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Independence of the Judiciary

Volume 450: debated on Tuesday 10 October 2006

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.

I am following closely what the hon. Gentleman says, and I agree with him. It is important that those at the top of Government should have an understanding of the principles that he outlines. Does he share my concern that the Prime Minister should have told the Liaison Committee on 4 July that

“our legal culture is behind the times”?

He was indirectly casting aspersions on the sentencing decisions that the hon. Gentleman has outlined. Does he agree that that is worrying?

It is very worrying, and I am troubled. As I said earlier, we all remember that before becoming a shadow Minister or even being in government the Prime Minister was rigorous in attacking the Government of the day whenever there was the suggestion of an attack on judges by Ministers or others. In the nine years since he came to office, he has set a bad example by becoming more willing to criticise; that slippage goes fundamentally against what he used to say—and what I thought the Government believed when they came to power.

The hon. Gentleman and the right hon. and learned Lady will remember that before the 1997 election the Labour party was led in discussions on constitutional matters by Robin Cook, and that he and my noble Friend Lord MacLennan of Rogart negotiated some principles on constitutional reform. Our two parties were then in opposition, but we did it against the eventuality that either or both of us would be in power after the election and that in any event it was better to establish the ground. By and large, those principles have been followed and they were and are extremely welcome.

The first of those principles was the incorporation of the European convention into domestic law, which was entirely supported and pushed through. I remember the right hon. Member for Blackburn (Mr. Straw) marking the passage of that legislation into law. Then there is the welcome change that, when implemented, will separate the House of Lords Judicial Committee from its place in the legislature in the upper Chamber and create a separate Supreme Court. It was controversial, but it was the right decision. In this modern democracy, the Lord Chancellor should not have three jobs. The head of the judiciary should be a judge, not a politician; and the senior court should be entirely independent of the legislature. We support that change.

Those decisions were consistent with the Prime Minister’s original position. However, his views more recently expressed have not been, despite the fact that his colleagues, when pressed, have expressed the earlier view.

The hon. Gentleman will doubtless remember questions like those tabled in the other place to the Lord Chancellor earlier this year, including by Lord Marsh and my noble Friend Lord Goodhart. I shall cite two. Lord Goodhart asked the Lord Chancellor:

“My Lords, Section 3 of the Constitutional Reform Act”—

it came into effect in April this year—

“specifically requires all Ministers of the Crown to uphold the continued independence of the judiciary. Were a Minister of the Crown at any level from the lowest to the highest to describe a judicial decision as an ‘abuse of common sense’, particularly at a time when that decision was under appeal, would the noble and learned Lord the Lord Chancellor regard that as legitimate debate? Does the noble and learned Lord agree that, while The Sun is free to attack the judiciary as offensively as it likes, short of defamation, the same freedom is not enjoyed by Ministers?”

The Lord Chancellor replied:

“My Lords, I agree with the noble Lord that Ministers are under an especial obligation because confidence in the judiciary depends in part on what Ministers say. The noble Lord is referring to what my right honourable friend the Prime Minister said about the decision of Mr Justice Sullivan in relation to the Afghan hijackers. I discussed his comments on Mr Justice Sullivan's judgment with the Lord Chief Justice, and we both agreed that they did not have the effect of undermining judicial independence nor were they intended to do so. The issue of whether or not the Afghan hijackers should go back is a matter of legitimate debate”.—[Official Report, House of Lords, 12 June 2006; Vol. 683, c. 7.]

Although there was some dispute about the Prime Minister’s comments, an answer to a similar question gave the strongest assertion of what the position should be. Lord Goodhart asked what steps the Government are taking

“to ensure that Ministers of the Crown act in a manner compatible with their obligations under the Constitutional Reform Act 2005 to uphold the continued independence of the judiciary.”

The Secretary of State for Constitutional Affairs and Lord Chancellor replied:

“My Lords, a strong, independent judiciary is essential to the rule of law, public safety and the protection of the individual. The Government are fully committed to the independence of the judiciary. It is my duty as Lord Chancellor to defend judicial independence and to ensure that all Ministers are aware of and comply with their obligations to uphold it.”—[Official Report, House of Lords, 12 June 2006; Vol. 683, c. 7.]

