Nick responds to the Queen's Speech on Home Affairs and Justice, November 2007

Nick Herbert (Arundel and South Downs) (Con):

I am sorry that the Lord High Chancellor has not returned to his place, because I wanted to welcome him to the Chamber in his plain clothes. We all enjoyed seeing him in the full garments of his position yesterday, but I wonder whether he noticed the comments made on television by his predecessor, Lord Falconer, who observed that he was not wearing a wig. He said that that was like wearing pyjamas with no top. I hesitate to say any more on this matter, because I know that Mr. Speaker has also elected not to wear a wig on many such occasions.

The Government must surely be worried that the former Lord Chancellor is growing to be an increasingly effective media commentator. Indeed, some of us might observe that he has become a loose cannon thundering around on the Government's deck. I suggest to the Lord High Chancellor and the Prime Minister that it might be a good idea to have a further conversation about the former Lord Chancellor's pension if he is to be shut up, and made to stop giving advice about the Government's lack of vision-much of it no doubt unwelcome to them.

There is much that we can welcome in the Gracious Speech. However, it was striking that the Lord High Chancellor dwelled so little on the Government's proposals and focused so much on ours. That is the mark of the current Government. He chose to focus first on our original proposal, which the Government have adopted, to introduce a British Bill of Rights. It was difficult for Conservative Members to understand his exact point when he criticised us for proposing something that the Government now wish to introduce. Indeed, when he wrote about the issue recently in The Daily Telegraph, he simultaneously called for a debate and accused anyone who questioned the impact of the Human Rights Act 1998 of regressing into narrow xenophobia.

Surely those remarks should be directed at some of the right hon. Gentleman's colleagues. The previous Prime Minister, Tony Blair, when dealing with the specific issue that the Lord Chancellor claimed that we had got wrong-the margin of appreciation-said that he wanted to tackle

"the issue of court rulings which overrule the government in a way that is inconsistent with other EU countries' interpretation of the European Convention on Human Rights."

Similarly, the former Home Secretary, the right hon. Member for Airdrie and Shotts (John Reid) said of the Act:

"Too often we are fighting crime and terrorism with one hand behind our back."

In the summer, the Lord Chancellor told me at the Dispatch Box that there was no difference between him and the right hon. Member for Airdrie and Shotts on the Human Rights Act. Apparently, there is. However, we will continue to lead the debate on the proper balance in relation to human rights. We will make the sensible case for a new legal framework, which balances rights and responsibilities and safeguards liberties while trying to fight serious crime.

Mr. William Cash (Stone) (Con):

Did my hon. Friend notice that the Lord Chancellor referred today to the British judiciary? Does he agree that there are circumstances in which it is imperative that our judges are required to follow United Kingdom law made in the Westminster Parliament and not law derived exclusively from the European convention or, indeed, European law generally?

Nick Herbert:

My hon. Friend and I have debated the matter previously and our position is that we want British judges to apply the law with regard to the values that we propose to set out in a British Bill of Rights and responsibilities. We do not propose to resile from the European convention but we believe that our judges would have more latitude if that British Bill of Rights were in place. The Government, too, apparently believe that now. Perhaps they can explain the exact difference between their position and ours, given that they appear to have adopted our policy to introduce a British Bill of Rights. We have yet to see of what it will consist. Until we do that, it is difficult to judge the merits of the Government's proposals.

Similarly, the Lord Chancellor dwelled on proposals that formed no part of the Queen's Speech. They are our proposals to tackle the imbalance in the constitutional settlement that the Government introduced in the form of Scottish and Welsh devolution. Perhaps unsurprisingly, the right hon. Gentleman seemed preoccupied by that and fiercely criticised our proposals for English votes for English laws.

I have two points to make in return. First, the Lord Chancellor should take care when citing Gladstone. Gladstone's answer to the problem was to reduce the representation of Irish Members of Parliament. If the right hon. Gentleman prays Gladstone in aid, perhaps he will state whether his answer is similar. Secondly, we have heard his objections to our policy on the English question of giving Members of Parliament representing English constituencies the decisive say on English laws, so I have a simple question for him: what is the Government's answer to the problem? It cannot be acceptable simply to take the advice of the former Lord Chancellor, Lord Irvine of Lairg, and not ask the West Lothian question in the first place, which seems to have been their position so far.

