Criminal Procedural Rights (Opt-in Decision)

Jacob Rees-Mogg Excerpts

Tuesday 18th March 2014 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Chris Grayling)]

I beg to move,

That this House takes note of European Union Documents No. 17621/13 and Addenda 1 to 3, a draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, No. 17633/13 and Addenda 1 to 3, a draft Directive on procedural safeguards for children suspected or accused in criminal proceedings, No. 17642/13, a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, and No. 17635/13 and Addenda 1 to 3, a draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European Arrest Warrant Proceedings; and agrees with the Government that the UK should not exercise the opt-in to these measures.

I am pleased that the European Scrutiny Committee has called this debate, as these potentially important matters are of interest to Parliament and the public. The three proposals to be considered today all flow from the Stockholm work programme agreed in 2010, and two of them flow directly from the criminal procedural rights road map agreed in 2009 and later confirmed in the Stockholm programme. We have been presented with three directives, which appeared at the same time and which share a common date of 19 March for a decision on whether the UK will opt in. The decisions are individual and specific to each proposal.

I can tell the House that we have considered each proposal carefully. In line with the coalition agreement, we have looked at the potential benefits and disadvantages of UK participation to the national interest on a case-by-case basis. We asked ourselves whether it is in our national interest to be bound by any or all of the proposals, and we have concluded that it is not. The motion is therefore clear that we are minded not to opt in to any of the proposals, and I of course look forward to hearing the views of the House this afternoon.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I congratulate my right hon. Friend on his absolutely right decision, but can he confirm that it is the intention of Her Majesty’s Government not to opt in at any stage?

[Chris Grayling]

I was going to make reference to that. I can confirm that we have agreed that we will not participate in the first and third item at any stage. We have agreed across the coalition that we will take a look at the second item in the discussions that take place. We will participate in the negotiations, but I say to the House this afternoon that I do not expect, at the end of that process, any change to the decision that we are proposing, which I hope the House will endorse this afternoon.

I have also given our officials permission to take part as observers in the negotiations on the other two measures, because, naturally, I am keen to ensure that our European partners take sensible steps, too. It is right and proper that we should be aware of what takes place, but I could not conceive of a situation where we could consider taking part in the presumption of innocence and the legal aid matters. Therefore, it is not our intention at any stage to participate.

I was glad to see that the European Scrutiny Committee has also concluded that the UK should not opt in to the proposals, so we are of one mind on them. It is also worth highlighting that we are considering these three measures alone today, and that the Government continue to engage with the Commission on wider 2014 measures. I will briefly discuss the possible pros and cons of each proposal, as it is important that the House understands the basis for our decisions and the proposal we are putting to it this afternoon. First, I wish to make a general point relevant to each of the proposals. Each of them would of course apply to all criminal cases in the UK. None is restricted to cross-border cases. That means that if we accept any of the proposals, we also effectively agree that, henceforth, the relevant matters of internal procedural law will be determined at an EU level rather than here. In addition, the highest court overseeing the implementation and interpretation of the rules would thereafter be the European Court of Justice and not any UK court. That is, of course, true of all EU laws, but it is important to bear that in mind as we consider the proposals.

I remind the House that the agreement we reached on the 2014 measures is that we do not believe that Britain should be part of a European justice system. We do not believe in the harmonisation of court and legal procedure, and our decisions reflect that view. I do not agree with those who wish to create such a unified system. Other member states are free to do so if they choose, but we have decided that this country should not be part of such an approach.

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[Jacob Rees-Mogg (North East Somerset) (Con)]

The hon. Member for Hammersmith (Mr Slaughter) quoted his speech in 2011, but it is his speech today that ought to go down in legend and song. Indeed, a sentence from it should be engraved in the deepest, finest granite and remembered by all of us who are interested in this debate, for he got absolutely to the heart of the subject when he said that the problem is trying to impose a system of Roman law on a common law system. That is at the heart of the difficulty of imposing anything from the justice area on the United Kingdom. I rejoice at his saying it, because I hope that it shows a change from his attitude in 2011, when he was quite keen on opting into things. I did not agree with the vision of his previous speech, but this one was of the greatest quality, nobility and thoughtfulness, and I hope that it receives the praise it deserves.

While in this mood of good will, I want to praise the wisdom of my right hon. Friend the Lord Chancellor. In opting out of the three important directives—and, indeed, from the directive on right of access to a lawyer—he has avoided falling into the European trap. A number of directives are coming through in the justice and home affairs area, particularly on the European arrest warrant, which we have opted into, and the trap is very serious. Once we have opted into one thing, the next step is to say that because it is possible for a British citizen to be arrested by a foreign court and taken out of this country to be tried in a foreign place, losing the rights that would normally belong to a British subject, we need to impose other safeguards, but to impose such safeguards we need common rules to ensure that treatment is the same and that we have a pan-European view on the presumption of innocence.

Such a view is needed because a British subject can be taken out of this country and taken abroad without any questioning in this country of whether their trial will be fair and proper. As that can be done under the European arrest warrant, we are led to say that it is only right and proper to have safeguards on the presumption of innocence. Exactly the same applies to the directive on procedural safeguards for children and, tying in with it, the right of access to a lawyer.

Once there is common acceptance of other nations’ legal systems, we begin to say that they will work only if we have common safeguards, and once we begin to accept common safeguards we are effectively implementing a single criminal law across the whole of Europe. Once that has been done, legal aid must of course be unified across the European Union, because the person arrested needs to be able to afford the defence to which they are entitled, in accordance with laws laid down by the centre.

This is not a matter of co-operating with European partners or of saying that there is a proper degree of justice in some European countries to which we are willing to extradite our citizens; it is a question of saying that we believe that ours is the only way to ensure proper justice in relation to some relatively undeveloped judicial systems. I am thinking of some countries that have joined the European Union more recently, particularly Croatia. In our debates about its application for membership of the European Union, we discussed the difficulties in its judiciary and police that were not solved before it joined. Despite the European Union’s requirement that they should be resolved, it was allowed to leave them to be improved after it joined. The same applies to Romania and Bulgaria. Once it has been accepted that such countries have the right to arrest British subjects, it inevitably follows that common standards of protection must be applied, with an overall court of appeal that can review it. Those are the stepping stones towards a single European criminal justice system.

I praise the Lord Chancellor because he is now, I hope, taking the stepping stones in the other direction. We have had the block opt-out. We have restored to the United Kingdom rights over justice and home affairs. Unfortunately, we have not settled on which items we wish to opt back into. When that list comes forward, it is crucial that the things that we opt back into are not used as an excuse for bringing back the measures before us. I am thinking in particular of the European arrest warrant. As soon as that is in, the presumption of innocence must be a pan-European right, because nobody in this House would like a British subject to be deported to a foreign country and not have the presumption of innocence in his favour. The same is true of the other two measures that we are countering.

I hope that in the battles that go on within Whitehall the Lord High Chancellor will know that he has the support not just of Conservative Members but of the bulk of the country in standing up for our common law system against, as the hon. Member for Hammersmith reminded us, a Roman law system that is not suitable for this nation.

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[Mr William Cash (Stone) (Con)]

I am extremely glad to be able to commend the Lord Chancellor and Secretary of State for Justice for his good decision on the directives. Inevitably, I am pleased that he has agreed with the European Scrutiny Committee. We spent a lot of time on the subject and gave our opinions, and I am glad that he has taken a similar view to ours. That has a consequence, of course, because although we hoped for a three-hour debate, there is no need for one when there is such a healthy degree of agreement between the parties, subject only to a few comments that we have just heard from the hon. Member for Swansea West (Geraint Davies).

[Jacob Rees-Mogg]

Is my hon. Friend struck by the fact that when the Conservative party is Eurosceptic, it is united?

[Mr Cash]

I am indeed. I must be careful in what I say, but I simply note that when the Lisbon treaty was going through the House, I tabled 150 or so amendments, and there was complete unanimity among me and my close friends of the Euro-realist type, who supported those amendments, and the Opposition as a whole. The Conservative party was completely united right the way through the proceedings, for the first time since 1972. My hon. Friend is completely right, and there is a strong lesson there.

Moving on to the substance of the matters in question, Lidington debates form part of a package of measures that were intended to

“significantly strengthen Parliament’s oversight of EU Justice and Home Affairs matters and make the Government more accountable for the decisions it makes in the EU.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]

That was what the Minister for Europe said in his written statement in January 2011, and it is important that we put it on the record. It is therefore disappointing—this is the only caveat to my otherwise considerable appreciation of what the Justice Secretary has done today—that, yet again, the Government were unable to give the Committee adequate notice of their recommended approach to the opt-in decision. That is a great pity, because we would not have needed to request a three-hour debate. There would not have been any need for it, subject to the agreement of the Opposition Front Benchers. I suggest that it would be helpful to understand what steps the Government intend to take to improve the process for holding Lidington debates and how they will ensure that their internal decision-making procedures do not continue to hamper the timely provision of information to Members of Parliament.

I also wish to make a point about explanatory memorandums. In the Committee’s initial report, we stated that we were not satisfied with the quality of the memorandums relating to all three proposals that we are discussing today. We have said that before, but I wished to put it on record again. That is a matter of concern to us in relation to not just the Ministry of Justice but Departments in general. The explanatory memorandum is the most important information that can be made available—I do not mean when compared with everything else, but it is important in its own right. It is therefore extremely important, as we say in our European Scrutiny Committee report—for which we are awaiting the Government’s response—that explanatory memorandums are of sufficiently high quality, because that is the basis on which we hold the Government to account. When they explain in a memorandum the policy that underlies their decision, that should be the basis on which we are able to address the House, and be sure that the Government are answering the questions that we have put and are coming up with a policy that is coherent and makes sense.

The first of the three draft directives under consideration is that on the presumption of innocence. Its scope, which sets out certain rights that could be interpreted more widely than similar rights in the European Court of Human Rights by the Strasbourg Court, is a matter of great concern, and I am extremely grateful for the remarks of the Chair of the Justice Committee on that issue. I am also glad that the Lord Chancellor has made it clear that at no stage will that measure be opted back into, and I will give one or two reasons by way of amplification.

To take up the point made by the Chair of the Justice Committee, there would otherwise be different European Union and European Court of Human Rights procedural standards, which could cause legal uncertainty and confusion. That has now become an extremely topical question when applied to the judiciary. Members may have noted that, in their varying ways and without going into the detail, Lord Judge, Lord Sumption, Lord Mance and Lord Neuberger, the President of the Supreme Court, have all made incredibly important statements, in the most measured terms, about their concerns over the manner in which the Strasbourg Court approaches some of its judgments. This is not the time to go into all the detail, but I strongly recommend that their respective speeches are read by those who read these proceedings.

It is very important that people understand our concerns as members of the Conservative party—and indeed of other parties. Furthermore, some of the arguments that are presented as if we are just Eurosceptics who are out to be critical for the sake of it, are now increasingly supported—however discreetly—by some of the most eminent members of the judiciary in our analysis, which has taken a great deal of time and expertise to develop. It is important to remember that our arguments about the directive on the presumption of innocence are illustrative of the broader question of the methods of interpretation, for example, and the procedural standards in the two different Courts I have mentioned.

On procedural standards, in a nutshell, those based on European Union law override national law. As I said in an intervention, that means that the ability to draw adverse inferences from the silence of the accused, although compliant with the European Court of Human Rights, would become unlawful under European law if the United Kingdom participated in the proposal. That is dangerous, given that we have spent the best part of 600 years in the development of a common law on such matters, some of which—for those who watched it—were well illustrated in last night’s programme on the Plantagenets and Henry II. It was an interesting programme, much of which dealt with how we developed our common law.

The fact is that our courts have a system of appeal. The trouble with EU law in matters as important as the presumption of innocence, which is absolutely at the heart of Magna Carta and absolutely at the heart of our common law system, is that they would be eviscerated if the European Court of Justice were to apply the principles set out in this directive. The consequences would be for section 3 of the European Communities Act 1972, passed all those years ago, to be binding on our judicial system, with no right of appeal once the European Court of Justice has adjudicated. That is different from the European Court of Human Rights, which we can override much more easily. I contend that we can put in a provision in an Act of Parliament to rectify that, by saying that, notwithstanding the European Communities Act, we will not accept this particular piece of legislation and thereby preserve our sovereignty. It is this kind of matter that is under discussion on the basis of the European Scrutiny Committee report, to which I referred earlier and on which we await the Government’s response. It is that important: there is no appeal from the European Court of Justice.

I spent two days in Rome last week discussing the question of fundamental rights with some extremely eminent lawyers from throughout the European Union. The Prime Minister of Italy was there, as were a range of other people: Mr Prodi, who used to be the President of the European Commission, people from the Council of Europe and from the European Union Agency for Fundamental Rights and so on. I have to say that there was a great deal of disquiet at the manner in which the European Court of Justice operates in all cases. There are questions about the qualifications of the judges, the methods of interpretation and the issue of process. I will not go into those in detail, other than to put it on the record that the reason why the Government are right, why the European Scrutiny Committee is right and why it is right for this House to agree not to opt into these arrangements, is not just related to the question of the presumption of innocence in its own right, as important as that is. There is a much broader lesson to be learned on the manner in which the European Court functions and the whole question of the supremacy of Parliament. That lies at the heart of the Committee’s report and its recommendations that, if necessary, we should regain the right to veto legislation that we do not think is in the national interest, and to repeal unilaterally at Westminster legislation that is manifestly not in our national interest.

I will now move on to the directive on procedural safeguards for children. Members may want to note that the Committee’s report said that it would be disadvantageous for the Government to opt into this proposal, because the protection of a certain category of vulnerable defendant is best left to national policy and discretion. The differing approaches to the definition of the word “child” for the purposes of criminal procedural protection in England, Wales, Scotland and Northern Ireland demonstrate this point. There is a caveat to what the Lord Chancellor said in response to an intervention by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). We want to be sure that this would never be opted into. I heard what he said: he clearly would not want it to be. I suspect there may be a bit of coalition politics behind this, so I will not go down that route now. I hope that that will be resolved and that we will effectively find that this directive does not apply at any time. The Government’s estimates of the costs of an opt-in decision to the police and criminal justice system, and the costs of changes in domestic legislation in the context of the Police and Criminal Evidence Act 1984, are also relevant considerations.

Finally, Members should be aware that the Committee has expressed the view that the Government should not opt into the proposal in the directive on legal aid for two reasons. First, article 5(2) is premised on the directive on access to a lawyer, into which the United Kingdom has not yet opted. Secondly, the proposal would impose both a financial and a regulatory burden on the United Kingdom.

My function in my capacity as Chairman of the Committee is to set out the parameters and, in some detail, the Committee’s reasons for reaching its conclusions. I cannot say how delighted we are that the Government agree with us. I think that everyone’s concerns have been dealt with, and I therefore have no more to say on the subject—at any rate, for the time being.

Police Federation Reform (Normington Report)

Jacob Rees-Mogg Excerpts

Thursday 13th February 2014 Commons Chamber

[Jacob Rees-Mogg (North East Somerset) (Con)]

Usually when reports are called for by bodies, they come out with anodyne statements saying that everything is pretty marvellous. It is a rare civil servant who comes out boldly and states what he views as the unvarnished truth. Sir David Normington’s report is absolutely stunning in its conclusions. Although my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) mentioned this, it is worth repeating: a statutory body—I repeat, a statutory body—used its powers to target personally

“successive Home Secretaries, Andrew Mitchell, Tom Winsor and others, bringing the Federation into disrepute and risking the police reputation for impartiality and integrity.”

That is an enormously damning statement to have been made about a body that has particular rights and protections by statute. Yet it is worse than that, because this body that behaves in such a way—the Police Federation—finds that many of its members, while they still look to it to represent them in times of difficulty or crisis, say that they would not otherwise pay their subscriptions. In an independent report that one might usually have expected to be relatively anodyne, the voice of policing is utterly damned by both its actions and the view of its members.

What concerns me most is the constitutional aspect. We know that the federation conspired, lied and leaked to remove a Cabinet Minister from office. We know this because we have the transcript of the meeting that took place with my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) in his own constituency, and the response after that meeting of Inspector Ken MacKaill, who said:

“I think Mr Mitchell has no option but to resign.”

At that point, therefore, a statutory body representing the police, who have very particular powers under our constitution, was conspiring to bring down a Cabinet Minister. That is what happens in third-world countries, where the democratic rights of the people are overtaken by the forces of law and order, which intervene to have the type of government that they want, rather than the type of government that the people want. It is such a dangerous position to have got into when a body that has particular protections and a place in the state is able to abuse them and undermine the very constitution that gives them those powers.