He said the same to the judges in his Mansion House speech.

What the Lord Chancellor has been saying has not been convincing for the judges. We need to do more, and I therefore return to my proposition that the principles need to be enshrined in a way that cannot be undermined, as they have been by the comments of the Prime Minister and others.

I congratulate the hon. Gentleman on securing this debate. I have followed his words with great interest.

There is clearly an issue about Ministers speaking out of turn, but there is also the strong public view that many of our judges at least appear not to be responding to the public opinion that criminals, and particularly career criminals, should be given exemplary sentences. How does the hon. Gentleman think that the judiciary could become more responsive to the public mood—and when he talks about the judiciary, does he include the magistracy? At local level there is concern that magistrates are not able to punish offenders as the public would like to see them punished.

The hon. Gentleman asked a pair of interlinked questions. First, how in touch are judges at all levels in reflecting the public mood? They are more in touch than ever, because of both their background and their exposure—they are a lot less protected than they used to be. That is particularly the case for people who were called magistrates and are now called district judges and sit in local magistrates courts. They see the whole family of life passing before them daily, and are probably as much exposed to what life is really like as almost anybody else in society, including politicians. District judges see people from all backgrounds and in all circumstances and hear their stories, true or false, when they appear in court.

Secondly, do judges have the power to do what they think needs to be done? They may not, and may feel that they are overly constrained by the law of the land. Before the summer, my hon. Friend the Member for Sheffield, Hallam (Mr. Clegg) and I introduced proposals reflecting our belief that sentences should do what they say. To take the unhappy and topical example of the pronouncement yesterday in relation to the death of Damilola Taylor, which took place in the borough shared by myself and the Minister of State, the sentence given will not in all probability be the sentence served by the two young men convicted. My hon. Friend and I believe that there would be greater credibility in the sentencing system if, when a judge gave a sentence of five years, that meant that five years would be served. A harsh consequence of that is that a life sentence cannot be regularly handed out if life is not meant. The reality is that there are only around 20 people actually serving life, and a sentence lasting the whole of someone’s natural life should be reserved for those few cases where the judges really mean it. However, I understand the point raised by the hon. Member for Kettering (Mr. Hollobone) and we are sympathetic to it.

Judges feel that they are acting within the constraints that we put on them. They are more constrained than ever before, and are subject to challenge in the criminal courts for being either excessively severe or too lenient. Therefore, there is no scope for parliamentarians, politicians and Ministers in particular having a go at them, because there are mechanisms available to be used when people are unhappy with a decision. A judge who consistently gets sentencing wrong can be removed. It is not impossible for a judge who regularly, as it were, misbehaves judicially to be dealt with. When I hear people such as the Lord Chief Justice, Lord Phillips of Worth Matravers, who is highly respected, and Mr. Justice Peter Smith and others regularly saying that there is considerable concern among the judiciary that they are not receiving the support that they want from the Government, I am worried, as we all should be.

In the past few days, when the Lord Chief Justice commented on the benefit of good community punishment, it was not just something that he woke up one morning and decided to say: he had first spent time under cover experiencing community punishment for himself, which is pretty hands-on experience. He commented on antisocial behaviour, not without thinking, but after collecting the opinions of many judges around the country. Judges are well seized of the issues. I read in the law supplement of The Times in June a worrying report that an increasing number of judges are troubled and feel that they may not be able to remain in their post if they continue to be subjected to such political attack. We need to be absolutely clear that we have a modern system of selecting and appointing judges, and that there is a more independent system of choosing the best people to be judges—more women and people from black and ethnic minorities and different walks of life, rather than just from the Bar or private schools. We have a better cohort of people who are representative of Britain, and they deserve our defence.

I hope that there will be a consensus that it is time we stood up for judges. They are not always the most popular people, but we should follow the great tradition of Blackstone, Lord Atkin, Lord Denning and Lord Hailsham, who have all argued over the years for the importance of judicial independence. I hope that there will be an encouraging response, not only from the Conservative Front Bench but from the Minister, and that the Government will look favourably on the idea that in the future we should enshrine the independence of the judiciary as a written part of our great constitution, so that the judges of Britain are not undermined in an unfair, ill-conceived and extremely unhelpful manner in the job that they do, applying the law as we decide it, but with the independence that comes from looking at each individual case and ensuring that it is decided on its merits by somebody who has seen it from beginning to end, not by politicians or journalists who may not have been in the court or know the history and are much less qualified to make a judgment.

