academic audiences. He even flew to Washington to tell the new world that he was going to modernise Magna Carta. Only new Labour could utter that phrase with no sense of irony or endorse its revolting suggestion that all our ancient rights need is a makeover from a spin doctor.

What has happened to the Bill of Rights? The Justice Secretary's constitutional adviser, Lord Lester, has resigned, saying that the Government's proposals are unworkable. Since none of us has seen the proposals, it is hard to know. Where is the statement of British values? When does the Justice Secretary plan to publish it-on the new British day, perhaps? Last March, the Prime Minister said, "Today"-I emphasise the word "today"-the

"Secretary for Justice is consulting throughout the country on a statement of values and on the case for a full British bill of rights".

After nine months, will the Justice Secretary say how his consultation throughout the country is going? He cannot, of course, because it has not happened.

The Prime Minister said last year that the consultation would begin "in the autumn". In October last year, the Minister of State, Ministry of Justice, the right hon. Member for North Swindon (Mr. Wills), told the House that he would "shortly be announcing" it. In November, he said that work was "still under way". By February this year, he claimed that the Government were "about to launch" it; then he said it was launching "before Easter". After Easter, they were still "finalising the process". In May this year, the Justice Secretary said he would be making an announcement "before the summer recess". The build-up to the statement of values is acquiring a tantric quality. The question must be asked how much value the Government believe this statement of values still has. [Interruption.] I am glad the Home Secretary understood the reference.

During the debate on last year's Queen's Speech, the Justice Secretary promised us

"All the changes that...the Prime Minister...set out in his historic, first statement".-[ Official Report, 7 November 2007; Vol. 467, c. 146.]

So let us have a look at that historic first statement.

Chris Huhne (Eastleigh) (LD): I am grateful to the hon. Gentleman for giving way, particularly since he was getting into some splendid references to tantric flying and all the rest of it. I wonder about his own position on one particular issue-the British Bill of Rights. Does he agree that a British definition of rights would inevitably call into question our commitment to universal human rights, which we are about to celebrate on 10 December, or, indeed, to the European convention on human rights? Can we not see certain dangers in history where societies have defined rights for their own citizens, but some numbers of those citizens subsequently discover that the rights do not cover them? That is why it is so important to cleave to universal human rights rather than to British rights.

Nick Herbert: No, I disagree. We will all celebrate the 60th anniversary of the universal declaration of human rights next week because it was surely a landmark document. It is common ground throughout the House that there is no intention to resile from the European convention, although there is a difference between the Opposition and the Government, and perhaps the hon. Gentleman, about whether a British Bill of Rights should replace the Human Rights Act 1998 or be added to it. I do not see any of the problems that the hon. Gentleman mentioned.

Andrew Mackinlay (Thurrock) (Lab): On the question of the Bill of Rights proposed by the Justice Secretary some time ago, I cannot help feeling that what we want is a reaffirmation of the existing Bill of Rights of 1689 and a reminder to Members of Parliament about the importance of article 9. Under article 9, to quote the previous Clerk, Parliament has "comity with the courts". I remember being laughed at when I said that this was the High Court of Parliament, but the Clerk mentioned comity and no Metropolitan police officer would go messing around in the chambers of a court. We are a court, so everyone needs jealously to safeguard article 9-and I would hope to have a little teach-in for all MPs about its importance and enduring value.

Nick Herbert: I am grateful to the hon. Gentleman for reminding us of the important lesson that this Parliament is indeed a court; indeed, it is sometimes said that the House of Commons is the highest court in the land.

Mr. Mark Field (Cities of London and Westminster) (Con): Further to that comment and that of the hon. Member for Eastleigh (Chris Huhne), does my hon. Friend agree that the notion of universal human rights is nonsense? It is simply the accretion of the rights that we have in this country-rights that have been won for us by many generations in the past. That is why we hold those rights so firmly to our hearts. Those are the rights that we are debating now and have been debating over the last 48 hours. It is for that reason that this party has traditionally not wanted to codify a Bill of Rights; and it has certainly always looked askance at the notion of the declaration of universal human rights.