That is also very damaging, as the right hon. Member for Leicester East (Keith Vaz) and others have said, to the concept we have in this country of policing by consent. When the police force was set up, there was great concern that having a permanent, paid police force would undermine basic civil liberties. The feeling was that they would be used to develop a police state, act as an arm of the Government, enforce laws unfairly and harass people, and that they would, therefore, lead us to being a less free society. We have been very lucky that that has not occurred and that the police have, by and large, been very responsible.

I am very glad that my right hon. Friend the Minister for Policing, Criminal Justice and Victims is sitting on the Front Bench and will respond to the debate, because he himself felt so personally and directly an abuse of the police’s power when they came into the Houses of Parliament—a royal palace—to search the office of an Opposition spokesman. We have, therefore, seen the leadership of the police—once involving the federation and once not—using their exceptional and extraordinary power to arrest an Opposition spokesman and to force from office a Cabinet Minister.

That should worry us extremely gravely, because our constitution works on the basis that we are a free society with a civilian police force that plays no part—no role—in the political life of the nation. That is why it has to have a Police Federation that is outside the political ambit, that is not a trade union—and that, therefore, might be supportive of a particular political party—and that is not able to strike because it is not able to wield its power in a way that could appear to be politically motivated. It is given special privileges and protections, but the Police Federation has abused them not just once but, as we have discovered, systematically in its approach to Home Secretaries of both parties and, indeed, Tom Winsor.

The report sets out the problems with extraordinary clarity and certainty. It also sets out what it perceives as being the solutions, but my goodness we should worry if membership of the Cabinet is decided not by the will of people, but by a conspiracy of dishonest members of the Police Federation. We should also worry, as other hon. Members have said, that if it can happen to my right hon. Friend the Member for Sutton Coldfield—one of the most senior Ministers in the Government at the time and one of the Prime Minister’s closest confidants—which of us going about our lawful business and which of our constituents, who do not have the protections of being a Member of Parliament, can feel safe?

That is the real problem of leadership in the Police Federation and perhaps more broadly in the Metropolitan Police. We all see at our local level and, indeed, in the Palace of Westminster the finest standards of traditional policing. There is a disconnect between the constable level and those who seek to lead them. It is damaging our constitution and it needs to be reformed.

Presumption of Innocence and EU Law

Jacob Rees-Mogg Excerpts

Monday 10th February 2014 Commons Chamber

[Mr Cash]

I am grateful to my hon. Friend for that intervention, because I rather agree with him. Whatever the aspirations of the Scottish nationalists and those campaigning for independence, I am afraid that at this juncture what they have to say, however worthy it may be, will not be within the criteria set out for reasoned opinions under the yellow card system.

I ought to say that I have had grave reservations about the yellow card system from the very beginning. I have never thought that it is a matter that should be decided by an aggregation of member states—if they choose number X, why not choose number Y? The fact is that if a member state wishes to act, in its own national interests—the Minister, judging by what he said, regards this as a matter of critical national interest—I suggest that the reason for disapplying or vetoing laws should rest with one member state, as my Committee’s report made clear, because it becomes invidious to choose a particular number rather than another.

The real question is whether the matter is sufficiently important in the interests of the democracies, the legislatures and the constitutional arrangements of a given country for there to be a veto. Indeed, I must commend my right hon. Friend the Prime Minister, who vetoed a treaty only a few months ago, and what is sauce for the goose is sauce for the gander. For this purpose, I think that there is a very strong case, where it is sufficiently important in the national interest, to go beyond the yellow card system.

[Jacob Rees-Mogg (North East Somerset) (Con)]

While my hon. Friend is talking about the yellow card system, is it not worth pointing out that the judge of whether the threshold is well enough argued once it has been met is the European Commission itself, so it ends up judging its own decision?

[Mr Cash]

My hon. Friend, as ever, is completely correct. In the case of the European public prosecutor, the threshold was actually exceeded, and what did the Commission do? It just said that it would go ahead anyway, with complete contempt for our Parliament and the others. That is really what is at stake in these circumstances. It is extremely disturbing. There is no need to enlarge that argument, so I will leave it at that.

We have had a fair description of what the measure is about from those on the Front Benches, so I will simply draw the House’s attention to the fact that, with regard to process, it is unreasonable to expect Parliament to come to an informed view on compliance with subsidiarity within the eight-week time frame allotted for issuing a reasoned opinion without the benefit of an analysis by the Government. The Minister, who may have been drawn into this somewhat at the last moment, would perhaps agree with that; I hope so.

Why was it only at the second time of asking, in a letter sent four days before this debate, that the Government gave a clearer indication of their view on subsidiarity? To put it bluntly, the Government have been prevaricating; they were not clear about their position until very recently. On the substance, however, I welcome the fact that in that letter the Government have belatedly accepted that

“a lack of evidence of necessity renders a proposal in breach of the subsidiarity principle”.

I would have thought that that was an unexceptional circumstance, but I nevertheless welcome it. I also welcome the fact that, given that the Government have accepted that the Commission has not complied with the procedural requirements placed on it to provide a detailed statement appraising compliance with subsidiarity, the Commission has agreed with the European Scrutiny Committee. We relied on both those arguments in our reasoned opinion, and we are therefore grateful and glad that the Minister has decided to support our proposal.

We note—I would be grateful if the Minister responded to this point—that the Government’s view is still conditional. There is a little bit of fudging going on. They use the phrase,

“if in principle the need were to be established”.

From what source—other than the impact assessment, which lacks the necessary evidence—do the Government think the Commission will be able to establish evidence of need? We also note that the Commission recognises that there is—believe it or not, in relation to a matter of this importance—

“limited statistical quantifiable evidence on insufficient mutual trust between the Member States”.

How, therefore, can there be the slightest justification for action at EU level? These are not mere words; they are about the application of the presumption of innocence in relation to EU law.

On a technical point, the legal base of article 82(2) of the treaty on the functioning of the European Union specifically requires evidence of necessity to facilitate mutual recognition. On the difference between the approach to the European convention on human rights taken by the EU and by the European Court of Human Rights at Strasbourg, I ask the Government to what extent they agree with the paragraph in the Commission’s impact assessment cited in the draft reasoned opinion, as follows:

“The ECtHR’s reluctance to lay down prescriptive requirements in these areas, which can be seen as a rationale for an EU measure. The approach of the ECtHR has not been especially activist in developing detailed and prescriptive rules in the area of Article 6(2) of the ECHR. It has left a margin of flexibility for presumption of innocence and related rights in light of the requirement to balance the fair trial rights of suspects”—

I know that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who is Chairman of the Justice Committee, will appreciate that—

“or accused persons with the general public interest, as well as the diverse legal traditions of Member States.”

The Committee concluded that not being “especially activist” was a trait that we strongly welcomed and should inform the decisions of any supra-national court.

We have produced our report and we are grateful that the Government have somewhat belatedly come to the right conclusions on this. We regret that it is only in the past few days that we have got fully engaged with this subject, but we are now glad that the reasoned opinion will go from this Parliament to the European Commission with the support of the sole Member on the Opposition Benches as personified by the hon. Member for Hammersmith. It is important that we do it, but what worries me is that it looks as though it will be doomed unless other member states come forward. If they are not as interested as we are in the matters raised by our Committee, that will be very sad for the European Union as a whole.

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[Mr David Nuttall (Bury North) (Con)]

Let me start, Mr Speaker, by apologising for missing the Minister’s opening comments.

I thank my hon. Friend the Member for Stone (Mr Cash) and the members of his Committee for bringing this matter to the attention of the House. It is yet another example of the fine work that they do in scrutinising and painstakingly going through the masses—hundreds and hundreds—of EU regulations and directives that emanate from Brussels to identify those that are worthy of consideration in debate on the Floor of the House.

This is such a measure and, frankly, it goes to the very heart of the British legal system—the presumption of innocence. Quite frankly, it is staggering that the EU should try to lecture this country. That is what it boils down to: the EU is trying to tell this country how to run its justice system, and trying to interfere with what we determine about the innocence of a subject until they are proven guilty in a court of law. This is just a further building block that the EU Commission sees as a stepping stone on its way to building an EU-wide common system of criminal justice, but it is one that we ought strenuously to oppose.

I am quite happy that we are being asked to approve the Government’s proposal to send a reasoned opinion back to Europe about why the measure fails the test of subsidiarity. In my mind, it certainly does fail that test, but like other hon. Members, I am extremely concerned that it appears that we will once again stand alone in our opposition to it. My understanding—I look forward to hearing from the Minister whether it is correct—is that the deadline for objections from member states is 12 February. If that is the case, there is very little time for this Parliament or any others to lodge objections. It therefore seems likely, although I wish it were not the case, that the measure will pass.

[Jacob Rees-Mogg]

Does my hon. Friend take the comfort that I do from the Government’s firm stance, in that even if no other Parliament sends in a reasoned opinion against the proposal, it would be eccentric of the Government, because it is subject to our title 5 opt-out, to opt in to one that is thought not to meet the test of subsidiarity?

[Mr Nuttall]

Absolutely. I for one certainly hope that the Government will not feel that it is necessary to bow to the will of Brussels on this measure. Although I am at one and in accord with the Government on their proposal this evening, I would have to depart from that course if they tried in future to suggest that we should adopt it given that the European Commission seems likely to pursue it. Bearing in mind this country’s proud history of establishing our own system of common law and the rights of an individual to be regarded as innocent until proven guilty, I see no reason why we need lecturing from the EU on this matter.

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[Mr Vara]

I am grateful to the Members who have contributed to this debate. It is good to see that there is agreement, because often there is not on this subject.

I made it clear at the outset that this was a matter for the House and that the Government were facilitating its consideration. Members have said loudly and clearly that they support the reasoned opinion of the European Scrutiny Committee and its submission to the European Union institutions.

I will address some of the points that have been raised by Members. When the hon. Member for Hammersmith (Mr Slaughter) spoke, he had no support from the Opposition Benches. However, he has a reputation for more than making up for that through his use of words. He did that today, as he always does. I thank my hon. Friends the Members for Stone (Mr Cash), for Aldridge-Brownhills (Sir Richard Shepherd) and for Bury North (Mr Nuttall) for their contributions.

I want to respond to the point that was made about the explanatory memorandums that were submitted. Five instruments were received at the outset, which was a lot of information. We tried to supply the House with as much information as possible within the time constraints that were on us. We provided the explanatory memorandums and there was criticism of them. Letters were passed between the European Scrutiny Committee and the Department. We subsequently provided further information. The Justice Secretary has apologised for the delay and given an assurance that we will try to provide more full and more timely responses in future. I have no hesitation in reiterating that apology.

The red card system is difficult to use in practice because Parliament cannot simply rid the UK of its obligations. Under the European Communities Act 1972, as the law stands we cannot pick and choose which EU law to implement beyond the terms of our opt-in for justice and home affairs matters.

[Jacob Rees-Mogg]

Is it not open to the House to amend the 1972 Act?

[Mr Vara]

Given the Prime Minister’s assurance that we will try to renegotiate a whole series of measures, I think the best way forward is to have that engagement with the European Union, get a series of proposals, and then go to the country for people to have the final say. The 1972 Act has existed for a long time, and there is not long to go from now.

EU Charter of Fundamental Rights

Jacob Rees-Mogg Excerpts

Tuesday 19th November 2013 Commons Chamber

[Chris Grayling]

The truth is that we were reassured again and again by the previous Government that this document had no legal force at all. Of course it now does have legal force in European law. The issue is about whether that legal force extends to UK law. We regard that matter as being exceptionally important. If there were any question of that linkage being made, we would have to take steps on it.

[Jacob Rees-Mogg (North East Somerset) (Con)]

Does the Lord Chancellor agree that to make things clear we should now insist that any judgment of the European Court of Justice needs to be confirmed by this House before it can be used by a court in this country? The ECJ is a political court; it extends the competence of the European Union under the treaties. It is for Parliament to resist that, so that our courts cannot take any judgment into account without our specific approval.

[Chris Grayling]

As my hon. Friend knows, I have a lot of sympathy with his concerns in this area. I have directly seen the way in which the ECJ has amended the rules on social security and left us in a position where we are apparently losing control of what should be a national competency under the treaty. These matters are essential ones for consideration as part of our party’s planned renegotiation of our membership of the European Union.

Crime and Courts Bill [Lords]

Jacob Rees-Mogg Excerpts

Monday 18th March 2013 Commons Chamber

[Maria Miller]

The hon. Gentleman knows that we are trying exactly to protect freedom of speech, so that newspapers have the ability to comment on proceedings in this place and more widely. We are protecting that important ability and maintaining and promoting freedom of speech.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I want to clarify schedule 4 of the royal charter, which states that a “relevant publisher” is

“a newspaper or magazine containing news-related material”.

Does that include, for example, newspapers published by local Conservative associations? Might we therefore have to register?

[Maria Miller]

My hon. Friend is slightly jumping the gun—we will come to that in more detail later—but I can give him a sneak preview of the answer, which is no. Clear tests included in new clause 29 make it clear that such publications will not be covered.

--- Later in debate ---

The new provisions will act as the key incentive for joining the new press regulator. However, our new clause is also designed to protect people who are not intended to be covered by the new regulator. Three interlocking tests will apply in that regard. They ask whether the publication is publishing news-related material in the course of a business, whether its material is written by a range of authors and whether that material is subject to editorial control. This provision aims to protect small-scale bloggers and the like. Together with new schedule 5, it will ensure that the publishers of special interest, hobby and trade titles such as the Angling Times and the wine magazine Decanter are not caught in the regime. Student and not-for-profit community newspapers such as the one mentioned by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) will not be caught, and scientific journals, periodicals and book publishers will also be left outside the definition and therefore not exposed to the exemplary damages and costs regime.

[Jacob Rees-Mogg]

We in this corner of the Chamber have been discussing definitions and wondering which magazines would count as hobby magazines. How, for example, would my right hon. Friend define Hello! magazine? It is surely not a newspaper, given that it indulges in the publication of gossip and celebrity pictures. Would it be covered, or would it be exempt, and who will decide where the line is to be drawn?

[Maria Miller]

My hon. Friend tempts me to repeat what I have just said, but perhaps he should read Hansard or the Bill instead.

New clause 29 describes in great detail who will be caught by the definition of “relevant publisher”. The publisher would have to meet the three tests of whether the publication is publishing news-related material in the course of a business, whether their material is written by a range of authors—this would exclude a one-man band or a single blogger—and whether that material is subject to editorial control. This is specifically designed to protect small-scale bloggers. Lone bloggers clearly do not meet those criteria. I hope that that clarifies that point.

--- Later in debate ---

[Guy Opperman]

Our constituents want a press that does not abuse the innocent, but that exposes the wrongdoer, the charlatan and the fraudster. I pay tribute to the work of Lord Justice Leveson, and to the people who have given evidence. Anyone who has ever given evidence or conducted legal proceedings will know that giving evidence is a traumatic and upsetting process, and to give evidence to the Leveson inquiry was a brave thing to do. Credit must be given to the Prime Minister for setting up the inquiry, and to all the parties for reaching some sort of agreement. However, it is a truism in legal circles and certainly in parliamentary circles that last-minute law is normally bad law. It is a matter of concern that the provisions have been produced overnight and that, even today, we are receiving manuscript amendments—only in Parliament are manuscript amendments typed—on important issues relating to exemplary damages, costs and the like.

[Jacob Rees-Mogg]

Is not the key to the matter the fact that this will be the law, and that it therefore constitutes statutory regulation of the press, with penalties and coercion if the press do not go along with it?

[Guy Opperman]

I hesitate at any stage in my parliamentary career to disagree on a matter either of parliamentary protocol or of statutory interpretation with the éminence grise that is my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). However, on this point I would disagree with him, because although the charter has to be brought to fruition through this House, it is clear that it is part of the common law. Its ongoing interpretation will be a common-law interpretation by a variety of High Court judges, who will spend a lot of time decoding, interpreting and attempting to fathom the provisions not only in the manuscript amendments but in the original proposals for the charter and the subsequent amendments that we received overnight. So, on this particular point, I disagree with my hon. Friend.

I suggest that this is a pragmatic resolution of a difficult parliamentary dispute. It is an all-party solution that accepts the fundamental principle that the Press Complaints Commission was patently not fit for purpose and was clearly letting people down. As my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) made clear in his well thought-out and eloquent speech, the PCC was unable to handle the large disputes of fact and law pertaining to the serious libels and slanders that take place in the media. It was extremely good at dealing with the local press and with low impact resolution-type cases such as those involving £10,000 payable for defamation, for example, but it struggled desperately to cope with the large media organisations and the particularly malign and difficult cases that, sadly, had to go to court.