I congratulate the hon. Member for North Southwark and Bermondsey (Simon Hughes) on securing this debate. It is an important subject, and he has outlined the ground well. Indeed—[Interruption.]

Order. There may have been some confusion. I expected that another Member might rise, and that did not happen, but there now appears to be some consternation. Does the hon. Gentleman wish to be called?

The custom is that the Liberal Front-Bench Spokesman is called first, then the official Opposition spokesman, and then the Minister, if no other Member rises.

On a point of order, Mr. Gale. I apologise: no discourtesy was intended and it was simply that neither of us rose in the correct manner.

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 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.

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:

“The power of the Executive to cast a man into prison without formulating any charge known to the law…is in the highest degree odious”.

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:

“I take no credit for stumbling from the cigarette packet to the solution.”

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 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.

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.

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 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.

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.

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:

“Under current guidelines, offenders are eligible for parole after serving half their sentence. But they also get a discount of up to one third on this figure if they pleaded guilty early in legal proceedings.”

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

“is getting five years when he should get 30 we have a big problem—particularly with the presentation.”

He is writing about the Sweeney case. He continues:

“Personally, I have always thought if you sentence someone to 15 years they should do 15 years—regardless of how well they behave in prison. And if they do not behave themselves inside they should spend some more time there.”

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.

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.

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 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.

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 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.

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.

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.

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.

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:

“I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God.”

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.

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.

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”.

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.”

Throughout my time in the House, I have never had any reason to doubt that the right hon. and learned Lady or her colleagues as Law Officers in the Labour Government and past Conservative Governments have acted with anything other than absolute integrity and propriety in their function; as far as I am aware, they are beyond reproach. However, that is a different, although perfectly proper, issue from the one raised by the hon. Member for North-East Hertfordshire (Mr. Heald). When a criticism is made, even by the Home Office, it should be of the judgment and should invoke the opportunity of appeal; it should not be of the judges who give the judgment. It is always better to wait until the final judgment before coming to a final view. If the Government then think that the courts have got it wrong, they will know where the remedy lies.

We can all agree with the principles. The difficulty in particular individual circumstances is knowing where to draw the dividing line between speaking out in a perfectly acceptable way on a matter of public interest—as democratic representatives are entitled to—and behaving in a way that is oppressive and which threatens the independence of the judiciary. We must keep an eye on that dividing line all the time, and I welcome the fact that this debate has been called so that we can focus on that issue once again.

The Constitutional Reform Act not only enshrined the independence of the judiciary in law, but put in writing for the first time the fact that

“The Lord Chancellor must have regard to…the need to defend that independence”.

That is the first time that has been put into law as a statutory obligation. The Act also states:

“The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access”.

As the hon. Member for North-East Hertfordshire said, we have disentangled the situation. Previously, however the system worked in practice, the idea that somebody in the Cabinet—a member of the Executive—would also sit as a judge was subject to misunderstandings. So, too, was the idea that the highest appeal court was part of the legislature in the other place and that our judges, who were obviously supposed to be independent, were appointed by someone who was a political appointee and a member of the Cabinet. The Act set up the Judicial Appointments Commission and a transparent process that operates according to proper criteria so that we know that judges are chosen on an objective basis. All that makes things much more transparent and pre-empts any possible criticism.

The hon. Members for Kettering (Mr. Hollobone) and for Sheffield, Hallam mentioned sentencing and magistrates, and we must recognise that we are talking not only about the criminal courts, the Crown court and the Court of Appeal, but about the family courts—the fact that they should be well respected, have public confidence and be accountable to the public interest—and about proceedings in the civil courts, whether or not the Government are party to them. In respect of the criminal courts, we are talking, as the hon. Member for Kettering said, not only about the Crown courts, but about the important work of magistrates, whose impact most people see and feel in their local communities.