In the 1990s, the right hon. Gentleman and his colleagues realised, just as we came to realise, that the threat posed to the Union, which he spoke so much about, came from English Members of Parliament imposing unpopular laws on Scotland. He should understand that the threat to the Union today does not come from giving English Members of Parliament the decisive say on English laws. That threat comes from Scottish Members of Parliament having the decisive say on English laws. That is the imbalance that has already arisen and which was created by the Government's devolutionary settlement. It is no good for the Lord Chancellor simply to criticise our proposal. He must come forward and say how he proposes to address that imbalance, which has weakened the Union. Our position is that we wish to see the Union strengthened, and it can be strengthened only by giving English Members of Parliament the decisive say on English laws.

So fixated was the Lord Chancellor on our proposals that he talked very little about the Government's own. The Criminal Justice and Immigration Bill-one of the Bills that have been carried over into this Session-barely received a mention. However, hon. Members in all parts of the House were critical of what has been described as the Government's legislative incontinence-other words were used, too-in constantly resorting to more legislation and laws, in the belief that that is the way to address the problem of crime in this country. The hon. and learned Member for Medway (Mr. Marshall-Andrews) criticised the Government's drive for more legislation, while my hon. Friend the Member for Mid-Worcestershire (Peter Luff) said that they were addicted to legislation. He offered some good advice, which is that they should concentrate on doing less better.

If there is one indication of the failure of the Government's approach in that regard, it is that although the Gracious Speech talked about the aim of reducing reoffending and even suggested it as the purpose for introducing the Criminal Justice and Immigration Bill, the fact is that reconviction rates have soared. Reoffending rates have soared, despite a succession of criminal justice Bills. The Government have signally failed to deal with the problem of reoffending. Indeed, I shall argue that there is no way we can deal with reoffending unless we deal with the problem-the crisis, indeed-of overcrowding in prisons.

The second major Bill forming part of the Gracious Speech is the draft constitutional renewal Bill, which contains the Prime Minister's big idea. The Gracious Speech promised proposals to

"renew the constitutional settlement and strengthen the relationship between the Government, Parliament and the people."

Fine words and grand aims indeed, but let us examine the proposed components of the Bill. We agree about giving Parliament the power to make treaties or approve going to war, abolishing the royal prerogative in that regard. Indeed, our democracy taskforce, chaired by my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), proposed those very measures. We welcome legislation to underpin the independence of the civil service, whose independence has so often been compromised under the Government's stewardship in the past 10 years. We welcome that legislation, because it is three years since the Government published the draft Civil Service Bill and seven years since they said that they were committed to such legislation. If we are at last to see it, that will be welcome.

We welcome the review of the restrictions on protests in Parliament square. We all agree that a better balance is needed in that respect. Hon. Members on both sides of the House have expressed concern about the noisy, static and semi-permanent demonstrations that interfere with people who are seeking to work in and around the House. There are, however, legitimate concerns about the unwarranted restrictions on liberty that were imposed by the Serious Organised Crime and Police Act 2005, and by the order that brought in the tight restrictions on demonstrations in Parliament square.

In that context, I have one question for the Home Secretary: will she clarify the proposal in the consultation paper for the "harmonisation" of the laws governing the right to demonstrate in the designated area around Parliament square and those relating to demonstrations elsewhere? I imagine that the objection that has prompted the Government to review the provision relates to its impact on civil liberties and, in particular, to the fact that the public have to seek the permission of the police to demonstrate. Without that permission, even the most peaceful demonstration will fall foul of the criminal law. I am sure that that is the objection that the Government are seeking to address. However, if the effect of their proposals were, through harmonisation, to extend the provision to demonstrations outside the purview of Parliament square and its environs under the terms of the Serious Organised Crime and Police Act, that would be a step in the wrong direction that would lead to serious deprivation of civil liberty. I would be grateful if the Home Secretary clarified what "harmonisation" means in that context.