That brings me, in the limited time I have, to the issue of costs. It fusses me tremendously that the position of an individual litigant in a case will not change that much. The royal charter might introduce a free process, in the sense that there is no claim form, unlike in normal litigation, but it will be free to those who are successful, because they will have some form of protection. The problem is that an individual litigant without means who lives in a suburban street in Hexham, for example, will still be unable to bring a course of action against a large media organisation. Contrary to the best efforts of those on both Front Benches, arbitration is still a complex, expensive and difficult process through which to navigate. It is also the case that while simple arbitration can and will be resolved on a relatively speedy basis, for the large cases that so concern us—everything from the Dowlers downwards—arbitration will take months at the very least, if not years, and will cost money.

That brings us back to the point of whether an individual who is so maligned by the press will be in a position to bring a course of action against a newspaper on the present basis of financial support. If that is lacking to such an individual, I struggle to see that happening. The individual would have to go to organisations such as the Free Representation unit or the Bar Pro Bono unit. I suppose I should make a declaration not only that I was involved with those organisations as a mediator, but that, statutorily speaking, I am still owed money by the Government for the work I did on behalf of the Government. That is, however, a side matter.

Finally, speedy laws done at the last minute—despite the massive efforts over many months by the Minister for Government Policy, my right hon. Friend the Member for West Dorset (Mr Letwin) and others—will always need improvement. The improvement ability of this royal charter is exceptionally difficult and, as was explained earlier, is part of the problem of having a royal charter. The difficulty is now passed to the House of Lords, which has a solitary day to consider all the provisions in the charter, the amendments and the manuscript amendments in circumstances in which, I suggest with respect, there cannot be reasoned debate or reasoned assessment. If we could address that particular problem, things would improve massively. The reality in the end will be that High Court judges will assess the royal charter on a common-law basis and interpret it as best they can—with all the ramifications that we would not wish to see on an ongoing basis.

Human Rights Act 1998 (Repeal and Substitution) Bill

Jacob Rees-Mogg Excerpts

Friday 1st March 2013 Commons Chamber

[Charlie Elphicke]

That is a fair point. The European Court in Strasbourg does make an awful lot of rulings that right-thinking British people would consider entirely perverse. What I have sought to do with the settlement proposed in the Bill is take the European convention out of the UK legal system so that it is not directly effective, and need not be applied by UK judges day in, day out. As my hon. Friend says, if we remain party to the convention, on a case-by-case basis—I think that there are about 10 cases a year—there would potentially be rulings against the UK, and the Executive would then have to consider putting provisions before Parliament to change that, or not. My hon. Friend is right to draw attention to the potential risks, difficulties and challenges.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I want to raise the question not of the perversity but of the legitimacy of the rulings of the European Court of Human Rights. They have no support from the democracy of the United Kingdom. Allowing foreign judges to rule on our laws lacks legitimacy, even if their judgments are sensible.

[Charlie Elphicke]

I have a great deal of sympathy with that view, and, as my hon. Friend will have noted from the polling evidence that I quoted, a large majority of the British people have an enormous amount of sympathy with it, too. I hope that, if the Bill is given a Second Reading and if my hon. Friend becomes a member of the Bill Committee, he will table an amendment to clarify the provision in question, and we can engage in a wider debate on it.

In March 2011, a YouGov poll found that 51% felt that human rights laws were bad for British justice. Significantly, there was strong support for rights being dependent on the conduct of the individual asserting them, and 64% rejected the motion that everyone should be entitled to have their human rights protected even if they had broken the law themselves. That is a key aspect of what I said earlier about the objective versus the subjective test. As my hon. Friend the Member for Christchurch (Mr Chope) pointed out, British people have an instinctive feeling about the issue of coming to court with clean hands. The principles of equity run deep in the psyche of the British people.

Seventy-five per cent. of those polled believed that the Human Rights Act

“is used too widely to create rights it was never intended to protect”.

That too is a key issue, which people often talk about. In February 2012, a YouGov poll found increased concern, with 72% agreeing that

“human rights have become a charter for criminals and the undeserving.”

Just 16% disagreed with that proposition.

The polling evidence highlights the extent to which the British people reject the UK’s current human rights settlement. People clearly and consistently do not feel that the right balance has been struck to restore public trust in our basic rights. The UK’s human rights settlement ought to be revised, and that is why I tabled the Bill.

It is worth reflecting on the UK’s history in relation to human rights. We have a long and proud history of protecting the rights of individuals against the Government. The development of those rights—which we now call “human rights”—stretches back at least 800 years, and includes Magna Carta and the 1689 Bill of Rights. Various settlements and Acts have changed the constitution over a long period. Many people think that we do not have a written constitution, but of course we do: it exists in many different documents.

The magic thing about our constitution is that, because it exists in those various documents and because it was not set in stone 200 years ago like the American constitution, it is easy to change and easy to keep up to date. It is easy for our constitution to bend like a reed when the breath of fresh air of social change sweeps across the country, and I think that it works well.

[Charlie Elphicke]

My hon. Friend is right. The European convention is a document that was drafted 50 years ago following the tyranny of the totalitarian regimes in the second world war and the blood that they spilt across Europe. We ought to have a document that is living. One of the biggest problems with the convention is that it is not a living document, but a document that was set in stone 50 years ago, and it has not kept up with or changed with our times. Europe has moved on, but the European convention has not moved on with it. One of the key problems with the whole idea of having written constitutions is that they cannot change over time. The Americans spend an inordinate amount of their time arguing about whether they have the right to bear arms, which strikes us as absurd. We in the UK can easily change things.

[Jacob Rees-Mogg]

I thought I should remind my hon. Friend that the right to bear arms is in our own Bill of Rights, where there is the right to bear arms because of the need to maintain a Protestant militia—which fortunately has gone out of fashion in more modern times.

[Charlie Elphicke]

My hon. Friend is absolutely right: when something goes out of fashion in the UK, we change things and move on. We are able to adapt. The Americans copied that provision from our provisions, but are now stuck with having continual arguments about it, whereas for us it is a fragment of our history.

Individuals do not just have basic rights; they also have basic responsibilities that reflect what is required for a civilised society to function. That is at the heart of the social contract that underpins our way of life. It has long been understood that the nature of the social contract will change over time: what is acceptable in one age is not acceptable in another, and vice versa. It is in the nature of the UK’s legal and constitutional structure that changes in the social contract can be accommodated peacefully and effectively. As the UK has no formal codified constitution, laws can be passed by this Parliament, as required, to keep pace with social change. That has worked well for us. We last had a revolution some centuries ago, whereas across Europe and elsewhere revolutions are commonplace. Our constitution can, and does, adapt; it keeps up with the times.

We have drawn on that heritage very helpfully in respect of the European convention on human rights, which we signed in 1950. We played a significant role in drafting it. It developed in the wake of the tyranny and inhumanity that characterised the fascist powers defeated in the second world war, and with an eye on the Stalinist terror behind the iron curtain. The purpose was to hold states to a range of basic human rights, to prevent the repugnant treatment of individuals in some parts of Europe in the 1930s and 1940s from ever happening again, but the UK resisted joining the European Court, the institution that would adjudicate on individual’s claims that the state had violated their convention rights.

The UK was concerned about the potential for unintended consequences and loss of national autonomy. Different nations have different cultures and diverse social norms that are unsuited to a one-size-fits-all approach. That is why so often our discussions about human rights go hand in hand with a wider discussion about Europe and how we can shape our way of life and our own unique British identity within the context of a larger organisation across the channel.

For a long time the binding jurisdiction of the Strasbourg-based Court of Human Rights and the ability of individuals to file claims that their convention rights had been breached was optional for convention states. It was only in 1994 that the UK agreed to the jurisdiction of the Court, including in cases brought by individuals, becoming a compulsory part of the convention. Even then, our agreement was reluctant.

The convention, including the rulings of the European Court of Human Rights, in cases to which the UK is a party is binding on the UK as a matter of international law. As discussed earlier, whether we should remain part of the convention is a wider question, which I have not sought to answer directly through the Bill, although I hope that when my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) serves on the Committee scrutinising it, he may wish to explore the issue further. Under the UK’s dualist approach, however, treaty provisions do not have force in the UK unless Parliament legislates to incorporate them, and it was long felt that the incorporation of the convention into UK law was unnecessary as it already protected the convention rights.

We then had the Human Rights Act 1998. Soon after winning power in 1997, the Labour party introduced the legislation that eventually became the Human Rights Act. Effectively, it copied and pasted into UK law the text of the convention rights that the UK has accepted internationally. Former Prime Minister Tony Blair wrote in the White Paper that this

“will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg. It will enhance the awareness of human rights in our society. And it stands alongside our decision to put the promotion of human rights at the forefront of our foreign policy.”

It will be recalled that putting human rights at the forefront of our foreign policy did not last too long and the whole ethical foreign policy idea was soon ditched, but the Human Rights Act has lived on a little longer.

The main provisions of the Human Rights Act came into force in October 2000. Most of the convention rights are very sensible—the right to life, prohibition of torture, prohibition of slavery, the right to liberty, the right to a fair trial. In fact we would not disagree at all with most of the convention. The issue has always been how these rights are interpreted by the European Court of Human Rights, which is a judicially activist court.

Difficulties have also been caused by section 2 of the Human Rights Act, which inserts the human rights code and the Strasbourg Court’s rulings directly into our legal system, so British judges have to apply those provisions in Britain whether they like it or not. My Bill would revise that section. Section 2 requires British courts, when applying convention rights, to take into account any judgment of the European Court of Human Rights that they believe is relevant. UK courts have taken this to mean they should follow clear and consistent jurisprudence from the Strasbourg Court unless there are exceptional reasons not to do so.

Real mischief—even evil—is done by section 3 of the Human Rights Act, which obliges British courts, along with everyone else, to interpret and apply UK legislation in a way that is compatible with the convention rights in the Human Rights Act, so far as that is possible to do. When introducing the Human Rights Bill, the then Government was clear that section 3 would introduce a radical change. They said:

“The Bill provides for legislation—both Acts of Parliament and secondary legislation—to be interpreted so far as possible so as to be compatible with the Convention. This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so.

This ‘rule of construction’ is to apply to past as well as to future legislation. To the extent that it affects the meaning of a legislative provision, the courts will not be bound by previous interpretations. They will be able to build a new body of case-law, taking into account the Convention rights.”

In other words, the Human Rights Act semi-entrenched the convention into our legal system and our constitution so that both past and future provisions of law have to be read in line with the convention or the rulings of the European Court. More than that, if the legislation is not totally incompatible, violence can be done to the language. That is a real threat to parliamentary sovereignty, as my hon. Friend the Member for High Peak (Andrew Bingham) made very clear.

[Jacob Rees-Mogg]

This is an incredibly important point, because this is a constitutional extension of the most extraordinary kind. It makes the Human Rights Act superior legislation, a concept previously unknown in the British constitution, arguably with the exception of the European Communities Act 1972. Having superior legislation is a direct threat to our constitution and the ability of Parliament to bind its successors.

[Charlie Elphicke]

I entirely agree. In my view, this is the worst part of the Human Rights Act, which is why one of the key provisions in my Bill is to change that.

--- Later in debate ---

[Charlie Elphicke]

That intervention takes us to the key issue of determining whether a person should be able to stand on their UK rights. British courts must take into account all the facts and circumstances of the case, including the conduct of the person seeking to assert the UK right and his adherence to the responsibilities set out in article 23, in considering whether it is fair, equitable and in the interests of justice for such a UK right to be applied to the question at hand. It is effectively the heart of the subjective test to which my hon. Friend the Member for Christchurch referred earlier as coming to equity with clean hands.

An important point that goes to the heart of the Bill is that rights must be matched by responsibilities. If someone has not discharged their responsibilities, that is taken into account when they seek to stand on a right. In other words, if they have broken their half of the social contract, that will go against them when they seek to assert the part of the social contract or rights on which they want to rely. It is right that judges and the courts should be able to consider the case in the round to determine whether a person can avail themselves of those rights. As I have said, someone should not be able to use the right to family life to stay on the run. That is a basic part of the subjective test.

The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights. Those broader considerations should include whether a person seeking a basic right has kept his part of the social bargain and the social contract. That is incredibly important. If we talk to a person in the street about the social contract, they will say, “Well, there are two halves, aren’t there? There are rights, but there are also obligations”—or responsibilities, as I have called them. That recognises the duality of the social contract that lies at the heart of our society.

When it comes to interpreting UK rights, the Bill removes the provision of the Human Rights Act that requires British courts, when interpreting and applying the rights in the Bill, to take into account rulings of the European Court of Human Rights. Instead, the Bill makes it clear that UK courts may take account of judgments from a wide range of sources, including but not limited to the Strasbourg Court, with courts of common law jurisdictions getting top billing, and rightly so, because we are a common law country, and there is a common law world out there that we helped to establish in the days of our empire, which now proceeds with common law jurisprudence. Australia, New Zealand, the United States and Canada are all countries that have common law foundations and have given much thought to many of the issues that often come before our courts. Why would we not look to them first, before we looked at the civil law jurisdictions of Europe? I think that is the right balance for us to have.

The Bill removes the provision of section 3 of the HRA, which requires UK courts to interpret and apply legislation in compliance with human rights so far as is possible. Instead, the courts are directed to give legislation its ordinary and natural meaning. Where the meaning is ambiguous, the courts would typically presume that a possible meaning that complies with UK rights is intended. In that way, we would give primacy back to Parliament and restore the confidence of the British people that Parliament decides. We would have a uniquely British code of rights that is right for this country.

[Jacob Rees-Mogg]

Surely we should give confidence to the British people that the British people decide—they, through their Parliament, rather than Parliament in isolation.

[Charlie Elphicke]

I entirely agree. I am happy to be corrected by my hon. Friend about the emphasis. He is right. We are not here to represent the Government to our constituents. We are here to represent our constituents to the Government and to Parliament, and to ensure that their will is carried through. That is a central part of what my Bill is all about.

We need to restore the sovereignty of Parliament when it comes to human rights. We need to restore confidence in human rights with a uniquely British settlement that the British people will respect and trust, with the right balance of rights and responsibilities, and also with the right balance to ensure that Acts of Parliament are not just turned over by the courts, but that courts apply Acts of Parliament passed by the lawmakers, which is the way it should be. The horse should always go before the cart, not the other way around. We need the right settlement for the UK—a settlement that people can trust and have confidence in, so that they will feel once again that it is a British settlement for the British people, and that strikes the right balance and has the right balance in fairness, which, to my mind, is the cornerstone of the British psyche and the British way of life.

[Rory Stewart (Penrith and The Border) (Con)]

I begin by praising my hon. Friend the Member for Dover (Charlie Elphicke) for introducing the Bill. It raises an extremely important issue which clearly irritates many people in Britain and is very dangerous. We have got to a situation where human rights are talked about as though they were some trivial, unnecessary issue. The phrase is connected in people’s minds with phrases such as “health and safety”. That is a very sad effect.

The question for us today is how we deal with the problem. My hon. Friend has eloquently explained that we have a problem and has eloquently given countless examples of things which intuitively make many members of the British public extremely anxious and extremely unhappy with the judicial and the political institutions. We should respect that. It might be tempting to say, as some lawyers do, that the British public are not focused enough on the moral details and the legal details of the case, and to trivialise their objections. This would be unfair, because there is obviously something important, deep and intuitive going on that makes people anxious about this kind of activity under the banner of human rights.

What is our solution? How do we look at these issues? We have to begin with a sense of what human rights are. Let me politely challenge slightly the definition of human rights put forward by my hon. Friend, without calling into question his overall point, which is that we are now in a mess. It seems to me that we can begin with a definition of human rights that would state that to say that somebody has a human right is to say that anyone, anywhere, treated in this fashion is wronged, and that their possession of that right is not relative to the costs or benefits of upholding it in any particular case. That sounds very technical and it sounds pathetic, but it is an important thing to establish at the beginning of this debate.

Human rights are based on notions of dignity and of inviolability, and they are in their nature universal. To say that somebody has a human right is a statement about their moral status. It is not a statement about their nationality. It is not a statement about their citizenship. It is to say that anyone, anywhere, treated in this fashion is wronged, and that although there may be a threshold above which that right could be suspended, below that threshold their possession of the right is not relative to the cost or benefits of upholding it in any particular case.

[Jacob Rees-Mogg]

But surely once there is a threshold, the right is not absolute.

[Rory Stewart]

My hon. Friend makes a very important point. Let me give an example. The concept of human rights is based on a notion of human dignity and on a notion that humans should be treated as ends in themselves, rather than as a means to an end. In other words, it is a sort of Kantian world view. It has an absolute view of the world on how people should be treated, but at a very extreme level there may be a threshold at which we in the Chamber would intuitively feel that that right could be suspended.