Nick Herbert: My hon. Friend sounds as though he might be a fan of Bentham, who described the idea of natural rights as "nonsense upon stilts". I nevertheless believe that the universal declaration has immensely important symbolic value, conceived as it was in the aftermath of war and genocide as a symbol of the determination of the United Nations to ensure that never again should such atrocities take place. The issue for us is to work out whether the current discourse on human rights is devaluing the concept of those great rights that were talked about at that time.

Chris Huhne: I am grateful to the hon. Gentleman for giving way because he has made precisely the point under discussion. He clearly understands the importance of the universal declaration as Eleanor Roosevelt championed it-that is, precisely in the wake of the holocaust and the genocide, no society should ever again be able to take some of its own citizens and say, "You do not have rights that the rest of us have." That is why it is so dangerous to talk about British rights when we should be talking about human rights.

Nick Herbert: The hon. Gentleman might be aware that both sides are talking about not just British rights, but British rights and responsibilities. As we will continue to remain a party to the European convention and as we will remain subscribed to the universal declaration, I do not see that there will be any problem of the kind he sees with a British Bill of Rights and responsibilities better to clarify rights and responsibilities as they apply directly in our legal system.

I was talking about the Prime Minister's first historic statement on constitutional change and the helpful publication by the Secretary of State for Justice and Lord Chancellor of a scorecard to show how the Government are getting on with that. The Prime Minister identified 12 important areas in which the Executive will surrender or limit their powers. The first was
"the power of the Executive to declare war".

The Justice Secretary says that

"a draft resolution was published in the Constitutional Renewal White Paper",

which is

"currently undergoing pre-legislative scrutiny by a Joint Committee".

So, let us put that one down as not done.

Secondly, the Prime Minister referred to

"the power to request the dissolution of Parliament".

The Justice Secretary says that

"the proposal is subject to ongoing enquiry".

Again, it is pending. But I think that I can make him this offer on behalf of my right hon. Friend the Member for Witney (Mr. Cameron): if the Government want to request a dissolution, I guarantee that the Conservative party will support them.

Thirdly, the Prime Minister referred to

"the power...to ratify international treaties".

That is in the still-in-draft Bill on constitutional renewal. Fourthly, he referred to

"the power to restrict parliamentary oversight of our intelligence services".

The Justice Secretary says that reform is

"in progress...the Government proposes to seek parliamentary endorsement of these proposals".

So that is another not done.

Fifthly, the Prime Minister referred to

"power in the appointment of judges".

That has gone down with the Bill on constitutional renewal as well. Sixthly, he referred to powers over the granting of passports and said that the Government would announce the timetable on that in due course. Seventhly, he referred to powers over

"the granting of pardons."

A consultation paper has been issued. Eighthly, he referred to

"power to direct prosecutors"-

stalled. Ninthly, he referred to

"power over the civil service".-[ Official Report, 3 July 2007; Vol. 462, c. 815-16.]

That has been arrested. Nine broken promises, and we are in only the third paragraph. Is that what the Prime Minister meant when he talked yesterday about "change you can believe in"?

The Justice Secretary went on:

"New rights for the British public to be consulted through ‘citizens' juries'".

Perhaps he can tell us how many citizens juries his Department has held? I can tell him-none.

Of course, I must be fair about the promises that the Government delivered on: a discussion paper on electoral systems, consultations on weekend elections and lowering the voting age, and consultations on when the Union flag might be flown. The Justice Secretary is mistaking the publication of consultation documents for delivery. What we need is action-action to give citizens and communities real power over the issues that matter; action to address the West Lothian question; action to restore the integrity of the vote; and action to stop Ministers walking all over Parliament, because for all his talk about strengthening Parliament, this Prime Minister's actions show little but contempt for Parliament and determination to maintain control: expanding the payroll vote, so that almost half his parliamentary party hold a paid or unpaid post in the gift of the Prime Minister.