We welcome the proposals for pre-appointment hearings by Select Committees, although they do not go far enough to strengthen the legislature against the Executive, which is one of the declared aims of the constitutional reforms. The House must be given control over its own timetable, and the power of the Whips over Select Committees-with their enhanced role, as described by my hon. Friend the Member for Mid-Worcestershire-must be reduced.

None of those measures is in itself objectionable. Many of them do not go far enough, but all of them miss the point. Indeed, the fact that the Lord Chancellor dwelled on many of our proposals suggests an implicit concession that the Government have spectacularly missed the point. Nothing has been proposed to address the constitutional imbalance created within the United Kingdom. There is very little in the Queen's Speech about House of Lords reform, in spite of the Lord Chancellor's intentions, although I accept and respect the fact that that matter is now effectively on ice until the next election. Of course, there is nothing on the constitutional outrage of a referendum being promised on the EU constitutional treaty but not delivered.

Trust will be rebuilt between the people and this place and between the people and the Government not through the measures that the Government have proposed in their legislative package, worthy though they are. It will be rebuilt only when the power that has been taken away from individuals and communities is genuinely returned to them. That will not happen under these proposals. We are fond of quoting Polly Toynbee, who said of the Government's constitutional renewal Bill that it was a

"grand name for good but uncontentious tidying up".

Surely that is an accurate summary of the constitutional renewal proposals.

We have before us a Criminal Justice and Immigration Bill that we have already started to debate, which does not actually say much about immigration. We are to have a citizenship and immigration Bill. The Government seem to believe that if they mention immigration in the titles of their Bills enough times people might think that they are doing something about it. Let us take a closer look, however; it is extremely difficult to work out what will form such legislation.

The briefing about the citizenship and immigration Bill accompanying the Queen's Speech, in which the commitment was given to produce such a Bill, consists of just one sentence:

"The purpose of the Bill is to take forward any recommendations emerging from the Goldsmith review of citizenship requiring primary legislation."

If we go to the Goldsmith review on citizenship, we find one small page on a website, telling us that citizenship is "an important common bond"-a profound observation, no doubt. Lord Goldsmith goes on to tell us that he needs the public's views in order to carry out this work and that the review "will report to the Prime Minister in March 2008".

We therefore know nothing about what will be in the citizenship Bill, so it is very difficult to debate its proposals sensibly.

Similarly, we know nothing about what will be in an associated part of the Government's constitutional reform agenda-the statement of British values. We are all waiting with bated breath to see what will be in this statement of British values and what it will add to our British way of life. Perhaps it will be the Prime Minister's newest and most notorious phrase, "British jobs for British workers".

Will that be enshrined in the statement of values that the Government will propose? As the right hon. Member for Leicester, East (Keith Vaz) said last night:

"It lacks credible arguments, and some have suggested that it appears to amount to little more than employment apartheid."-[ Official Report, 6 November 2007; Vol. 467, c. 124.]

Conservative Members are highly sceptical of the Government's attempt to describe a statement of values, but until we have seen it, how can we possibly judge the worth of that aspect of the constitutional renewal package? If, as we saw yesterday, the Government are clueless about their vision, how can they credibly set out a vision for the whole country? As the Labour-supporting historian, Tristan Hunt said:

"Rather than wasting time on a statement of inevitably vacuous values, ministers should focus on bedding down the reforms they have introduced... Given that the government is having enough trouble setting out its own vision, it really doesn't need to take on the country's as well."

Thus we have a citizenship Bill, a citizenship review and a statement of values, but at least we have them, even if we have absolutely no idea what will be in them. That is better than the position on the coroners Bill, which is missing altogether from the Government's legislative programme. As several of my hon. Friends have observed, it was in the Government's draft legislative programme and it deals with an important issue. The Government promised the House a Bill on that subject four years ago and we are still waiting for it.

Here is a summary of the Government's Queen's Speech proposals so far: we have a coroners Bill that is dead on arrival; we have a Criminal Justice and Immigration Bill whose clauses are dying by the day as the Government are removing them, even though the Bill has barely been published; and we have a citizenship Bill that is with us only in spirit. Is it not clear that this is a Government with the life drained out? They are bereft of new ideas and making policy on the hoof. The single thing that characterises this Government is surely their incompetence.