For example, if a child were in possession of information about a ticking bomb that was going to destroy a million people in a city, we might feel that in that situation it was justifiable to twist the child’s thumb to find out where that bomb was. In other words, there might be a threshold, in situations so extreme as to be almost hypothetical, where our human intuition would be that the right would be suspended, but, below that threshold, the possession of the right is not a function of the costs or benefits of upholding it in any particular case.

For example, it would not be justifiable in any situation to kill one individual in order to harvest their organs to save five other individuals.

[Jacob Rees-Mogg]

May I come back to my hon. Friend on his previous example? He said that a particular act would be justifiable to save a million people. What about 500,000? What about 50,000? What about 10,000? What about one?

[Rory Stewart]

That is a fantastic argument. The argument that I was trying to make was that in the case of five, 10, 15 or 20 people, our moral intuition is that a particular act is unacceptable. At another level, at the level of a million, our moral intuition is that it might be acceptable. This is a very difficult point. The point that I am trying to make is that we are in a sense deontologists. We are absolute up to a certain threshold, but there is a certain threshold at which a utilitarian or consequentialist calculus comes in.

As I said earlier, if it were a case of one person being killed to save five—in other words, that somebody could be killed, their organs would be harvested, and those organs would be used to keep five people alive—that would not be justifiable. Their possession of their inviolability—their immunity, their right to life—is not proportional to the costs or benefits of upholding it in any particular case. There may be—we almost never get anywhere near this kind of threshold—as a hypothetical, theoretical point, a threshold at which a right might be overruled by a consequentialist consideration, the one against a million. But below that threshold, the possession of the right is not relative to the costs or benefits of upholding it in any particular case.

[Jacob Rees-Mogg]

I am grateful to my hon. Friend for giving way once again. I think that he rather sold the pass once he had the child whose thumb could be twisted to save 1 million people, because if their thumb could be twisted, could their arm be broken? We are now getting into an argument about what is relative and find that there is no absolute. The same applies to the example of harvesting a person’s organs: we might not allow it if it would save five people, but what if it would save 5 million people? Does it then become justifiable?

[Rory Stewart]

My hon. Friend asks a very important question of moral philosophy. It is a question of moral intuitions. We are trying to create in our legal and moral systems something that reflects our common-sense intuitions as humans. We try to interrogate them, be logical and go back to first principles, but our common-sense intuition, I feel, is that humans have a moral status, that they are inviolable, that they have an intrinsic dignity, and that they should be treated as ends in themselves, not as means to an end.

However—this relates to the case of one against 1 million—we also have a strong moral intuition that there might be certain extreme circumstances in which it is justifiable to overrule an individual’s rights. There are different ways we can deal with that. In the German legal system, for example, it would be argued that twisting the child’s thumb, although morally justifiable, is not legally justifiable. The individual responsible would be prosecuted and convicted, but they would be congratulated on having made the correct moral decision, even if it was the wrong legal one. In our normal lives, however, such scenarios are purely hypothetical; we do not come across ticking bombs or children who could save 1 million people.

In our everyday lives, human rights are, in themselves, inviolable, which is why, as we consider the case brought by my hon. Friend the Member for Dover, we must ask ourselves this: what is wrong with the current system? It seems to me that there are four possible answers to that question, and he has given four possible answers. One of them, which my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has raised, relates to the question of sovereignty. The first possible answer on what is wrong with the current settlement on rights is that there is a problem of parliamentary sovereignty. The notion, which we could explore in greater depth, is that Parliament is sovereign and that the European Court of Human Rights, by overruling the decisions of the British Parliament, is not acting in accordance with the British constitution.

The second argument that could be made is that a question such as whether prisoners should have the right to vote—a recent and difficult case—is purely relative; that it is culturally relative. It could simply be argued that the reason the European Court should not get involved in prisoner voting is not because of sovereignty, but because the question is culturally relative—I say “tomato”, you say “tomayto”. These things are purely subjective and based on a particular cultural or historical context and the Court should not be fussing about them. The British think one thing, the Spanish think another. There is no way of resolving it, because it is purely relative.

The third argument is that we are dealing with subjects that are purely trivial, the argument being that voting rights for prisoners simply do not matter. There might theoretically be a moral solution to the question of whether prisoners should be able to vote, but it is a trivial issue and not something the European Court should be dealing with. Instead, it should be looking at more important issues.

The fourth argument, and the one I am tempted to choose, is that this is not fundamentally a problem of sovereignty, relativity or triviality; it is the problem of the European Court using the wrong principles to come to the wrong judgments.

Permit me to expand on those four arguments in more detail. The first argument is about parliamentary sovereignty, which my hon. Friend the Member for North East Somerset dealt with so eloquently. It is of course true that traditionally within the British system parliamentary sovereignty was supreme. Although Dicey talks about parliamentary sovereignty and the rule of law, it is quite clear that what he means by the rule of law is not what Lord Bingham means by the rule of law. In other words, in the conventional British interpretation, the rule of law is not something equivalent to the US constitution. It is not an independent body of law against which parliamentary statutes can be judged. It was not the case in Britain that an Act of Parliament could be struck down by a court on the grounds that it did not accord with the rule of law. That notion, which is of the 15th and 16th centuries, that there was an independent common law that trumped the actions of Parliament, was put aside. Essentially, for the past 300 years we have believed that Parliament is sovereign.

Under that interpretation, the European Court cannot possibly be engaged in trying to subjugate Parliament. At the very best, all it is engaged in is an international treaty obligation through which the British Parliament has voluntarily determined that it wishes to accept the rulings of the Court but can choose to ignore them if it so wishes, and in doing so it would not be breaking British law but would simply be in breach of its international treaty obligations.

So deep is that belief in the British mind that we are now the only advanced democracy in the world that makes no explicit distinction between constitutional and normal law. In other words, we have a situation in which, as my hon. Friend the Member for Dover has so eloquently explained, our constitution shifts continually over time and, at its worst, “bends like a reed” in the wind. It is theoretically possible, in a way that it is not in any other advanced democracy in the world, for a simple majority in Parliament—a majority of the people gathered here today, for example—to change the fundamental constitution of the British nation.

Every other advanced democracy draws a distinction between constitutional and normal law so that changing the fundamental constitution requires a special procedure. In northern European countries there is generally a demand for a two-thirds majority in Parliament, and in southern European countries there is more of a focus on a referendum. In some countries, such as Italy, there is interest in an intermediate vote, so the Parliament must be dissolved and the proposed constitutional change put to the electorate through a general election. That is all designed to make it very difficult for a Parliament to change the constitution. The idea—not a British one—is that a Government or Parliament are temporary, but the people are public, and the constitution exists to protect the people from the Parliament.

It would be possible to base the entire opposition to the European convention on human rights on an argument about parliamentary sovereignty, as my hon. Friend the Member for North East Somerset has, using British constitutional history. But that argument rests, fundamentally, on political institutions, not morality. It is difficult to see an ethical or moral case for the notion of untrammelled parliamentary sovereignty as an alternative to the protection of the inviolability of the individual’s rights. Indeed, the modern notion of democracy, which is shared in every other advanced democracy in the world, combines representation of the majority with protection of the individual’s rights.

[Jacob Rees-Mogg]

I do not think that my hon. Friend has fully established the inviolability of the individual’s rights. He has stated it, but he has not established it.

[Rory Stewart]

My hon. Friend, with enormous eloquence, raises a fundamental philosophical debate. The answer to his point is that one cannot establish the existence of inviolable rights unless one accepts two further principles. The first is the equality of humans; the notion that I, you, Mr Deputy Speaker, my hon. Friend, and indeed someone we have never encountered who lives at the other end of the Congo, are in all important respects equal in dignity and in rights. That is an insight of logic and of human consciousness and a basic commitment to the notion that, although we might feel that we are special and the only people who exist, as we become adults we acknowledge that other people, too, are independent moral actors who possess exactly the same dignity. The inviolability—the rights of the human being—which my hon. Friend has raised, is derived from that notion of equality and dignity.

[Jacob Rees-Mogg]

For the record, I think that the Deputy Speaker is so many leagues above me that I am not sure my hon. Friend is right. If one takes my hon. Friend’s point about the equality of humanity—the equality before God that I believe as a matter of faith—that does not mean that rights are always applied equally. Even in this Bill, the right to life—that most essential right—is qualified in the case of self-defence, so rights immediately become relative.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Just for the record, I think we are all equal unless there is a long intervention, when I might show a little more power.

[Rory Stewart]

Rights are indeed qualified, but that does not mean that they are relative. This is an important distinction. The clause that my hon. Friend mentioned does indeed establish the right but says that under certain specific circumstances it may be qualified or overruled. That is not a statement that the right is relative. It is not a statement that the right to life contained in the European convention on human rights is purely relative. It is not a statement that, below the threshold of the qualification, in other words, the specific circumstances in which a right may be suspended—this is what makes rights quite different from any other form of moral law—one’s possession of a right is not relative to the costs or benefits of upholding it in a particular case.

One’s right to life may be suspended at a certain threshold. The thresholds described in the European convention include those relating to civil disorder and military law. However, below those thresholds one’s right to life cannot simply be looked at in terms of the costs or benefits of upholding it in any particular case.

[Jacob Rees-Mogg]

But this right is so clearly absolute. The old Riot Act provided for the militia to start shooting because of the decision made at that time that the maintenance of order required immediate use of fatal force. That is no longer thought to be appropriate. It is therefore about a relative judgment relating to the balances between the individual and the collective.

[Rory Stewart]

We need to be very clear about what we mean by “relative”. The notion of “relative” that my hon. Friend is rehearsing simply says that rights and moral values evolve in a historical context. As he says, it is simply a matter of historical fact that different cultures at different times have taken different moral positions. Aristotle, alongside his other great observations, believed that women and slaves lacked souls. Today we realise not merely that he thinks one thing and we think another—that it is relative—but that he is wrong. He is wrong because moral language is implicitly not relative; it is, in its very structure, absolute. Moral language does not say, “I don’t happen to like you killing someone, but if you want to kill someone that is up to you.” In other words, it does not say that killing someone or not doing so is like you liking chocolate ice cream and me liking strawberry ice cream; it says that it is wrong and ought not to be done. Moral language is about questions of “ought”, not questions of “is”.

[Jacob Rees-Mogg]

But in saying that something ought not to be done one immediately goes on to add “except in certain circumstances.”

[Rory Stewart]

I will try again. The central point is that the notion of moral obligation—the notion of what ought or ought not to be done—relies on two conflicting principles that connect at the moment of the threshold. Those two conflicting principles are, on the one hand, the notion of the inviolability and dignity of the human being, and, on the other, a consequentialist or utilitarian argument of the greatest happiness of the greatest number. Philosophically, the origins of these two types of argument are entirely distinct. One is a deontological argument that simply states the dignity of the human being and their inviolability; the other is an instrumental argument based on consequences or results. Our legal system, and indeed our moral intuitions, combine these two, which meet at a point of the threshold. This is what we mean by “ought”. We mean exactly what my hon. Friend the Member for North East Somerset suggests: that the individual ought not to be treated like this except in very extreme circumstances above a certain threshold below which the individual’s possession of the rights is not a function of the costs or benefits of upholding it in any particular case.

This is important because it is a distinction between a relative position that says “I can take your life whenever I feel like it on the basis of no moral argument and no logical position” and a separate position that says “I may not take your life. There are certain extreme situations in which it could become legally permissible to do so, but I may not.” The distinction between human rights and a relative position is a distinction on permissibility—a distinction on what may be done.

[Jacob Rees-Mogg]

rose—

[Rory Stewart]

Before my hon. Friend intervenes again, let me be absolutely clear that the distinction is this: when I say that somebody has a right not to be tortured, I am saying that they may not be tortured. I am not saying that they will not be tortured; there might be a horrible situation in which their Government do torture them. The statement is a moral statement, not a prediction about the future. It is a statement about what we morally give permission to do: “You may not be tortured; you may not be killed.” It is then possible to state certain threshold circumstances in which our moral intuitions in terms of human rights shift to moral intuitions in terms of a consequentialist world view in which we say, “One person might be killed for the benefit of a million.” These are nice questions of moral philosophy that do not usually come up in our everyday life, which is based on the dignity and inviolability of the human being regardless of circumstance.

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[Jacob Rees-Mogg]

I am grateful to my hon. Friend for giving way; I will try to make this my last intervention. Once we accept the threshold, it becomes fundamentally arbitrary and merely a matter of arguing where it should be set. Therefore, the question is of the legitimacy of who sets that threshold—whether it should be the Queen in Parliament or a foreign court.

[Rory Stewart]

There is a disagreement here and it is not one that we can paper over. The question is: where should we put the weight of sovereignty? How important is sovereignty? Does sovereignty confer some form of immunity? Is there some magic in this Chamber that allows the legislators in it to do whatever they want? Is it the case, as Lord Hoffmann suggested in his judgment, that if this Chamber wished, it could simply flout human rights? Is that a statement about political fact in institutions, or is it about morality? Do we think that it is simply a fact that this Parliament could do whatever it wants, or do we think that this Parliament ought to be able to do whatever it wants? On this is based our whole conception of democracy.

Those who feel that this Chamber not only could, but ought to be able to do whatever it wants are basing their argument on one principle only, which is the principle of majority representation. Where I suspect there may be a disagreement between myself and my hon. Friend the Member for North East Somerset is on the notion that democracy is based not on one, but on two principles—majority representation and the protection of minority rights—and that, in the absence of the second criterion, we cease to be, in the full sense, a democracy.

This is a very difficult argument to make, because in this country we have every reason to be proud of the performance of this Parliament. Although theoretically, constitutional anxiety leads us to believe that this Parliament could do truly barbarous things, as a matter of fact it has not. In fact, consistently this Parliament has shown itself very respectful of the unwritten laws of the British constitution. When Parliament has attempted to fundamentally change the constitution of the United Kingdom through a simple majority in the House of Commons—as, indeed, it did with the proposal to abolish the House of Lords—it refused to take that opportunity. It backed away from it. Parliament’s reluctance, innate conservatism and caution with regard to issues relating to the constitution have meant that, from 1911 to the current day, people pushing for a written constitution or more formal constraints on the power of Parliament have not won.

That is good and it shows two positive things. First, it shows the important principle of common sense. Everyone in this Chamber agrees that we do not want to live in a world of technocrats. We like the fact that the British public have a say and that their common sense permeates this Parliament. At our best—we are not always at our best—we are a lens that connects the Executive to the voting public. We act as a mediator between public opinion—the sentiment, imagination and culture of the British people—and the laws passed in Parliament. Nobody in this Chamber wishes to pass to a world where we vest our power in technocrats or experts, such as a Mario Monti-type figure with great insight, who think they know what is best for the people. Our unruly common sense means that the public have tended to respect their landscape, to challenge the Government on, for example, wind turbines, and to refuse to co-operate—in a similar way to that in which the French public occasionally refuse to co-operate on farming—with the theoretical ideas of experts and Government.

The second reason to be proud of the sovereignty of Parliament is that it reflects a culture, but the question for my hon. Friend, who is one of the great supporters of untrammelled parliamentary sovereignty is this: do we have the confidence that the unwritten rules, the culture of this House and the deep understanding of the history of the British constitution—which meant in 1911 that Members of Parliament were very cautious about changing it—still hold, or did our vote on the House of Lords Reform Bill take us close to the brink? Is it possible that we are suffering from collective amnesia and that one can no longer say that the British Parliament is so deeply entrenched in its constitutional history that it can be guaranteed never to change fundamentally the British constitution?

If we are moving into a world that takes us into that danger zone, I believe that we need to follow the example of every other advanced democracy in the world and separate constitutional and normal law, and say that, in order to make a fundamental change to the constitution, which would affect the rights of citizens—this is why this is relevant to the European Court of Human Rights—we must ensure that special procedures are followed. The special procedure that we have tended to develop through precedent over the past 40 years is, of course, a referendum. We may not want a referendum to be the fundamental means by which we change the constitution. We may want to adopt a different procedure, such as a two-thirds majority or a free vote in the House—which, of course, is what the previous Government used to deal with the issue of the House of Lords—but we are moving to a world in which we need a proper procedure.

The reason why that is relevant to this debate is that the question of parliamentary sovereignty and its relationship with the European Court is the nub of the issue. The argument against the European Court cannot simply be that Parliament is sovereign, absolute and always right and that it should never be challenged. We have developed a doctrine of international intervention with regard to the notion that sovereignty does not confer immunity—that the rights of a country’s individual citizens can trump the sovereignty of a Parliament.

