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Independence of the Judiciary

I am grateful for the opportunity to raise an important constitutional subject—the independence of the judiciary. I welcome the Conservative spokesman, the hon. Member for North-East Hertfordshire (Mr. Heald), and the Minister of State, Department for Constitutional Affairs, speaking on behalf of the Government, to what I hope is considered an important debate. I shall be firm but constructive about where I believe that we as a country need to go. I have always taken the view that one of the fundamental characteristics of the United Kingdom is that although it has never been written down in one clear document there has always been a clear separation between the legislature, the Executive and the judiciary. In other places at other times there are debates about how much the Executive are or should be Cabinet-led as opposed to being a one-man band. That is a perfectly proper debate and many of us believe that it is important that the Executive are led by a Cabinet that collects opinions. There is a separate debate to be had about how we ensure that the legislature is properly representative of the United Kingdom. The hon. Member for North-East Hertfordshire and I, and others, are involved in discussions with the Leader of the House about how the second Chamber should become more representative and we welcome those discussions. One immutable element of the debate has been that judges should be independent. My fear is that in spite of the Government’s good intentions when they came to office in 1997 and some clear statements of principle, that has not happened in terms of the view that has been taken by Ministers, including Cabinet Ministers. On occasions, such a view has been taken by Cabinet Ministers as important as the Home Secretary, other Ministers in relevant Departments and, indeed, the Prime Minister. My contention is that fine words and occasional statements of support for the principle are not sufficient if there are regular lapses when the wrath of politicians, particularly Ministers, is turned on judges. There is a difference between your perfectly proper right, Mr. Gale, and that of any of us and of the press to criticise judgments—we are entitled to say that we think that a judgment was wrong—and what has happened. Such criticism has turned into antagonism towards and criticism of judges and the judiciary. For example, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), as Home Secretary, regularly attacked the judiciary as clearly going beyond what we had asked them to do. My colleagues and I have for many years argued the case for a written constitution. We think that the best way to guarantee our traditional values as set down in Magna Carta, the Declaration of Rights and elsewhere and modern issues of principle—for us those would include the right to jury trial for the most serious offences and the right not to be over-beholden to the state, which would permit resistance to and the prevention of the Big Brother identity card system—would be to write all those things down. It is encouraging that in recent weeks and months there appears to be growing support for such a document from across the main political parties. In that time the leader of the Conservative party has expressed an interest in a written Bill of Rights. There are debates to be had about its content and what it should comprise but at least we have the assertion that he thinks it would be a good and valuable thing. The Attorney-General is on record as saying that he believes there ought to be a written constitution. I come to the debate with an unexpected fair wind from the comments made over the summer by the other two main parties and I hope that the Minister can be positive about my final proposition. In addition to the current statutory obligation on the Lord Chancellor and Ministers to defend the independence of the judiciary, which is a recent innovation set down in the Constitutional Reform Act 2005, we ought to have it written in our constitution—a written document that overrides other statutes—that the judiciary should be independent of political influence and of personal political attack. I hope that I can persuade colleagues by the end of the debate and in the months ahead that as we work together to see whether we can agree across the parties on a written constitution, we should see whether we can also agree that judicial independence should be part of that. I sense a rising tide of support for that idea, which is welcome, and if we did so we would be following the tradition of most other Anglo-Saxon, former empire and old Commonwealth democracies where they have both a written constitution and a constitutional guarantee of judicial independence. In many cases, not only in the old Commonwealth and the new Commonwealth but in the rest of mainland Europe, a constitutional court rules on matters where there is a dispute between the public or an individual and the Executive of the day. I want to say one other thing in sympathy and understanding of how we can reach a position where the Government can be so critical so often. What has come to be called administrative law, where people can apply for judicial review in order to have a government decision considered—whether it is made by local government, an agency of government, a Minister or a Department—is obviously a relatively recent development. That has become well-established as a perfectly proper way in which the citizen can check that an authority has not exceeded the power given to it by Parliament. We set down the law and the judges interpret it, and if someone thinks that there has been an excess of power used they are entitled to challenge that. I am talking about administrative law in general, and if the judges find that there has been an Executive excess there is a remedy, which is that Ministers can come back to Parliament and seek to have the law changed to deal with that. The most controversial of such cases in recent years took place in December of the year before last when the House of Lords, in two cases brought by unnamed individuals against the Home Secretary, held in favour of those people and said that their detention in Belmarsh was illegal. My colleagues and I had always argued that it would be illegal to detain people without trial and that that would apply whether they were British or not, and we were vindicated in our view. It seemed to us entirely proper that the Law Lords should then say that that was an excess of Executive power beyond what was intended by Parliament and beyond the normal rights to which people are entitled under the European convention on human rights, which has been part of British law for many years and has been incorporated into it since 1998. There were no grounds for criticism from Ministers of the judges for making that decision because it was made in accordance with a convention that the British Government had signed and an Act that Parliament had passed, which was brought to Parliament by the Government in 1998. A more recent example was the decision of Mr. Justice Sullivan that control orders exceeded the intention of Parliament by taking away more liberty from an individual than was justified by the process. It is possible in this country to take away anybody’s liberty but there must be a proper judicial process to do so, and the judge made it clear that the control order system was not that proper process. Again, that was an argument that my colleagues and I had made. The third type of controversial case was most obviously illustrated by the furore that followed the sentencing of a man called Craig Sweeney by the Recorder of Cardiff on 12 June this year. Mr. John Griffiths Williams QC, the senior criminal judge in Wales, passed a sentence that was then attacked specifically by people who included a junior Minister in the Department for Constitutional Affairs. She subsequently apologised and was rebuked by her seniors. All the commentary after the Craig Sweeney case made clear that the judge had acted absolutely properly and according to the rules within which he was required to work. I have been a Member of the House through all those years during which Parliament has passed laws setting out sentencing guidance—a process that gives advice, with a body of people setting down the sentencing rules. Parliament has become explicit in the rules that it sets out. The result is that judges are far more constrained than they used to be. They now have to discount time served in custody before the trial; and they have to discount a further period—they have to say when the person will be eligible for parole. In fact, Craig Sweeney might well be in prison for a very long time because although an initial date has been given when he might be eligible for parole, the judge made it clear that he should not be released until it was safe to the public to do so. But that decision was misinterpreted—it was greatly recast—to suggest that Sweeney would be released within a short time. 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 cases—about 200—have 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 Minister—the Home Secretary—suggested 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 country—it is against a perfectly proper background—against 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 Ministers—junior Ministers, Cabinet Ministers and even Prime Ministers—continuously 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 about—that 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 quotations—some that I remembered, and some that I had to look up—to show how important it is that we should recognise the distinction between the judiciary and politicians and parliamentarians.