The Lord Chancellor barely touched on the issue of prisons. So busy was he attacking our constitutional proposals that it no doubt suited him to gloss quickly over the present situation in our prisons. There is surely no greater index of the Government's incompetence than their management of the prison system. They have systematically ignored successive warnings about overcrowding, failed to provide sufficient prison capacity, and presided over appalling overcrowding in our prisons-a quarter of them now have cells that are doubled or trebled up. That shows the level of overcrowding, which is impacting on the prison system's ability to rehabilitate prisoners and deal with them properly.

What is the Government's answer to the problem? It is not to provide short-term emergency capacity-certainly not: we have heard nothing about that. Their answer, which was instituted just as the Lord Chancellor took office with the Prime Minister alongside him, was the early release of offenders. About 8,500 offenders have now been released early as a consequence of that scheme, often before even the halfway point of their sentence.

Of those, 1,500 have been violent offenders, and 120 crimes have been committed by offenders who should have been safely behind bars. What does that say about the Prime Minister's claim that he wished to punish criminals? What does the Home Secretary have to say about the fact that 292 prisoners have been released from three prisons adjacent to her constituency in Redditch-more than in any other town in England and Wales apart from Doncaster?

Prisons are full to bursting point, and the Government should now tell us what they are going to do about that. Instead, we see precisely the wrong approach from them. Rather than providing sufficient capacity, they seek to fetter judicial discretion and prevent the judiciary from sending people to prison. The Criminal Justice and Immigration Bill would remove the ability of magistrates to suspend sentences. The Prisons Minister has suggested that he will consider giving guidance to the judiciary to reduce the use of custodial sentences.

We have a straightforward position: sentences should fit the crime, not prison capacity. It is up to the Government to ensure sufficient prison capacity to enable the judiciary to hand down sentences in accordance with the crimes presented to them. It is telling that judges are increasingly speaking out about the way in which their hands are tied in that respect. Newspapers reported this week that a frustrated judge, Timothy Mort, complained that he felt forced to hand down a suspended sentence and let an offender go due to the growing overcrowding in Britain's prisons. He said to the defendant:

"In the current climate, when the prisons are full, I will have to suspend your sentence-

an option that will be taken away from him in any case under the Government's proposals.

Perhaps the worst aspect of the Government's early release scheme, which will see 25,000 offenders released in a full year, has been that at least 500 of the offenders released so far have been foreign national prisoners. So much for the Government's pledge to remove those foreign national prisoners back to their country of origin. Not only have the Government failed to do that but they have released them early. How will the Government rebuild trust in politics if they make such pledges and then renege on them in such a grotesque manner?

Another issue on which the Lord Chancellor did not say as much as we expected was that of party funding. The Government have said that they are committed to a fair and transparent system of political party funding that does not disadvantage any party. How can they say that with a straight face? We regret the collapse of the cross-party talks on funding, but let us be clear about the cause of that collapse: the cause is the fact that the Labour party cannot kick its dependency on trade union funding. We support a comprehensive cap on donations, to apply to individuals, companies and trade unions. The Labour party, however, is unwilling to give up the £8 million of affiliation fees.

The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw):

I am glad that the hon. Gentleman was smirking as he said that-he obviously did not believe a word that he said. As the record will show, Sir Hayden Phillips put forward a proposal, which was a negotiating position, that reflected accurately the position at which the three parties had arrived before that meeting-the hon. Member for Somerton and Frome (Mr. Heath) has attended every meeting, as have I, and the hon. Member for Arundel and South Downs (Nick Herbert) has not attended a single one. The record will also show that it was a very late decision by the Conservative party leader to back away from a position on which we were very close to agreement that led to the talks being scuppered. The Conservative party was to blame, entirely and exclusively, for the collapse of those talks.

Nick Herbert:

That sounds rather similar to the justification that the Prime Minister offered for failing to go to the country, having marched his troops to the top of the hill. It is totally unbelievable. Everyone knows that the reason why agreement is not possible is that the Labour party will not give up its trade union affiliation fees.