The second argument—moving on from sovereignty, with apologies for having paid so much attention to it—is about the question of moral relativism, although my exchange with my hon. Friend may have covered this issue adequately. The idea of moral relativism states that the question of prisoners voting is purely relative. I like chocolate ice cream, Mr Deputy Speaker, but perhaps you like strawberry ice cream—that is a question of taste, not of moral decision. The Spanish believe that prisoners should have votes and the British do not, but to argue that such things are purely relative and that there is no way of resolving them is very dangerous, because all these questions about rights are fundamentally issues of morality. Moral language is a statement about what is right and what is wrong—what we ought to do and what we ought not to do. It is not a statement of personal taste akin to saying, “I like red, you like blue, and that’s the end of the discussion.” What one says is, “You are wrong.” We must believe it is possible to resolve the question of who is right and who is wrong on the issue of prisoners voting and to do so through moral investigation and debate.

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[Jacob Rees-Mogg (North East Somerset) (Con)]

It is an enormous pleasure to follow my hon. Friend the Member for Penrith and The Border (Rory Stewart). That was one of the most instructive and thoughtful speeches it has been my pleasure to listen to in this Chamber. That is, I am afraid to say, a preamble to saying that there is a good deal of it with which I disagree, but I genuinely mean that it was a fantastic exposition of a defence of human rights to the extent that we have them.

There are difficulties with my hon. Friend’s view, as we discussed in various interventions. The question of absolutes is very difficult in the political context which law ends up being. In terms of moral absolutes, I have no difficulty, wearing a Catholic hat, in accepting them. I believe that clear moral absolutes are established by the Church, but the state is something very different, and pressures on it mean that the moral absolutes have to be dealt with in the context of the time. An obvious example is the definition of a just war. As we know, the definition, from Thomas Aquinas, sets out three conditions for a just war to overcome the problem of how states can deal with a threat to their existence against the Christian teaching that we should turn the other cheek. We find that a moral religious absolute is impractical in terms of the secular behaviour that states, Governments and nations require.

Individual Bills of rights or lists of human rights are not moral absolutes; they deal with political problems that exist at the time they are drawn up. My hon. Friend gave a wonderful example, of which I was unaware: the United Nations human rights convention that maintains the right to paid holiday. It is hard to believe that the right to paid holiday is an absolute moral right; it is something that comes about because of political pressure at the time—because of negotiations between the drafters and the sorts of things that lead to a political decision-making process.

When we look at the Bill, we see that some of the rights that are insisted on for a British Bill of rights relate to immediate and specific problems that we face. There is a part on voting rights for prisoners, and there is a part on the right to self-defence if one’s property is attacked. These are at the forefront of political debate at the moment. Therefore, good though the document is, it is hard to argue that the British Bill of Rights is an eternal moral document that will stand for 1,000 years.

The American Bill of Rights deals with the specific problems the Americans thought they had at the time when they were drawing up their constitution; although, interestingly, in the constitution rather than in the first 10 amendments, there is the part on how acts of attainder are limited: they may not relate to blood and they may not affect the next generation. An act of attainder was something that was an immediate political issue when the American constitution was being drawn up, but it is of no relevance today. Therefore, I dispute the point that Bills of Rights and human rights legislation deal with moral absolutes; instead I would argue that they deal with political problems.

I mentioned the wonderful example, from our own Bill of Rights, of the right to bear arms to maintain a Protestant militia, which was introduced immediately after the country had a Catholic King and a fear that he would use arms to enforce Catholicism on the country. A Protestant militia was considered necessary to defend against that. Wonderful and antique although that might be, it is not an eternal, everlasting moral principle. Indeed, I do not think eternal and everlasting moral principles often go well with the day-to-day practice of government and legislation.

The first of the four points made by my hon. Friend the Member for Penrith and The Border is the overwhelmingly important point—that the legitimacy of the political power that is making these decisions may then be altered by a subsequent political power. The next two points, on the issues of triviality and inconvenience, were arguments set up to be knocked down—they are clearly wrong-headed. It is absurd to say that some aspect of law is so unimportant that somebody should not have the right to bring a case on it. Equally, it is absurd to say that if something is inconvenient Governments can just override it because that would leave us with no rule of law at all. Therefore, the first point and last point are essential. The fourth point is the question of whether there is an essential morality that we can bring into our legislative system or whether it is, in fact, a matter of political legitimacy. In answer to that, I would say that it is a matter of political legitimacy.

It is interesting how well our constitutional settlement has served us. My hon. Friends the Members for Penrith and The Border and for Dover (Charlie Elphicke), have both referred to the Magna Carta, and said that we have had 800 years of these rights. Actually, the Magna Carta was a confirmation of rights that it was thought we already had. In 1685, habeas corpus was brought in as a confirmation of a right that we thought that we already had. The Bill of Rights itself is about confirming rights and stopping abuses of those rights. The approach has been to use the development of powers within this country—the barons in 1215, and Parliament in the 1680s—to assert these rights against an Executive who were abusing them.

We come to the position of Parliament. A great deal is made of parliamentary sovereignty. I am indeed a great defender of parliamentary sovereignty, but that is not an end in itself. Great, powerful and noble though these two Houses are, we are here as the servants of the British people with whom authority and legitimacy lie. That is the great safeguard of our rights and of our liberties. For a maximum five-year period, the British electorate have the final say on whether we are to continue in office, or whether somebody else is to be given a chance instead. That is at the core of the legitimacy argument.

The rights are the rights of the individuals who make up the United Kingdom. They may aspire to international rights, and that may be a wonderful ideal, but it is not one of practical implementation or politics. They have the right to suspend those rights from time to time when they see that there is a dire emergency. I am a great believer in habeas corpus as one of the most important rights that we all have to defend us from arbitrary government, but do I think that Pitt the Younger was right to suspend it during the Napoleonic wars, and do I think it was right to lock up fascists during the second world war? Yes, I do. It was correct to suspend a fundamental right when the nation was under fundamental attack, and no court outside this country could conceivably judge—

[Rory Stewart]

In suggesting that the right of habeas corpus can, in extreme circumstances, be suspended, my hon. Friend seems to be agreeing with the notion that there is such a thing as a right, a form of inviolability, albeit one that in certain situations may be set aside.

[Jacob Rees-Mogg]

My point of difference with my hon. Friend is the question of whether it is an absolute right that can be enshrined, or whether it is fundamentally arbitrary because once the threshold has been negotiated, the absolute quality of that right disappears. In that case, it is not an absolute moral right; it is part of our ancient liberties of which we are justly proud—and it is important that we should maintain it—but it is a liberty that can, in certain circumstances, be suspended. The question then is: whose judgment is legitimate during that suspension? In my view, the only possible legitimate authority for suspending that liberty has to be the body that represents the democracy that is at issue. It cannot be a foreign body or an overseas democracy; it has to belong to the people who are affected by it.

So, yes, in a religious context, there are absolute morals, and they may or may not be judged by a higher court at a much later stage in our lives, but they are not easily convertible in a temporal, secular society that has to deal with the immediate issues of the day. Our ancient liberties are a crucial way for us to defend ourselves against arbitrary government, and our constitutional settlement has been a great protector of those rights, in spite of the ease with which our constitution can be changed. Indeed, it is a greater protector of those rights than exists in all those countries with careful constitutions. Let us take the example of the arrangements at Guantanamo Bay, which the US Government have managed to say are constitutional. If a Government can find in their detailed constitution a legitimate way of doing something that is in fact outrageous, they can do that because they can say they are following the letter of the law. In our nation, however, we are always following the spirit of the unwritten constitution, which politicians have to abide by. We cannot get away with doing something outrageous by claiming to the electorate that we are following the letter of the law.

The row that we have had over terrorism prevention and investigation measures—TPIMs—and control orders relates to that point. We have introduced measures of an incredibly arbitrary and unjust nature, but they obey the letter of the law and meet the criteria set down in the European convention on human rights, as interpreted by our own judges. They replaced measures that were actually much fairer, in that, under an Act of the British Parliament, a foreigner living in this country who we did not want to live here could either leave or stay in prison. That seemed to me to be a perfectly reasonable thing for a sovereign Parliament to say. However, the courts said that it was incompatible with the convention, so we have come up with something that is compatible but fundamentally unjust.

That is the problem that arises when we try to impose absolute rights on a governmental system that needs to work with a degree of flexibility. We all accept that that flexibility is necessary, and it should then simply be a question of the examples that we need in order to determine it.

[Rory Stewart]

My hon. Friend’s analysis is moving and convincing, but I would challenge it by saying that it puts a high degree of trust in the seriousness, the historical knowledge and the culture of Parliament itself. If Parliament ceases to take on its responsibilities with that level of seriousness, and if it starts to make trivial changes to the constitution for reasons of political expediency, how are the British public to be protected against their Government?

[Jacob Rees-Mogg]

It is a matter not of trusting us, the politicians, but of trusting the British people who send us here in the first place. If we start playing fast and loose with the British constitution, there will be an election and we can be thrown out. If we use our powers arbitrarily, we can be thrown out.

There are in fact pieces of superior law under our constitution, one of which is the Parliament Act 1911, which specifically protects the life of a Parliament against an extension purely by the House of Commons. There is therefore an in-built reservation to ensure that we have to go back to the electorate and get their permission to carry on with what we are doing. Arbitrary Governments that extend themselves beyond the powers that are thought to be legitimate find that the British people want to get rid of them. Indeed, that was a major issue at the last election. It was one of the areas in which the Conservatives and the Liberal Democrats came closely together, in that we were advocating the ancient liberties of the subject against the Labour party, which was constantly infringing those liberties and placing more and more power in the hands of the state. The British electorate, in their wisdom, decided to put into office two parties that were committed—at least they were when they were in opposition—to preserving the freedoms of the British subject. We have seen it tried and tested, and it actually works.

A further point is that once we start saying that this House of Commons or these two Houses of Parliament are not capable of making these decisions, and that they must be handed over to unelected judges overseas, we undermine this House’s confidence to deal with matters properly and we give an incentive for it not to take its responsibilities seriously. Why? Because if we get it wrong, there is somebody else who can clear up the mess. Leaving the responsibility here makes us take more seriously the duties we have as parliamentarians and the obligation we have to protect our constitutional settlement.

Let us come back to the key issue of legitimacy. I choose the word “legitimacy” rather than “sovereignty” deliberately, because it is about doing what is acceptable to the people to whom it is being done, and for that we require a body of people with a sufficient unity of purpose to accept that what is being done to them has legitimacy even when they themselves are in a minority in opposing it. When we in Britain are in a minority opposing a judgment of the European Court of Human Rights, we do not feel that that there is such legitimacy or that the majority that has overruled us has a proper authority to do so. When our courts come out with a judgment that does not relate to human rights, we may rail against it and be cross about it, but we accept it as legitimate. When Parliament passes Acts that we as individuals do not like or that minorities oppose, we accept that Parliament has the legitimacy to do it because we attach ourselves to the whole of the United Kingdom in acceptance of that legitimacy.

[Rory Stewart]

My hon. Friend is making a powerful and moving speech, and a lot of it is immensely appealing and convincing. There is a problem, however, which is the fact that we set up this Court and we seemed to be quite happy with it so long as it was going around telling other countries how to behave. All these problems of illegitimacy and of undermining the sovereignty of other people’s Parliaments did not worry us at all until this Court that we created turned around and started telling us off.

[Jacob Rees-Mogg]

I do not disagree at all with my hon. Friend. I think we do take the view—the rather foolish view—when we set up these Courts that they will never affect us. Let us take the International Criminal Court. Nobody ever thinks that any senior British politician could be hauled in front of it. If that ever happens, we might suddenly decide that we were not so keen on the ICC. I admire the judgment of the Americans who have not joined the ICC because they recognise that if it is justice for one, it is justice for all.

As a strong independent sovereign nation with a history of behaving well going back way before the Magna Carta, I think that we ought to be able to settle our rules for ourselves and should be cautious of setting up courts that are essentially victors’ justice. In setting up the European Court of Human Rights, what we were really doing was saying, “We have defeated all these nations of Europe. They have had terrible dictatorships before. They are not like good old Blighty, so let us therefore show them how to behave like gentlemen by giving them this Court and this convention.” Then, when they started saying to us, “Well, you, too, must behave like gentlemen”—and of course like ladies in this modern age—we did not like it because we thought it affected and undermined our sovereignty.

To sit on the fence to a degree, I think that providing some guidance after the war might have helped for a limited period some of the immature democracies to reform and rebuild themselves, but I no more think that Germany or Italy need to be guided by a European Court of Human Rights than does the United Kingdom.

[Rory Stewart]

The challenge to what my hon. Friend is saying is that it is not primarily Germany or Italy about which people would be concerned. What would concern people would be that if we left the European Court and dismantled the infrastructure that we have created, what is at present the Court’s real purpose and influence—which seems to be directed towards Russia and countries throughout eastern Europe—would be undermined. It is the countries that are still, perhaps, in the position that my hon. Friend described, for whom the Court exists, and it is for their sake that we would be tempted, simply on the basis of the foreign-relations contribution to those countries, to continue to participate in such organisations.

[Jacob Rees-Mogg]

I am afraid that that was the former mandarin speaking. It is the Foreign Office view of the world that we must do all these things that undermine our own constitution because it makes it nicer for us when we are dealing with our colleagues overseas. It may influence them a little, and so forth. I would never give up one whit of our constitution for a minor diplomatic advantage. The proportion of the benefit to us of guiding our own constitution and safeguarding the democracy of the British people, in comparison with thinking that we can influence President Putin by half a—

[Rory Stewart]

My hon. Friend is making a powerful point, but it is undermined by his earlier statement that after the second world war it made sense for us to give a limited amount of sovereignty to this organisation, in order to create exactly the peace and stability in Europe that was so central to the welfare and security of the British nation.

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[Jacob Rees-Mogg]

I am glad to say that I did not undermine my own argument. My hon. Friend may not be aware that until 1969 Henry VIII’s Act in Restraint of Appeals was still on the statute book, and that until 1969 it was treason to take an appeal out of this country to a foreign court. Between 1950 and 1969, therefore, it was impossible, illegal, treason, for the European Court of Human Rights to rule against the United Kingdom. We had set something up that was very beneficial for people who had emerged out of war without there being a risk of anyone’s appealing to it—except in Northern Ireland, which repealed the Act a little earlier, but that is slightly beside the point. We were safeguarded by our wisdom in not repealing rather more ancient laws—rather more ancient laws with which I have a certain sympathy, as it happens.

I think that it was when we had the confidence to be a nation standing on our own two feet that we said, “We will not allow any appeals to go outside this country.” A case in point at that time was the papacy. When we felt ourselves to be a weaker nation, a nation in decline in which the business of politics was managing decline and in which we could not look after ourselves, we had to have a foreign court to serve as the final safeguard and fallback for what we are trying to achieve in this country. I simply do not believe that that is right or legitimate. I do not believe that our membership of the European Court on Human Rights has sufficient influence on other countries.

[Rory Stewart]

If we were to adopt my hon. Friend’s proposal and leave the European convention and the European Council, how would he explain to the other European countries that, having created the European Court and drafted the convention, then trumpeted it and helped to impose it on other Governments, we had suddenly decided that we no longer wished to be a party to it?

[Jacob Rees-Mogg]

We have created an awful lot of things that we do not necessarily still run. After all, we created Belgium, and we do not claim to run that. I think we can fairly argue that our legal system and tradition are fundamentally different from the continental system, and that over generations the common law has built up protections that differ from those in the universal declaration of human rights. Indeed, it was probably a mistake for us ever to sign that declaration.

[Rory Stewart]

In other words, my hon. Friend would say to the European people, “We created the European Court of Human Rights 60 years ago, and we—Conservative and Labour Governments—spent a long time saying that it was a great force for civilisation and progress. We sent some of our most distinguished barristers and judges to the Court. We celebrated its judgments. We used it to put pressure on eastern Europe and Russia. But now we have decided that it was all a terrible mistake. We will leave, and we will encourage other countries to leave as well. The whole European Court system can collapse, and the consequences for our commitment to human rights, and our attitudes towards eastern and central Europe and Russia, can take their own course.” Is that a rough version of what he would say?

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[Jacob Rees-Mogg]

My hon. Friend says we celebrate European Court of Human Rights judgments, but it is hard to think of many of them that we have celebrated. I do not remember any jubilee parties having been held to celebrate its judgments. Indeed, as he will be aware, we dispute and dislike many of its judgments.

[Rory Stewart]

I think my hon. Friend would agree that we celebrated very strongly the European Court’s rulings on the issue of habeas corpus, of which he is, rightly, so proud. We took enormous credit for the fact that the European Court introduced elements of habeas corpus, the notion of no detention without trial, and the prohibition on torture, which has transformed the political economy and human rights of southern Europe. We were immensely proud of that, and it was part of our foreign policy and our contribution to our own security. Are we now moving away from all of that, or are we saying times have changed?

[Jacob Rees-Mogg]

My concern is how the European Court of Human Rights operates in this country. Just because we leave it does not mean other countries cannot remain part of it. The key reason why it is so difficult for us is because of the differences between the common law and Napoleonic law and the fundamental basis of rights.