There are now 121 Ministers. We had only 74 when we were fighting the second world war. Answers to parliamentary questions are given to friendly journalists before MPs have had a chance to read them. Announcements are trailed in the media before the House is informed and there is routine programming of Bills. With that in mind, when the Government's draft legislative programme was published, we were told that there would be a coroners Bill and a victims and witnesses Bill. Instead, they will now be squeezed into one. I know that the Justice Secretary is serious about parliamentary scrutiny, so could he answer this? Will there be adequate time to scrutinise both parts of this Bill, given that proceedings on recent criminal justice Bills have been disgracefully truncated, particularly on Report? We were barely able to debate whole sections of the last criminal justice Bill.

There are aspects of the Bill that we support. We welcome reform of the homicide laws and of the law on infanticide, and I am glad that we have finally had some movement on reform of the coroners system. Last year I said that the Bill was dead on arrival. It now seems to have made a miraculous recovery.

A brief about the coroners and justice Bill has fallen into my hands. It appears to have been produced for the parliamentary Labour party. I dare say that it has been leaked. No doubt an immediate inquiry will be launched. Perhaps the police will want to interview me, although of course the right hon. Gentleman would claim no knowledge of that. I know that Labour resources are low but the right hon. Gentleman might be concerned about the quality of the briefing. It says:

"The Bill introduces a scheme to prevent criminals profiting from exploiting the conservatives of their crimes."

I was not aware that the Conservative party was the victim of criminals, but we are very grateful for the Labour party's fraternal support.

My hon. and learned Friend the Member for Beaconsfield noted that, in October, the Government sensibly withdrew proposals in the Counter-Terrorism Bill that would have allowed Ministers to remove coroners and juries from inquests where the Minister deemed it in the public interest. That provision was far too broadly drawn and I hope that the Justice Secretary will assure us that he will not attempt to bring it back in the Bill.

Our co-operation on emergency legislation, including allowing evidence from anonymous witnesses in court, was predicated on the inclusion of a sunset clause, and an explicit undertaking was given that the issue would be revisited. We therefore welcome the confirmation that the Government will revisit the measures in the Bill and the Justice Secretary has already helpfully written to me to explain their current thinking on the issue. We will of course co-operate fully to ensure that that legislation is properly brought on to the statute book on a permanent basis.

It is entirely right also that we strengthen the powers of the Information Commissioner. The past year has highlighted the cavalier attitude within Government to the handling of personal data and the House will not need reminding that the Government have lost the details of very nearly every parent in the country, of many RAF veterans and of prison officers. Indeed during the passage of the last criminal justice Bill, we advocated-in line with a suggestion by the Information Commissioner-criminal penalties for the loss of personal data. The Government did not feel able to support us then; perhaps they will now.

It is remarkable that a Government who have such a shocking inability to retain people's data should be so eager to amass yet more. So while there will also be situations in which it is right to share data or where the sharing of data can better enable delivery of public services, we will want reassurance that measures to increase the Secretary of State's powers to compel data sharing and to remove any unnecessary obstacles will not grant Ministers the power to create a database state by stealth.

As well as ideas that we welcome, there are some that we are pleased to see the back of. The Gracious Speech confirms that the Government's proposals outlined this time last year for a sentencing commission will not be taken forward. The mechanism that Lord Carter advocated-a grid system for courts that would link resources to sentencing-would have seriously undermined judicial discretion. I am glad to say that the proposal, which almost nobody thought was sensible, has been ditched. Instead we have the downgraded proposal of a sentencing council; another retreat. We will closely scrutinise the remit and powers of the new body to ensure that it brings advantages and in no way undermines the autonomy of judges and magistrates to apply appropriate sentences.

In May, the Government told us that there would be a law reform, victims and witnesses Bill. Now those words have disappeared from the title of the justice Bill. I hope that that will not reflect any downgrading of the importance of promoting the interests of the victims of crime. The Government say that the Bill will deliver a more "effective and transparent" justice service for victims. We hope so, but the Government's record hardly inspires confidence. An effective justice service would include an efficient and well-administered compensation scheme for victims, but last month the Public Accounts Committee reported that two thirds of victims of violent crime are unaware of the Criminal Injuries Compensation Authority and only one in 20 even apply for compensation. That was the second serious indictment of the authority's failures by the Public Accounts Committee in eight years. Nothing has happened, so what will this Bill do about a victim compensation scheme that is not working?