Hon. Members have talked about non-custodial sentences, and that is a legitimate subject for debate. Discussing the balance between custodial and non-custodial sentencing should not be seen as putting pressure on the independence of the judiciary—that is a public policy debate. The Government need to do more to build confidence in non-custodial penalties. If the court imposes a fine but the offender never pays it and that is the last they hear of the matter, the public will want prison sentences; they will think that that person will get off scot-free unless they get a prison sentence. If they think that unpaid work is ordered but not done, or is done half-heartedly half the time, they will think that the person will get off scot-free unless they get a prison sentence.

One issue that we are exploring as part of our community justice project in the Department for Constitutional Affairs, therefore, is whether the local magistrates in the 10 pilot areas that we will develop should advertise to the local community in the local newspapers. Should they ask, “Have you got some unpaid work that your voluntary organisation or your tenants group would like done? Is there a tenants’ hall that you would like to have repainted? Is there a bit of land on your housing estate that you would like to have cleared and goal posts put up on?”? The court would advertise and say, “You give us information about unpaid work that you would like to be done in the community”, and after that work is done, it would be badged. For example we might say that “Camberwell magistrates court has through sentencing in the community renovated this facility.”

People have had reason not to have confidence in non-custodial sentences, because there has been a lack of enforcement, to which we are now turning our attention forcefully. The more people have confidence in non-custodial sentences, the more they will think that perhaps it is better that instead of someone sitting in a prison cell they get out there and do something useful for the local community. Above all, it is that community that would have suffered from the offence.

We must also recognise that one of the things that sustains a community’s confidence in judges, and which will therefore sustain judges’ and magistrates’ confidence in themselves, is not only having a proper appointments system, but having some community involvement with it.

I formally invite any hon. Members who have not visited the Liverpool community justice centre to go there. I was most struck when I spoke to one of the community representatives who was at the formal opening of the court—of course, it had been operating for some time previously. She was like the type of tenants association rep that the hon. Member for North Southwark and Bermondsey and I know well in our area, and I asked her what she thought of the judge. She said, “Well, he’d better be bloody good, hadn’t he, because we appointed him.” Her point was that she had had an input into his selection and some sense of ownership. That sense of ownership was not over individual decisions—of course not, because she knows that he has to sit on the bench and make the decisions—but was a sense that he was connected to the community.

The hon. Gentleman will know that the police commander in Southwark used to be faceless and nameless when we first became Members of Parliament, but now our police officers are well known; they attend the Southwark police consultative group and all the local community movers and shakers know who they are. There is a process of building confidence in the judiciary, particularly locally, by letting people know who they are. Independent decisions can still be made but such people can be rooted in the community and accountable to it. Someone does not preserve their independence by removing themselves from the community, because that simply undermines public confidence, which causes a public critique of the judiciary, which in turn becomes a self-fulfilling prophecy.

I have been to the North Liverpool community court and was very impressed with Judge Fletcher. An interesting experiment is going on there, but that is just one area of the country. We are also talking about small numbers with the Minister’s 12 courts scheme and with the one good police example from Southwark. Are the Government thinking nationally in respect of any of this? Is the North Liverpool centre the way forward? When will we know the answer? It has been mentioned in the Department’s reports for ages and has been going for more than a year, so are there plans to roll it out nationally? If not, why not?

The important thing is to learn from the experience of pilot schemes. The hon. Gentleman would be the first to criticise us if we were to sit in Selborne house, think up a terrific idea and then impose it on the country far and wide. We have set up an experimental system in Liverpool and we are learning the lessons from it. As well as having the Salford community justice court, we are expanding to having 10 more. We will try yet further ways of doing things so that other magistrates courts can then learn lessons, not from what we have thought up on the seventh floor of Selborne house but from what other justices working in the community have done.

We are thinking nationally, but we want to build on the experience of people who are actually involved. We want to have the ideas, discuss the problems and come forward with the proposals, but we want people to try them out and to see how they work in practice. The Liverpool justice centre has been going for a little more than a year—I think that it is having its formal anniversary this Friday. It will be evaluated and we are learning lessons from it all the time.

