---

Independence of the Judiciary

The apology should be mine. I am unaccustomed to our having a double helping of contributions from the Liberal Democrat Front Bench—it 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 emphasis—some would even argue blame—from 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 judge’s 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. Friend—notably, this weekend’s 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 cost—a major cost, in my view—of 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 dark—or a very cynical move if it is not just a leap in the dark but a deliberate evolution of the debate—to 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 motion—an increasingly antagonistic dynamic between the Executive and the judiciary—erodes 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 the Member on securing the debate. I very much hope that it helps in some small way to persuade the Executive—Ministers—to 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.