In England and Wales, we have, under the common law, the right to do anything that is not specifically proscribed by law. That is a very different system from the continental system, under which people have the right to do what they are allowed to do. For a European system, therefore, a detailed list of rights setting out what people can do is needed, whereas here people only lose rights when Parliament, through its democratic process, has decided that they need to be taken away in the interests of the state. That might be someone’s right to liberty for having committed a crime, or it might be their right to vote because they have committed a crime and lost their liberty, but those decisions are made under the common law by Parliament. It is not a question of having a list of rights defining what people can do and then assuming anything not on that list is not allowed. Our system of rights, in common with that of the Americans, produces a much freer and better system—which protects ancient liberties, which I hold very dear—than a system of specific rights, where anyone who comes into contact with them may be provided with a judgment, as opposed to being free to do anything that is not specifically not allowed.

I am, of course, in favour of some aspects of the convention. I do not want us to pull out of it and then start torturing people, but it is worth bearing in mind why the common law did not have torture, and how our system developed without torture whereas the continental system developed with torture. It all goes back to 1215, when, interestingly, we get Magna Carta and they have the fourth Lateran Council, which states that trial by ordeal cannot be supervised by the Church, and because the Church cannot supervise it, it cannot be the will of God, and therefore in a continental system someone can only be found guilty if a confession is extracted. Hence, for very good reasons—for moral reasons—the fourth Lateran Council gets rid of trial by ordeal, and the law of unintended consequences means it results in torture being routine in the continental judicial system. By chance and good fortune, at the same time, because the barons have come up against the King, we get the rights of liberty preserved and the continuation of the development of the jury system as a means of getting to truth, while also dropping the right to trial by ordeal because then, in pre-Reformation times, we were still tied up to the doctrines of Rome. That demonstrates that our systems diverged very sharply. Of course people living under a system in which torture forms an instrumental part need rights to be defined more carefully, and they have not had them before, so they needed them to be imposed.

[Rory Stewart]

I promise this will be my last intervention. My hon. Friend spoke very well about the notion that deeply rooted in Magna Carta is a British immunity to any of these temptations. The problem, however, is that we are facing very difficult kinds of challenges today. It is very difficult to believe that the kinds of mechanisms my hon. Friend is talking about, which are primarily to do with the expression of a Back-Bencher’s opinions in the House of Commons and elections to this place, can have a fundamental effect on issues such as predator drones. How would he deal with the question of predator drone assassinations? How would he explain how British tacit participation in and knowledge of assassination by predator drones has continued for three years without this Parliament touching on it at all and, as far as I can see in my junior position as a new Member of Parliament, without having any intention of touching on it in the next few years? In the absence of any code of rights—in the absence of anything to which one can appeal in order to protect people—how on earth is one going to have protection for citizens?

[Jacob Rees-Mogg]

That is essentially a matter of politics and the doctrine of the just war. If we are involving ourselves in predator drone strikes, we must ask ourselves whether the three criteria of a just war are met. Is there sufficient cause? Are we a legitimate authority? Is there is a reasonable prospect of success? It is for the Government to make that case and if they cannot do so, Parliament will ultimately have to decide. However, I would certainly not put the safety of the nation in the hands of a bunch of judges overseas—that is the worst possible example for my hon. Friend to use, even though I am sympathetic to his basic point that using drones is not something with which the British should be involved. The decision on that—the decision on our own national security—must surely rest with the Executive, held to account by the legislature.

That is why we are here and why MPs have been here since Parliament was first assembled; we are here to bring redress of grievance against the Crown and against the Ministers of the Crown. It is our job when representing our constituents, and in the legislation that we vote on and the questions we table, to redress grievance where the rights, liberties and freedoms of our citizens have been undermined. We do not need an overseas court to do that. Indeed, to the extent that an overseas court does do it, that reduces our ability to do it for our constituents, because the overseas court appears to be the legitimate authority for redress of grievance rather than this House.

The Bill is a step in the right direction, although I will not agree with every dot and comma of it. If I am asked to serve on the Committee, it will be a privilege and an honour to do so. I would like to see the Bill slightly simplified and to see it remove the European convention on human rights altogether. Indeed, I am not entirely sure that I would not like to see the Act in Restraint of Appeals return to the statute book to apply a slightly higher penalty for appealing outside this kingdom to foreign courts, because it is, in essence, the legitimacy of our democracy, the legitimacy of Parliament and the legitimacy of each Member here representing our constituents that defends the liberties of the British people. If we fail—if we do not defend those liberties and we pass them off to somebody else—the British electorate can get rid of each and every one of us and put in our place people who will stand up for their liberties.

European Union (Approvals) Bill [Lords]

Jacob Rees-Mogg Excerpts

Monday 4th February 2013 Commons Chamber

[The Minister for Policing and Criminal Justice (Damian Green)]

I beg to move, That the Bill be now read a Second time.

The European Union (Approvals) Bill simply provides for parliamentary approval of three draft EU decisions: the proposal to give legal effect to the electronic version of the Official Journal of the European Union; the proposal to agree the five-year work programme—the multi-annual framework—of the EU Fundamental Rights Agency; and the draft European Council decision to maintain the number of EU Commissioners at the equivalent of one per member state. The Bill underlines the importance placed by the Government on Parliament’s role in scrutinising the work of the European Union, which is why we enacted the European Union Act 2011.

The Government have given full consideration to all three measures and are of the view that the UK should support them. We are satisfied that they are in the best interests of the UK, and are sensible and reasonable. None has a significant domestic impact and, in particular, none will result in any additional financial burdens being imposed on the UK. The provisions in the Bill are technical in nature but will, in their own way, play an important role in the future shape of the EU. My right hon. Friend the Prime Minister has recently set out the need to examine the UK’s relationship with the EU. The provisions do not represent far-reaching changes, and there will be further opportunities to examine more fundamental changes in other debates.

The Bill seeks the approval of Parliament on two proposals brought forward under a legal base of article 352 of the treaty on the functioning of the European Union: the proposal to give legal effect to the electronic version of the Official Journal of the European Union; and the proposal for the next the five-year work programme, the multi-annual framework, of the Fundamental Rights Agency. Article 352 allows the Union to take action to attain one of the objectives set out in the treaties, but for which there is no specific power set out in those treaties. Any proposal brought forward under this legal base must be agreed unanimously by the Council and gain the consent of the European Parliament, so that at European level there is a high bar for such a proposal to meet.

For the UK to agree to this at Council, and for the required unanimity to be secured, Parliament must first give its approval. The Government have put in place further parliamentary controls for proposals brought forward under article 352 of the treaty. Section 8 of the European Union Act 2011 states that a Minister of the Crown may not vote in favour of, or otherwise support, an article 352 decision unless it is approved by an Act of Parliament. Therefore, without the agreement of Parliament a proposal brought forward under this legal base cannot be adopted.

The EU Commission currently comprises 27 commissioners, one from each member state. The Lisbon treaty provides for a reduction, by one third, in the size of the Commission from 1 November 2014. However, the treaty also allows the European Council to alter the number of commissioners, subject to unanimous agreement. To secure Ireland’s ratification of the treaty, it was agreed that a decision would be taken to maintain the number of EU commissioners at the equivalent of one per member state. Section 7 of the European Union Act 2011 provides that a Minister of the Crown may not vote in favour of such a decision unless the draft decision is approved by Act of Parliament.

[Jacob Rees-Mogg (North East Somerset) (Con)]

The previous Lord Chancellor thought that the second draft decision, on the multi-annual financial framework, did not require an Act of Parliament because it fell under article 308 of the previous treaties—now section 352 of the new treaties. Do the Government have a clear position on whether anything previously under article 308 will now always require an Act of Parliament?

[Damian Green]

That level has not been reached. My hon. Friend is right that the Minister without Portfolio, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the previous Lord Chancellor, came to that opinion, but, as my hon. Friend will also be aware, the European Scrutiny Committee challenged the basis of the assessment, and it was found that, because the previous agreement had been made under a previous version of the EU treaties that was not specifically provided for in the 2011 Act, it did not fall within the exemption set out in the Act. That is the principle on which the Government will operate.

[Jacob Rees-Mogg]

I am extremely grateful for that clarification. The Act clearly refers to article 352, so would it be fair for the House to assume that if it is not specifically under article 352, the exemptions will not apply?

[Damian Green]

It is fair for the House to assume that were it equivalently done on the basis of previous treaties, the precedent set by the decision would apply, but I would hesitate, off the top of my head, to take that any further.

I turn now to the detail, starting with the electronic version of the Official Journal of the European Union. The Official Journal is the gazette of record for the EU. It is published every working day and records the decisions made and legislative acts of the EU institutions. The electronic version of the Official Journal has existed in parallel with the print version for some years, but a European Court of Justice judgment found that only the printed version was authentic. EU legislation is necessary, therefore, to enable the electronic version to have legal effect.

The EU institutions believe that if publication of the electronic version is given legal effect, access to EU law would be faster and more economical. At the moment, anyone wishing to access the authentic version must order and pay for printed copies of the Official Journal. This proposal will not affect those who wish to continue to have access to the printed version. This is a sensible measure in a world in which electronic communications have revolutionised how information is distributed and accessed. It will have no significant impacts or effects on the UK.

The second proposal for which the Bill seeks to provide approval is the work programme of the Fundamental Rights Agency, established in 2007. Its role is to support the European institutions and member states—when they are acting within the scope of EU law—to take measures and actions that respect fundamental rights. The agency does this through the collection and analysis of information and data. It also has a role in communicating and raising awareness of fundamental rights.

The agency’s work is regulated by a five-year work programme setting out the thematic areas of the agency’s activity. These must include the fight against racism, xenophobia and related intolerance and be in line with the European Union’s current priorities. The work programme, defined by the Council of Ministers, gives the member states control over where the agency undertakes its work.

The agency’s first work programme covered the period 2007 to 2012. In December 2011, the Commission brought forward a proposal for a new work programme to cover the period 2013 to 2017. The proposal was amended through negotiations. The measure for which approval is sought very much continues the themes set out in the previous work programme, although there are some adjustments in the terminology.

The agreement of a new work programme will not alter the tasks of the agency, and nor will it change the agency’s role or remit. The work programme does not set out or define these elements. Those are set out in a completely different instrument—the agency’s establishing regulation—and that instrument is not under review at this time. The work programme simply sets out the themes under which the agency will work. Failure to agree the work programme will deprive the Council of the opportunity to set the direction for the agency by defining these themes.

I turn now to the third element in the Bill: the draft decision to maintain the number of EU commissioners at the equivalent of one per member state. The proposed reduction in the size of the commission and the subsequent loss of a guaranteed commissioner emerged as a concern of the Irish during the ratification of the Lisbon treaty. In order to secure Ireland’s ratification of the treaty, it was agreed that a decision would be taken to maintain the number of EU commissioners before the appointment of the next Commission in 2014. The European Council has put forward the draft decision to fulfil the commitment made to Ireland.

This Government are committed to creating a leaner, less bureaucratic European Union and to improving efficiency in the EU institutions, including the Commission. We believe there is significant room for savings in administration and will continue to push for substantial reductions in the EU’s administrative costs. However, it is also important that the UK maintains its EU commissioner. By agreeing to this draft decision, the UK will retain its guaranteed commissioner and be in a stronger position to influence the make-up of the next Commission. Furthermore, the draft decision states that it should be reviewed before a new Commission is appointed, in 2019, or when the number of EU member states reaches 30, whichever is earlier. The draft decision does not give the go-ahead for the Commission to continue expanding ad infinitum.

I hope the House will agree with our assessment that these measures, although necessary, are administrative in nature, improving the accessibility and legal certainty of the EU’s official record, providing an EU agency with a work programme and fulfilling a commitment to the Irish people.

--- Later in debate ---

[Chris Heaton-Harris (Daventry) (Con)]

It is a pleasure to speak on a matter European where there is general agreement across the House and no time limit on the scoreboard. I shall go on for only a couple of hours, and I have already issued my press release saying I was “speaking to a packed Chamber.” As long as the few Members here keep quiet about it, I shall be fine.

I thought it might be wise to explain why it is important to discuss these matters. As the European Union Act 2011 has brought today’s debate forward on the basis that Parliament is required to pass an Act to approve the relatively low-level EU decisions in clause 1, it might look as though those decisions are of no consequence and do not need to be talked about. As both the Minister and the shadow Minister said, however, these are quite important matters, and some other member states find them amazingly important.

The German Federal Constitutional Court talked about article 352 of the treaty on the functioning of the European Union—the flexibility clause that has caused so much excitement in the past—on which these proposed decisions are based. It considered that article as part of its 2009 judgment on the constitutionality of German basic law and the Lisbon treaty when Germany was seeking to ratify the treaty. Specifically, it considered the question of whether the article, which gives the European Union sweeping legislative power, was compatible with democracy as enshrined within German basic law.

The court had already found that, to have democratic legitimacy, the powers of the EU must be rooted in a democratic decision of Germany’s national Parliament to confer those powers to the EU. The German court said:

“Article 352 TFEU not only establishes a competence of action for the European Union but at the same time relaxes the principle of conferral.”

That is the principle that powers must be conferred on the EU by member states under article 352. The court continued:

“action by the European Union in fields set out in the Treaties is intended to be possible if the Treaties have not provided the specific competence necessary…The provision can thus serve to create a competence which makes action on the European level possible in almost the entire area of application of the primary law”

across the EU treaties.

The court ruled that

“As regards the ban on transferring blanket empowerments or transferring Kompetenz”—

the competence for the EU to decide its own powers—

“the provision”—

that is, article 352—

“meets with constitutional objections because the newly worded provision makes it possible to substantially amend Treaty foundations of the European Union without the mandatory participation of legislative”—

national—

“bodies beyond the Member States’ executive powers”.

Essentially, the court said that the German Parliament would have to examine these matters again.

It is good that we are at least mimicking the German Parliament, albeit a few years later. We are here to discuss relatively important issues, as has the German Parliament. It could perhaps be argued that the German public may be a tiny tad less Eurosceptic, because their Parliament talks about these matters sensibly and regularly, and that they therefore may understand them slightly better.

[Jacob Rees-Mogg]

Will my hon. Friend give way?

[Chris Heaton-Harris]

I knew that I was going to provoke some reaction.

[Jacob Rees-Mogg]

I am very concerned that our speaking about these matters will make the country more pro-European. I want to encourage people in their Euroscepticism, so I think that we should perhaps talk about them less.

[Chris Heaton-Harris]

I think that all scepticism should be based on reality. We should talk about things with decent facts in front of us. This is a very good forum in which to discuss the facts, so let us do that.

The Bill has been produced as a result of the requirement of the excellent European Union Act 2011 to approve the three EU decisions that have already been mentioned. Under the Act, before a United Kingdom Minister can give final agreement in the Council of the European Union or the European Council to decisions proposed on the basis of the EU treaties being used in these cases, the proposed decisions must be approved by an Act of Parliament. That is what we are doing today. Although certain proposals based on the EU flexibility clause are exempt from the requirement for an approving Act of Parliament, those exemptions do not apply in these cases. I will happily go into the details if Members want to know what they are. The hon. Member for Blaenau Gwent (Nick Smith) is obviously keen to discuss them; perhaps we will do so afterwards, over a beer.

Under the EU treaties, EU decisions of this kind require unanimity in the Council or the European Council, which means that without the UK’s support they cannot be adopted, at least to cover all member states.

Members have already listed what the proposals would achieve. There is an EU regulation enabling the electronic rather than the printed version of the Official Journal to take EU legal effect. There is an EU decision that would set out the broad areas of work of the European Union Agency for Fundamental Rights between 2013 and 2017. There is also an EU decision on the number of European commissioners.

Although the first two proposals may not seem to be hugely important, they are based on the flexibility clause, which gives the EU sweeping powers to adopt laws when the treaties have not otherwise given it the power to legislate. It has been used to adopt significant EU measures in the past, such as the creation of the EU bail-out fund for non-eurozone member states. It was therefore thought to warrant parliamentary control, and that thoroughly good idea was introduced by the European Union Act.

The two proposals dealt with by clause 1 are being introduced under the flexibility clause: they are article 352 decisions—flexibility decisions. As I said, the flexibility clause has been used to co-ordinate national social security systems for the benefit of all member states’ nationals when moving within the EU; to provide for measures against the counterfeiting of euro coins that apply to member states outside the euro; and for the bail-out fund. We are talking about significant measures.

The Bill deals with the EU Official Journal, which is not exactly the most exciting document in the world but, as the hon. Member for Caerphilly (Wayne David) said, it contains striking elements of importance to the functioning of the single market, and to EU business and UK business in general. I have a small problem with it, because everything has to be translated into each of the official languages of the European Union. This is not a debate for now, but that approach means that everything that is said in the Official Journal has to be translated into, for example, Gaelic, and that is perhaps not the best use of money.