Mr. David Heath (Somerton and Frome) (LD):

I am sorry to disappoint the hon. Gentleman. I would love to agree with him that this was similar to the disgraceful retreat from a general election, but in fact the Lord Chancellor was absolutely right in his description of the process that led to the breakdown of the talks, which was caused by the Conservatives walking away.

Nick Herbert:

We cannot agree to a cap on donations which is not a comprehensive cap on donations. What the Government are seeking-not in the interests of the country but out of partisan self-interest, to coin a phrase-is an unequal cap that would not apply to £8 million worth of trade union affiliation fees. That is what they could not agree to, and that is what meant that the talks could not continue.

We are presented with the specious argument that affiliation fees should somehow not count as donations that should be capped, but everyone knows that control of those fees is in the hands of the union barons, not those of individuals. Everyone knows that in many unions, individual members must opt out rather than in. Everyone knows that union members have no real choice in where the funds are deployed, and everyone knows that in the general election of 2005 a majority of trade unionists voted for parties other than Labour. So how can the Labour party justify the single direction of those funds towards itself?

Mr. Straw:

The hon. Gentleman may not understand that the current arrangements that we are all operating were amended on at least three occasions by the Conservatives, who told the Neill committee in 1998 that they had no further changes to make to arrangements that they regarded as entirely satisfactory.

If it is true that, as the hon. Gentleman claims, individual trade union members do not know about opting out, why have at least 20 per cent. of members of most large unions chosen to opt out-entirely voluntarily?

Nick Herbert:

The Government have introduced changes requiring annual approval in relation to companies, but they always seek special arrangements in relation to the trade unions. What we are talking about is the unequal application of a cap.

The country will understand perfectly well that the Government's position in this respect is totally untenable. A donation from a trade unionist is an individual donation, but a block donation from a trade union is not. The affiliation fees amount to a closed shop. They should be brought within the ambit of overall spending controls. If they are, agreement between the parties will be possible, but until the Labour party is willing to give up its addiction to trade union funding, it will not be possible to reach such an agreement.

Mr. Peter Luff (Mid Worcestershire) (Con):

Surely the position is even worse than that. Is it not the case that the Government are paying money to trade unions in the form of the modernisation fund, which is then recycled back to the Labour party? That is the real scandal.

Nick Herbert:

I agree with my hon. Friend.

We will relish the opportunity to talk about this issue every day until the Government realise that it is doing them a great deal more damage than good in the eyes of the country to have effectively prevented any agreement on the control of party funding. Such controls must apply equally. We have all seen the way in which a communications allowance voted through by the Government, allowing an extra £10,000 worth of public spending, has been used by Labour Members for party-political purposes, for which they have had to apologise. I have with me a leaflet that was distributed by the Secretary of State for Transport; a Cabinet member, she has had to apologise for what was said in it. Public funds have been used to distribute a leaflet to her constituents in which she talks about the Labour Government investing

"so much in improving early years' services" and "Labour's commitment to investing in and modernising"-

Madam Deputy Speaker (Sylvia Heal):

Order. I wonder whether the hon. Gentleman has given notice to the Member concerned that he intended to quote from that leaflet. It is the practice, and a courtesy of this House, to do so.

Nick Herbert:

I apologise to the Secretary of State for not having given notice, but that is as nothing compared with the offence committed by Labour party members in abusing the communications allowance in this way. They seek the continuance of trade union funding exempt from the controls that they believe should apply to individuals and companies, and the continuance of Government funding, which they have sought to abuse in distributing party political propaganda to their constituencies. We are happy to talk about this matter day after day, until the Government realise that they must approach such matters with the interests of the country at heart, rather than their own narrow partisan interests.

Shona McIsaac (Cleethorpes) (Lab):

On a point of order, Madam Deputy Speaker. Is it in order for the hon. Gentleman to persist in going on about the use of public funds without admitting that his party has received £35 million from the taxpayer?

Madam Deputy Speaker:

That is not a point of order for the Chair.