An effective justice service for victims would mean prisoners serving the sentences handed down to them by the courts-not being released automatically at the halfway mark and then being rewarded with an extra 18 days off because Ministers failed to plan for adequate prison capacity. Victims of crime need real support, but unless they are a witness needing anonymity what will this proposed legislation do for them? Will there be measures to improve the court process for victims, which we all know can be traumatic? What about the victims of crimes committed by offenders on bail? After a string of cases earlier this year where victims were murdered by suspects on bail, we announced proposals to tighten the law. The Prime Minister seemed to agree, but the Justice Secretary was silent. Finally, he announced in June a consultation on limited changes to the law, but there has been nothing since then. Will he bring forward proposals to tighten the bail laws, or not? Will that be another retreat? If the Government truly care about victims, why has no one been appointed as a victims commissioner, five and a half years after they announced that there would be one? If they care about victims, why do they continue to release prisoners early when they know that some of them will create new victims when they should have been safely behind bars? At least 800 such offences have been committed, including one murder and two more alleged murders.

When the Ministry of Justice was created 18 months ago we were promised a new approach: joined-up offender management and clear leadership. Instead, we have lurched from the scandal of early release to the fiasco of C-NOMIS, and from the daily crisis of prison overcrowding to the loss of prison officers' names and addresses. In place of a coherent long-term programme of reform, we have a series of gimmicks and short-term initiatives. What about the prison ship that the Justice Secretary promised-and told The Sun a year ago that he was personally in talks with the Dutch Government about? Where is this ghost ship? Perhaps his Government did not need it in the end; they chose to release 40,000 criminals early instead. Then he gave a speech calling for more punishment. That was just after he had passed legislation giving tagged criminals more time off their sentence for days they spent at home in bed.

Then there was another announcement, just this week: coloured bibs for offenders serving community sentences. Quite right, too, but it has taken Ministers years to deliver on that repeated promise; and, like this Government's modest constitutional changes, it is worthy but inadequate. Putting offenders in branded bibs can only be one element of a serious plan to make community sentences more effective. It will not change the fact that a third of community sentences are not even completed and one in 10 offenders commit another crime while serving their sentence. The tragedy is that by failing to rehabilitate offenders this Government are creating a new generation of victims.

It is the Conservative party who are now showing that we have the progressive vision to reform prisons and turn around our criminal justice system, and so make Britain a safer place. We are the ones who are talking about a rehabilitation revolution to reduce reoffending. We are the ones talking about unlocking the voluntary sector to help prisoners get off drugs, into accommodation and back into work. We are the ones with a serious plan to reduce the growth in prison population without letting offenders out early.

By contrast, the Government, who spoke of renewal just 18 months ago, have fallen back on Tony Blair's trademark eye-catching initiatives: short-term policies to mask the absence of long-term strategy. Their first phase of reforms was too often partisan if not in aim, as the need for change was sometimes real, then in practice. However, as the Justice Secretary has said, the constitution does not belong to a single political party. Too often, this Government have pulled blindly at the wires of Britain's constitutional settlement, careless of what they might disconnect. The fact that the right hon. Gentleman continues to hold the office of Lord Chancellor in spite of Tony Blair's overnight attempt to abolish the post is evidence of that. We desperately need a new politics where public trust can be rebuilt and power is returned to the people, to whom it belongs. We need a radical agenda of constitutional change to devolve decision making and power to individuals and communities, to enhance accountability and to strengthen the role of Parliament. Mending Britain's broken politics cannot be done by a Government who promise renewal and then abandon it, and it cannot be done by meagre parliamentary Bills, still less by Bills that remain only in draft form. Real change will not come from this Queen's Speech; it will come in one way alone-by a change of Government.


Document type

Speeches

Published

4 December 2008

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