--- Later in debate ---

[Martin Horwood (Cheltenham) (LD)]

It is great to see the European Union Act 2011 in action. It has certainly drawn in the crowds today, in just the way that we might have warned that it might not do when we discussed the Bill. During its passage through Parliament, we warned that the Bill might represent a slightly disproportionate response to concerns about scrutiny and democracy in relation to European affairs.

The fact that we have ended up spending parliamentary time on the Floor of the House discussing the publication in electronic format of the European Parliament record suggests that we might have had a point. I remember Ministers optimistically assuming that a debate such as this might assuage the Eurosceptic concerns about democracy and scrutiny in relation to Europe. I thought at the time that that might be optimistic.

[Jacob Rees-Mogg]

I am not sure whether my hon. Friend heard all of the speech of my hon. Friend the Member for Daventry (Chris Heaton-Harris), which explained that the Germans have an exactly similar procedure in regard to article 352 on the treaty of the functioning of the European Union to ensure that those measures are legislated upon by their Parliament. Surely if it is good enough for the German people to have proper ratification procedures, it should be good enough for us.

[Martin Horwood]

Only yesterday the hon. Gentleman was declaring on Radio 4 that he was taking his lead from the Catholic hierarchy. Now he tells the House that he is taking a lead from the German Parliament. At this rate he might get a reputation for being a Europhile, which might not do his reputation within the Conservative party too much good.

--- Later in debate ---

[Jacob Rees-Mogg (North East Somerset) (Con)]

It is a pleasure, as always, to follow my hon. Friend the Member for Cheltenham (Martin Horwood), with whom I disagree on almost every matter regarding Europe, this being no exception. I think it is fantastic that we are spending parliamentary time scrutinising what is being done in the European Union. So many laws come to our nation from the European Union practically rubber-stamped as an appendix to a report put out by the European Scrutiny Committee that is not even debated in a Committee upstairs. The percentage that we send through for debate in Committee is small, and that which comes to the Floor of the House smaller still.

Article 352 of the treaty on the functioning of the European Union allows the European Union very widespread powers to extend its abilities to legislate across its areas of competence, and it is important for us to scrutinise and control that.

[Martin Horwood]

How many of the hon. Gentleman’s constituents or lobbying organisations have contacted him with their concerns about the electronic publication of the Official Journal of the European Union?

[Jacob Rees-Mogg]

I am bombarded with messages from across the country, and probably internationally, from people who want to know that the laws that affect them are made clearly so that they know what they are and are not caught out by trickery and underhand practices. That is a fundamental principle of why they send me here. I would argue that everybody who voted at the last election wants to sleep securely in their beds knowing that the law is fairly and properly made.

[Kelvin Hopkins]

I often agree with the hon. Gentleman, but on this point I agree very strongly. I am perhaps alone in insisting on having hard copy in my Select Committee meetings rather than an iPad. I can operate an iPad but I want hard copy, and I still have it. Much as we know that we are in an electronic age, paper still has its place.

[Jacob Rees-Mogg]

The hon. Gentleman, as so often, is wise and right in this instance.

[Bob Stewart]

It might not be of much importance that the electronic publication of the Official Journal goes ahead, but I put it to my hon. Friend that it is pretty important how many commissioners are appointed, because that has a direct spin-off in cost terms.

[Jacob Rees-Mogg]

There are two parts to my hon. Friend’s point. On the first part, I disagree with him. The form in which instructions are sent out is important, and it is right that people should know about it. It is a long-standing principle of our law that ignorance of the law is no excuse. If that is fair, it is also fair that knowledge of the law should be made available to people in a timely and efficient way, because it is something that might affect their lives, and that when a change to the method of notification takes place, that should be debated in this Chamber and passed into law. On the second part, I completely agree that the number of commissioners is significant.

The second point that I raised with my right hon. Friend the Minister is crucially important. It relates to the change from article 308 of the previous treaty to article 352 of the treaty on the functioning of the European Union. Article 352 is broader in scope. Had it been assumed that anything previously incorporated under article 308 could be transmuted under article 352, that could have allowed all sorts of laws—my hon. Friend the Member for Daventry (Chris Heaton-Harris) went through a number of them—to pass into the body of European Union powers without any further scrutiny by this House. As is often the case, something that is in itself minor has set an important precedent in protecting the rights of this House to scrutinise these matters and to ensure that the interests of our constituents are protected.

I wish briefly to discuss the number of commissioners. I do not have the confidence that some hon. Members have in our commissioners, and I do not feel happy that we have one representing us. Commissioners take an oath that they will act in the best interests of the European Union. Some have argued that that is directly contrary to the oath that they have taken as Privy Counsellors, and we should be concerned about that. They are there, by design, to represent the interests of Europe, not of the United Kingdom. Perhaps because of our history and our civic traditions, our commissioners tend to take that very seriously, whereas commissioners from some other countries may simply represent the nation state that has sent them. I do not have great confidence that the person representing the United Kingdom is waving the Union Jack; they could just as well be waving that awful European Union flag.

[Kelvin Hopkins]

I thank the hon. Gentleman for giving way yet again. I am one of those who have been concerned for many years about our commissioners, not just because they do not represent my view, but because I do not think they represent the collective view of our people, if there is such a thing. One possibility might be for them to be elected. We have started to elect police commissioners, but European commissioners are much more important.

[Jacob Rees-Mogg]

That is a brilliant idea. If they were elected, there would be less chance of their going native, because they might be able to stand for election again. At present, there is a fear that, when people go off to Europe, the moment they arrive they send out for Belgian dress so that they can appear to fit in with the ethos of the European Union.

I want to address the question of Ireland and the specifics of what it was given to persuade it—bully it, perhaps—to ratify the Lisbon treaty. That shows—I think that this strengthens the Prime Minister’s renegotiation position—that countries can renegotiate with the EU for things that they feel they need when discussions are being held in the European Councils. That is an important point. We have often heard people say, “The Prime Minister can go off to Europe, but they will not give him anything. It’s too bad: you’ve just got to like it or lump it.” Actually, the European Union, for all its many faults, is a fundamentally pragmatic body in how it gets agreement among member states. It does a lot of horse trading, one way or another, to get agreements. I do not know whether the hon. Member for Wolverhampton North East (Emma Reynolds) wants to intervene, but she seems to be nodding vaguely in response to that particular point.

The situation means that, if we go to the EU and say, “If you want X, you must give us Y,” or, “If you want X, you must give us A to Z in return,” that is a strong position for us to be in when the requirement is for unanimity. What Ireland has done, and what we are bringing into law, is very important and very encouraging for the United Kingdom and for the position of my right hon. Friend the Prime Minister in his negotiations.

Finally, I praise the Government for the Bill, which has been proposed as a consequence of the 2011 Act. When the Act was going through Parliament, it was not universally welcomed, certainly not by those on the Opposition Benches, but even Eurosceptics on my side were sceptical about the effect that it would have. I was extremely pleased to hear the hon. Member for Caerphilly (Wayne David) welcome the Bill and I am pleased that the Government have changed their view so that the multi-annual financial framework has to go through British law. That shows that the 2011 Act is working and acting as a proper check on what goes on in the European Union.

Without the Act, none of the three things under discussion today would have required legislation, but, because of it, they all do. As a result, crucial issues, such as the future number of European commissioners and renegotiations such as that which took place with Ireland to get it to support the Lisbon treaty, have come before this Chamber. Although in this instance the Bill has turned out to be uncontroversial, it could have been very controversial. I think that we are now secure, thanks to the Government, in having a better check on the accretion of powers to Europe. I might like to reverse them, but at least we are now checking them.

Leveson Inquiry

Jacob Rees-Mogg Excerpts

Monday 3rd December 2012 Commons Chamber

[Damian Collins (Folkestone and Hythe) (Con)]

rose—

[Jacob Rees-Mogg (North East Somerset) (Con)]

rose—

[Ms Harman]

I will press on with my comments, because many hon. Members want to speak.

That is the core reason why Leveson concludes that statute is, to use his word, “essential”. However, to follow up on the point made by the hon. Member for Reigate (Mr Blunt), all that any statute would have to do is set out criteria about what independence means and check once every three years that it is still independent—that is all. The oversight body—the one prescribed by statute—would have no role in hearing complaints, no role in deciding whether they are justified, no role in laying down penalties, and absolutely no role in deciding anything that does or does not go into a newspaper. That would be down to the independent self-regulator set up by the industry.

--- Later in debate ---

[George Eustice (Camborne and Redruth) (Con)]

I, too, begin by drawing attention to my entry in the Register of Members’ Financial Interests. I receive remuneration for a regular column in PR Week—but hon. Members will realise that that has not had any influence on my opinions on these matters.

A number of hon. Members have alluded to the long history of failure on this issue. I am conscious that I have only 10 minutes in which to speak, but I do wish to reflect on some of that history because the House has not always been very good at learning from the mistakes of the past. This story begins in 1949, with the first royal commission advocating the setting up of a royal commission and saying that Parliament should do something about the issue. Four years later nothing had happened, so the Labour MP C.J. Simmons, a former journalist, introduced a private Member’s Bill, which forced the industry to say that it would now act. In withdrawing his Bill, he said:

“I give warning here and now that if it fails some of us will again have to come forward with a Measure similar to this Bill.”—[Official Report, 8 May 1953; Vol. 515, c. 806.]

In 1962, a second royal commission told the press that it needed to toughen up self-regulation:

“We think that the Press should be given another opportunity itself voluntarily to establish an authoritative General Council…We recommend, however, that the government should specify a time limit after which legislation would be introduced.”

In 1977, there was a third royal commission on the press, after more failure. It said:

“We recommend that the press should be given one final chance to prove that voluntary self-regulation can be made to work.”

Let us fast-forward to 1990 and the Calcutt committee. At the time we were told:

“This is positively the last chance for the industry to establish an effective non-statutory system of regulation”.—[Official Report, 21 June 1990; Vol. 174, c. 1126.]

In 1993, the Calcutt review said that the Press Complaints Commission was not effective and recommended a tribunal backed in statute.

[Jacob Rees-Mogg]

I wonder whether my hon. Friend could describe the problems that these great reviews were looking at. We now look back at what was happening in the ‘40s, ‘50s, ‘60s and, in particular, the ‘70s, when my father was editing a national newspaper, as great examples of fine newspaper work, so what were these commissions dealing with? Is it not actually unnecessary to keep on quoting from these reports, because there was not a real problem in those days?

[George Eustice]

Each and every one of those commissions and inquiries was sparked by the abuse of unaccountable power, and I would say that that is what we are seeing today. People sometimes say, “It was a newspaper that exposed phone hacking.” They are right—one newspaper exposed phone hacking—but Lord Leveson is very clear on this: none of the other papers exposed it, and there was almost a conspiracy of silence. He says:

“There were what are now said to be rumours and jokes about the extent to which phone hacking was rife throughout the industry, but (with one sole exception) the press did nothing to investigate itself or to expose conduct which”,

if it had involved anybody else,

“would have been subject to the most intense spotlight that journalists could bring to bear”.

That one exception was Nick Davies from The Guardian, who wrote a story on 9 July 2009 saying that the huge scale of the settlements being paid to some people in respect of phone hacking suggested that a cover-up had taken place. What did the Press Complaints Commission do about it? Did it then think, “Perhaps we should take a second look at this and investigate it”? No, it did not. As Lord Leveson points out, the PCC “condemned the Guardian” for running the story, which is extraordinary. I think that the Leveson report was a good report.

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[Mr Robert Buckland (South Swindon) (Con)]

It is a pleasure to follow the hon. Member for Hammersmith (Mr Slaughter), whose remarks about the carrot and the stick in relation to costs were well made. There is no doubt in my mind that in order to incentivise the major titles and the print media to join a new regulator, there have to be proper incentives—with members enjoying an advantage over non-members in terms of civil actions and not having to pay aggravated damages.

Along with some other Members, I sat on the Joint Committee on privacy and super-injunctions, which issued its report some months ago. In common with my hon. Friend the Member for Camborne and Redruth (George Eustice) and the right hon. Member for Exeter (Mr Bradshaw), I often found myself in a minority on that Committee. There were many divisions and, as we have heard, the final recommendations were the subject of much debate. I found myself in a minority, for example, because of my strong advocacy of a statute of privacy, which I still believe this country needs and which it is incumbent on this Parliament to introduce.

At that stage, I was still thinking carefully about the merits of some form of statutory intervention or underpinning for the print media. I am persuaded now, however, that some form of underpinning is necessary. I do not come to this issue as someone who is an instinctive regulator. I do not support knee-jerk reactions when it comes to the passage of legislation in this House, but I do view the situation now as so serious that only some form of underpinning will do.

I am often accused of being optimistic in my politics to the point of being quixotic, but when it comes to the ability of the major titles of the print media to agree, first, to the principles of Leveson and, secondly, to a mechanism that will deliver them, I am afraid that my optimism leaves me.

Much has been said about the context in which the Leveson inquiry commenced. Some would say that it was based on a very narrow set of circumstances, but that is belied by the wide terms of reference set out at the beginning of the inquiry. We can see from the title that it is “An inquiry into the culture, practices and ethics of the press”, but it is important to remind ourselves in this debate of what the aim of the inquiry was. Part 1 of the terms of reference state that it was to make recommendations

“for a new and more effective policy and regulation regime which supports the integrity and freedom of the press, the plurality of the media and its independence, including from Government, while encouraging the highest ethical and professional standards”.

That part of the terms of reference is extremely important, because the scene was set for a wide-ranging examination of not just telephone hacking or bribery but the entire regulatory regime that has applied so far.

It is agreed in all parts of the House that so-called self-regulation has failed. Indeed, I would go further and say that I agree with Lord Justice Leveson that the Press Complaints Commission was not a regulator as we know it. It was not independent; it did not have powers to summon parties to produce documents or provide sworn evidence; it could not deal with complaints from third parties, or indeed with issues that were not subjects of complaints. Its remit was narrow, and its status was compromised. If we are to embark on a new course, it will be regulation in the proper sense of the word for the very first time.

Those who argue against any form of statutory intervention say that they do not want the work of our free press to be inhibited by statute. Of course I agree with that, but on closer examination, it would be wholly wrong to say that the work of our journalists is in some way uninhibited now. It is already hedged by statute, whether it be rules about reporting when it comes to contempt of court or, for example, provisions of the Police and Criminal Evidence Act 1984 relating to journalistic material that restricts police powers of search. We have existing defamation statutes that allow the defence of responsible journalism that is in the public interest. The Human Rights Act 1998 itself enjoins the courts to have specific regard to the relevant code of conduct when dealing with privacy cases.

[Jacob Rees-Mogg]

Is not the difference that the press has specific protections in law rather than laws that apply, with a specific penal effect, to the press alone? That is a very important difference.

[Mr Buckland]

I take my hon. Friend’s point about the boundaries that are being set. My point, however, is that there is a parallel between existing statute and what I believe is being proposed. I do not view statutory underpinning as somehow creating an entirely new set of constraints within which journalists will have to work. This is not, in my opinion, analogous to the difference between prescribed rights and general liberties that may be defined by their boundaries. My hon. Friend and I often agree about the distinction between different types of law and the tension that exists between them, but I do not believe that we will end up in that situation.

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[Jacob Rees-Mogg (North East Somerset) (Con)]

There has been a lot of praise of Lord Justice Leveson today, and I am afraid that I am going slightly to divert from that, because to some extent prolixity has been mistaken for virtue. Verbosity is possibly part of the problem of his report, which not only goes on for much too long, but fundamentally has missed the bus. I say that because it was not set up to deal with the internet. Indeed, Lord Leveson says on page 169 that

“most blogs are read by very few people. Indeed, most blogs are rarely read as news or factual, but as opinion and must be considered as such.”

However, we discover from Saturday’s Financial Times, a very good source of information and not one that has been involved with any of these problems, that 82% of the UK population receive news online, compared with 54% who receive it from newspapers. So the report is about regulating yesterday rather than dealing with tomorrow; it should make King Canute feel proud, because at least he was going to deal with the tide that was coming in, rather than a tide that had receded some years before.

I am delighted to say that Lord Justice Leveson has used online content himself; it was reported in The Sunday Times that he was caught by a spoof on Wikipedia and said that The Independent was founded by one Brett Straub, who apparently is a Californian student and had no association with the founding of The Independent. So, on the one hand, not much notice is taken of the internet, but, on the other, it has actually been used in putting together this report of almost 2,000 pages.