All these innovative ideas are very welcome. The Minister knows that the Department’s lateral thinking about how to engage with the public is welcome. I want to put to her something that I believe I have put to her formally or informally before. In a borough such as ours, a huge way of engaging the public in the process without compromising judicial independence would be if the local authority leader, the borough police commander, the senior judge and the head of the Crown Prosecution Service for our borough were able to come before the public twice a year and be collectively accountable. It is often not the police that they are concerned about but the sentences of the judges or the decisions of the CPS. If they were accountable, the public could be engaged in that process too.

The hon. Gentleman is right. One of the things that the judge in Liverpool does is go to a community reference group, which is comprised of a group of local representatives. One of the things that we will be trying in the further 10 community justice pilots is to assess whether instead of creating a separate community reference group, the existing organisational partnerships can simply include the magistrates or the district judge. In our situation, the Southwark police consultative group would be involved, as they are the people who are concerned about law and order in the borough and are already configured there. It should be perfectly possible for the bench to go along to hear the sorts of things that are being said. People well recognise that we cannot wave a magic wand and solve all problems. If people are prepared to listen to such bodies, they will give credit for at least understanding, knowing and trying to do what they can. The difficulty is that if people are told that decisions are being made in their interests and in the interests of justice, but they do not know who by and they do not believe that such people understand the problems that exist in local communities—

I endorse the suggestion made by the hon. Member for North Southwark and Bermondsey (Simon Hughes). May I make a plea about persistent and prolific offenders? Such people are recognised by the Home Office and the police have targets to arrest them. I understand that when they are brought before the courts on the judicial side of things there is no separate category of persistent and prolific offender and that they are not being dealt with in the way that the Government with their approach to joined-up government had originally intended. If we intend to get all the different parts of the criminal justice system together and make them accountable to the public, may I draw this to the Minister’s attention?

The hon. Gentleman raises an important point. There are problems. The Prime Minister has made the point on a number of occasions that there could be a situation where what appears on its own to be a relatively small offence is taking place, but if a load of people are doing the same thing in a particular area, and if someone does it over and over again, the very sight of them in the local area can make people feel intimidated. One of the things that we are looking to try out in the community justice centres is a community impact statement. There is a victim’s impact statement, whereby if, for example, an elderly woman is mugged she can write down the fact that she felt afraid to go out afterwards. There is sometimes a need for a description of that sort of offence in relation to the particular community to assist the court in understanding the effect on the community.

We have had something analogous to that in the way that we have dealt with unduly lenient sentences. For example, in the first case of human trafficking the charges were rape and other individual offences. When it was referred to the Court of Appeal we explained that it was a new phenomenon—girls were being abducted in large numbers, hundreds of millions of pounds were involved and it was very much part of organised crime—and that we needed to send a message to traffickers that they would be dealt with severely when they were caught. That was a sort of national impact statement about a particular sort of offending. We are thinking about how to draw up a community statement so that the community knows that although something might look like one incident of taking and driving away or of graffiti, the impact on the community, which may be vulnerable and not resilient, needs to be brought to magistrates’ attention.

We have sought to put in statute by way of statutory duties the importance of the judiciary’s independence and we have sought to clarify that by disentangling the judiciary from the legislature and the Executive, which was not the case in the role of the Lord Chancellor and the House of Lords Judicial Committee. We have also sought to find ways of building confidence in the judiciary at local level with more community engagement. The process is to write all that down in a big Bill of Rights or a written constitution, as the hon. Member for North Southwark and Bermondsey said, with the Human Rights Act 1998, the Freedom of Information Act 2000, the Constitutional Reform Act 2005 and the different constitutional settlements in Scotland, Wales and London. In the olden days people might have taken it for granted that they understood all those things or did not need to understand them and we need to think about how to ensure that people understand the new constitutional settlement and how it fits together. I do not want it to be frozen in time and no one wants power to shift away from the elected part of the constitution to the non-elected part, but the question of how to bring it together and write it down as part of a process so that people understand the totality and can engage in the debate about whether there is yet more to do is a legitimate debate. I appreciate that it is taking place throughout the House. It is an important and constructive debate and I thank the hon. Gentleman for contributing to it.

Sitting suspended.