Nick Herbert:

We do not believe that there should be a single extra penny of state funding for political parties until proper controls for all donors, including the trade unions, can be observed, because we have the interests of the taxpayer and the public at heart. We know what Members on the Government Benches have at heart: the interests of their party. That was made clear from a Press Association report of 14 December 2006 which contained the following quote:

"The Labour Party cannot accept a statutory uniform donation cap...It would also undermine the Labour Party federal structure".

That is no reason not to accept a cap. We should not be considering the interests of party in this matter; we should be considering the interests of the public.

Restrictions on campaign contributions of the kind proposed by the Government are internationally unique; in no other country would similar restrictions be introduced. Not even in staunchly social democratic Sweden are the unions given such exemptions. This is a blatant attempt to gerrymander campaign finance; it is done for electoral gain and it will not wash.

Finally, I turn to terrorism and the contributions on it in the debate. While we have been debating the matter-with Members in all parts of the House expressing reservations about aspects of the Government's proposals-the London assembly has passed a motion of no confidence in the Metropolitan Police Commissioner. The Home Secretary now has an opportunity to reconsider her view on the matter. The commissioner's position has become wholly untenable. Although we can talk as much as we like about measures to deal with the terrorist threat facing the country, there will be no confidence among Londoners or his staff while he remains in place. The Home Secretary has made a grave misjudgement in continuing to back him. She should now have regard to what the London assembly has said, and review her position on the matter.

My right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard), among others, raised the issue of intercept evidence. I point out to the Home Secretary that I dealt with the Serious Crime Bill in Committee, and that a provision to allow the use of intercept evidence in trials-inserted in that Bill in the other place as a result of an amendment moved by Lord Lloyd-was removed by the Government on the basis that this matter could be considered by the Joint Committee. We argued at the time that a close and genuine look had to be taken at the use of intercept evidence, and we hope that that remains the case. It is clear, as my right hon. and learned Friend and others said, that intercept evidence is used in international practice in dealing not just with counter-terrorism, but with serious crime such as gangland crime. It remains extraordinary and anomalous that we in this country take a purist view and do not allow the use of such evidence.

However, the issue that really preoccupied the House today was detention without trial. We look forward to hearing the Home Secretary's answer to the powerful case made by my right hon. Friend the shadow Home Secretary against the Government's proposal. She will have a very hard job answering objections that were raised in all parts of the House to the Government's apparent proposal to extend the period of detention. They must demonstrate that they are acting in the interests of the country in putting it forward, and they must set out far more convincingly than they have so far done the case for extension beyond 28 days. The absence of that case was exposed well today in all parts of the House.

Here, there is an irony. On the one hand, this Queen's Speech sets out proposals that will considerably increase the time that people can spend in custody without being charged-effectively, a form of internment. Simultaneously, it sets out measures that seek to reduce the prison population. The Government are seeking to let people who have been convicted of serious crimes out of prison before the end of their sentence not just for ideological reasons, but because they have failed to provide sufficient prison capacity. That is indeed a rich irony, and I contend that this is an uncomfortable position for any Government to be in, but a particularly uncomfortable one for a Government led by a Prime Minister who lectured us just two weeks ago about the importance of liberty.

This Government have demonstrated in every other respect that they do not have the interests of the victims of crime at heart. We have seen the end of custody licence and the early release of criminals, 18 days before the end of their sentence. We have had automatic release after half a sentence has been served, and the restriction of the use of open-ended sentences. I understand that the Home Secretary objects to that, but that the Lord Chancellor has proposed that those sentences be restricted. Perhaps the Home Secretary could set out her position on indeterminate sentences for public protection. There was also the extension of summary justice-taking cases out of the courts and putting administrative justice in the hands of police officers. Moreover, more than 1,000 serious offences have been committed by tagged criminals. Cars have been given to prisoners in open conditions, including 33 murderers. Magistrates have been stripped of their sentencing powers.

The story of this new Government is that they are introducing measure after measure that is softening their stance on crime, and they are doing so for one reason: their incompetence in failing to provide adequate prison capacity. Recidivism rates have been driven up, and re-offending has increased by 10 per cent. The costs of crime have grown enormously and it is time for a fundamental change of approach. Regrettably, we will not get it from this Queen's Speech or in the next two years.