I listened with great interest to my right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley), who said that we should always be very cautious when people say that the status quo is not an option as self-evidently the status quo is always an option. As a Conservative, I would often like the status quo ante, but I shall not dwell on that point. A good deal of the report accepts the status quo. On page 1496, Lord Justice Leveson states that

“I do not recommend that any change is necessary to the substantive criminal law.”

On page 1508, on the civil law, he says that he does not want to go over the ground of the Defamation Bill, because that has already been dealt with, and on privacy he says:

“It does not appear that legislative intervention will do other than generate…litigation”.

On defining the public interest in law, he states that:

“I do not recommend a statutory definition.”

In the criminal law and the civil law, we will maintain that terrible thing, that awful spectre, the status quo. That is rather encouraging because it means that the law of the land is working and has been doing its job.

[Mr Buckland]

rose—

[Jacob Rees-Mogg]

Of course I will give way to my hon. and learned Friend.

[Mr Buckland]

I am very grateful to my hon. Friend for the elevation he has given me. Does not his point have to be succeeded by a second point? Lord Justice Leveson says that regulation is necessary to cover areas of complaint that do not neatly fit into heads of damage or criminality, such as accuracy, at which the press are not always terribly good.

[Jacob Rees-Mogg]

I am very concerned by my hon. Friend’s suggestion. If we are to legislate for accuracy, I hate to think what that might do to this House or to politicians and the speeches they make in election campaigns.

More important than the fact that the report suggests no changes to the criminal and civil law is the underlying risk to freedom of expression it contains. Let me start with page 1512 and the subject of the possibility of aggravated, exemplary and restitutionary damages. They have been used in some other countries in the world as a means of crushing opposition. When people say things that the Government of the day do not like, the Government bring complaints or actions for damages, sometimes against individual politicians, and bankrupt them. They are then no longer able to criticise the Government. Although it sounds very fair when we are talking about the hard, sad or disgraceful cases we have heard about in this debate, none the less we should allow newspapers to refuse to fit neatly into some regulatory system thought up by a Government-appointed bureaucrat or risk those fundamental freedoms we have been fortunate enough to have for many centuries.

That brings me to the appointment of the first appointment panel. Who is to appoint the panel? We hear that it will be made up of distinguished public servants with experience of senior appointments. We are actually going back to a 1950s view of the establishment. Perhaps I should welcome that, because I might have fitted very nicely into a 1950s vision of the establishment, but I am surprised that this House by and large wishes to see that return. The report suggests that appointment should take place in

“an independent, fair and open way”—

like the appointment of the new Governor of the Bank of England, I am tempted to say, although I thought it was an excellent appointment. It was advertised for the first time, lots of good and qualified people applied and then the Chancellor appointed who he wanted to in the first place. It was a very good appointment, but this reference to a “fair and open way” should make us deeply suspicious.

The key matter—the nub of all this, which brings it all back under state control—is the role of the recognition body. Under Lord Justice Leveson’s proposals, the recognition body is, unfortunately, under the control of a Government appointee. It is a Government quango where the chairman is appointed by a Secretary of State. That is difficult because that recognition body will have the right of first recognition in saying whether a particular set of regulators will be suitable—there could be more than one—and on the second anniversary and every subsequent third anniversary, it will be able to say whether the statutory tests have been met.

Now what if one of those regulatory bodies did not meet the requirements for equality and diversity that Lord Justice Leveson is so keen on? What if it dared to appoint someone from UKIP who might live in Rotherham, for example, to one of its panels to be an investigator? Do we then find that the checking body, Ofcom, would disapprove that body and, by effect if not by immediate law, would be able to choose the detail of the way in which the press was regulated?

There is another concern—that people will seek advice. By their very nature they will go to the recognition body and say, “This is what we propose. Is it all right if we do this? Will you allow us to continue when we come to our next review?” So there is an insidious power in that recognition body which will undermine the freedom of the press and will assert political correctness throughout the land.

[Mr Buckland]

Will my hon. Friend give way?

[Jacob Rees-Mogg]

It is a privilege to give way.

[Mr Buckland]

It is an attractive and seductive argument that my hon. Friend sets out, but in many other walks of life—for example, my profession, the medical profession and the judiciary—there are over-arching bodies of statute that do the job of verification that he is so concerned about. They are independent. Why should not the proposed press regulatory body work?

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[Jacob Rees-Mogg]

I am not particularly concerned that my doctor is an agent of the state who is going to take out my tonsils because he thinks that that may progress political correctness in some way. A doctor is completely and utterly different from a journalist writing freely, criticising boldly something that has become the perceived wisdom of the nation at large. That is a liberty that should be precious to us. It is an absolute one that we have in the House.

Is it not interesting that we give ourselves that absolute liberty—that absolute liberty under the Bill of Rights that nothing said in this House can be challenged in any court or tribunal? The press are an aid and a boost to that of our fellow subjects to do the same—to question the wisdom of the great and the good, of those fine panjandrums who are going to form the appointments panel.

Finally, I question the naiveté of Lord Justice Leveson, who says that there is no foundation in the suggestion that it is easier to amend an existing Act than to bring in a new one. Anybody who knows how this place works or who looks at the history of legislation coming through will be aware of this point. Let us take, for example, the Great Reform Bills. In 1832 there were riots to get reform through; in 1867 it was a much simpler process. Every time an Act is put on to the statute book it is simpler to develop it further and move it forward. That ignores the ability to use statutory instruments, which are a part of most legislation, if not all of recent years, and statutory instruments can be put through on a negative resolution of the House and hardly further debated at all.

By creating statutory control we will find that the recognition body has extremely large powers to intervene and enforce its will by stealth, and that legislation will be amendable in future, to the great risk of our liberties.

Oral Answers to Questions

Jacob Rees-Mogg Excerpts

Tuesday 13th November 2012 Commons Chamber

[Jeremy Wright]

I will have to check to be certain, but I think that the changes made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have not yet come into force. However, my hon. Friend puts his finger on the opportunity for us to have available not only more hours spent under curfew but curfew orders that last for a longer time. In addition to new technology that will enable us better to monitor offenders, this can be a very effective means of keeping track of those who have committed offences.

[Jacob Rees-Mogg (North East Somerset) (Con)]

Does the Lord Chancellor recall that in the reign of Henry VIII it was made high treason to take an appeal outside this kingdom? Has not the time come for this Parliament once more to legislate to prohibit appeals to foreign courts and to prohibit the judgments of foreign courts leading our judiciary?

[Chris Grayling]

I know that my hon. Friend has strong views on these matters. While I may not agree with every word he says, he will know that I have some sympathy with his frustration about international courts and the rulings that they make. That is why I am very clear that, in relation to the European Court of Human Rights, further reform is necessary.

Prisons (Property) Bill

Jacob Rees-Mogg Excerpts

Friday 14th September 2012 Commons Chamber

[Jacob Rees-Mogg (North East Somerset) (Con)]

I am extremely grateful to my hon. Friend for giving way so early on. How will the Bill work in relation to illegal items, which it would be unlawful for an ordinary member of the public to own? We are not saying, are we, that we give guns back to prisoners at the end of their sentences and then arrest them for possessing a gun? Perhaps my hon. Friend could explain.

[Stuart Andrew]

No, my hon. Friend is quite right. We would not be giving guns back; they would, of course, be given to the police to deal with. However, there will be anomalies along the way, and I am sure that many hon. Members will help me to ensure that the Bill is as tight as possible on such issues.

--- Later in debate ---

[Jacob Rees-Mogg]

What is the current practice when items are not claimed on prisoners’ release? If they have forgotten about their mobile telephones when they leave, can the items be destroyed at that point, or must they kept ad infinitum regardless?

[Stuart Andrew]

I understand that many thousands of items are currently being held in storage that have not been claimed. I do not know whether there is a time limit—perhaps I ought to find out and write to my hon. Friend with some clarification—but I gather that at least six months’ worth of items are in the prison system.

When I visited the prison in Leeds, I saw that every bit of space was being used. The prison gates have towers a bit like those at Windsor castle but, of course, nowhere near as glamorous, and even the turrets are being used for storage. The staff are having to find every corner that they can, which is frustrating for them, and, as I said earlier, it is having a knock-on effect on morale.

[Jacob Rees-Mogg]

That raises an interesting point. Given that all these things are being stored in any space that can be found, and given that they are being stored in prisons, what happens if they are stolen? That must be quite a risk with all those criminals about. Are the Government liable for the replacement of stolen items, and does the cost fall on the Government?

[Stuart Andrew]

I believe that the items are destroyed after 12 months. As for their being stolen, my hon. Friend tests my knowledge. I did not ask prison officers that question, but perhaps I will go back to Leeds prison and ask for an answer. Again, I shall be happy to give my hon. Friend some clarification.

I hope all this demonstrates that although the Bill is not particularly extensive it is long overdue. It is intended to reverse an outrageous and perverse position by creating a statutory power for governors to destroy or dispose of unauthorised property. It is also retrospective in nature in that it enables the destruction, or other disposal, of certain items of property that were seized prior to the commencement of its powers and which remain unclaimed six months after commencement. This measure applies to cameras, sound-recording devices and electronic communication devices, including mobile phones, and their component parts. It is illegal to take all those items into prison, and they are items that cause particular concerns with prison security.

It is considered that this retrospective application is fair and in the public interest. It is a limited power, and will finally enable the Prison Service to deal with the 41,000 mobile phones that are currently held in storage. During the six-month period I have just mentioned, prisoners will be able to make representations against an item’s destruction. All such representations will be considered, but it is right that the power is given so we can deal with this problem.

--- Later in debate ---

[Philip Davies]

If my hon. Friend is going to be so kind in all her interventions, I will encourage her to make even lengthier ones in future. It seems from the figures—I am only glancing at them—that at Hollesley Bay just one seizure of drugs was made.

We need to bear in mind two separate things. In the case of prisons with very high levels of seizure, one might argue that it is because they have a bigger problem than other prisons, but it is possibly because the authorities are much better at finding these things and more assiduous in dealing with the problem. The fact that my hon. Friend’s prison had only one seizure may indicate that they have got a grip of the problem there and it is not as big as elsewhere; equally, it could be because they are not as assiduous in finding these things. From my experience, which she was kind enough to mention, I would be surprised if that prison had only one example of drugs being in somebody’s cell that should not be there, but that is just a hunch and I am probably completely wrong.

[Jacob Rees-Mogg]

Might my hon. Friend, without reading out the whole list, give us some of the highlights? Does he have any idea of which prisons have a particularly bad problem, with the very highest number of seizures, or which ones have figures that are suspiciously low because they are known to be high-security prisons with particularly difficult prisoners inside them? Are there any lessons that we can draw from across the prison estate as a whole?

[Philip Davies]

I am grateful to my hon. Friend. Thankfully, he made a long enough intervention for me to quickly brush through the figures to see whether I could find any particular highlights or lowlights. The figures that instantly spring to mind as regards mobile phone seizures are 265 at Altcourse prison, which I cannot say I am familiar with, and 231 at Pentonville, which I am much more familiar with. Those seem to be the two highest figures. Altcourse also had a rather high number of drugs seizures. Several prisons have single figures for mobile phones. The lowest that I can see is Blantyre House, which has just one, as do Low Newton, Morton Hall and Send, while some have two. There is a big discrepancy between 230-odd and just one or two. I can only reiterate that it is difficult to tell which prisons we should be commending and which we should not.

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[Jacob Rees-Mogg]

Perhaps the Prison Service could also offer an answering service, so that when the mobiles ring, messages can be taken and passed on to the inmates.

[Philip Davies]

That may already be happening. Something that I have learned in my short time in Parliament is that all the things that one thinks could not possibly be happening are almost certainly happening somewhere. It would not be the greatest of surprises if that were happening. Even if it is not, perhaps on the back of my hon. Friend’s suggestion, it will start happening across the country. Any prison that refuses to take such messages will probably be taken to the European Court of Human Rights.

The search teams targeted 14 prisons across the north-west of England, so only 14 prisons generated that amount of contraband, including Liverpool, Preston, Garth, Kirkham, Risley, Haverigg and Styal women’s prison. The article goes on to say:

“The haul of hooch, made from fruit, bread, sugar and water, included 371 pints found before Christmas.”

Given that we know that there is a problem of that scale, we ought be doing more to tackle it. The Bill would be a useful tool because it would ensure that people know that if something is confiscated, it will not be returned to them.

I would like to emphasise what these things are used for. People usually use mobile phones to carry on criminal activity while they are in prison. The trade in drugs and other illegal activities continue in prison. We are, in effect, saying to people, “It is absolutely fine for you to carry on your illegal, criminal activity in prison. If we find your phone, don’t worry too much, because we will hand it back to you in the end with all the phone numbers still stored on it. You can have back the details of all your contacts and all the clients that you have been supplying to over recent years. We will give all that back to you, saved on the SIM card. That’s no problem.” How on earth are we to tackle drug crime if we are handing back to drug dealers their full contact lists on their mobile phones as soon as they leave prison? It honestly could not be made up, but that is what is happening.

My hon. Friend the Member for Pudsey did not touch a great deal on how contraband is found, whether prisons need to get better at searching cells or whether the current system works well. My hon. Friend the Member for Suffolk Coastal (Dr Coffey) kindly said that I visit a lot of prisons, and indeed I have visited prisons not just in the UK, although I have visited plenty of those, but abroad. To be fair, the problem of contraband exists in prisons around the world. It is not just a UK problem. It exists even in some of the most rigorous prison regimes in the world. I commend to my hon. Friend the Minister a visit to the Florida state prison to see what a prison system is really like, but even Florida, with its much more robust approach—and much cheaper, but I will not get sidetracked down that line—has the same problem.

I do not know whether this is useful, but I visited a prison in Denmark, a notoriously liberal regime that hands condoms out to people who visit prisoners, locks them in a room for an hour and lets them do what they want. I do not commend that approach to the Minister. Visitors do not go through any search mechanism at all, but the prisoner is strip-searched both before and after they meet a visitor to ensure that no material is passed from one to another. That may be a suggestion for him to explore, as Denmark thinks it helps to prevent contraband material from getting into prisons in the first place.

I absolutely support my hon. Friend the Member for Pudsey in his Bill, which makes sense to me and, I believe, to most people. It cannot be right that prisoners’ ill-gotten gains are returned to them when they should not have had them in the first place. We have had far too much focus in this country on the interests and rights of prisoners, and the Bill is just one way, albeit a small way, of redressing the balance. It will probably affect a small number of people, the vast majority of whom have committed crimes so serious that they have been sent to prison. That is no mean feat in itself in this country, because it takes a pretty good effort for someone to get themselves into prison these days. They have to be either an incredibly serious offender or a very persistent one. On top of that, the people in question will be those found to be in possession of illegal items while in prison, so they are the worst of the worst in the criminal fraternity. If their spoils can be sold for the greater good to raise money for good causes or victims of crime, as my hon. Friend suggested, or can be destroyed in the interests of safety and security, I am all for it.

[Jacob Rees-Mogg]

Does my hon. Friend agree that if those things were sold, the best cause would be to cut taxes for the hard-pressed British people?

[Philip Davies]

My hon. Friend is absolutely right. The Government certainly should be cutting taxes, but I fear that if we were to get into a ramble about the rate of taxation in this country you might rule me out of order, Mr Deputy Speaker. As you know, I certainly do not want to stray from the narrow subject of the Bill.

I commend my hon. Friend the Member for Pudsey for introducing the Bill, which is important and long overdue. Most of my constituents would think that these measures were already in place. I hope that it makes swift progress through this House and the other place, and I am delighted to support it.

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[Mr Buckland]

My hon. Friend is right to raise a potential issue about the distinction between remand prisoners and those who have been dealt with and convicted. It is important that we uphold the rights of remand prisoners. They have not been convicted of an offence, but are awaiting the resolution of the allegation against them, so their rights have to be respected. Nevertheless, withholding the right to bail has its consequences. When people are held on remand in custody, they must surrender their personal effects. The authorities will collect those items in the custody area of the court, bag them up, and record and retain them in the normal way.

The Bill deals with the position of unauthorised articles where there is no reasonable explanation or excuse for them to be held.

[Jacob Rees-Mogg]

I am interested in what my hon. Friend is saying about remand prisoners. Would he be concerned if the law allowed for the destruction of something found in the possession of a remand prisoner that was legal but unauthorised, in the event that he was then found not guilty?

[Mr Buckland]

That is the point, and a very important one too, and yes it would concern me. Therefore, the question of the destruction of an item properly taken from a remand prisoner should not be resolved until the status of that remand prisoner has been dealt with by the court.

--- Later in debate ---

[Jacob Rees-Mogg (North East Somerset) (Con)]

I add my congratulations to my hon. Friend the Member for Pudsey (Stuart Andrew) on doing so well in the lottery to get a private Member’s Bill so high up the list; perhaps he should participate in other lotteries and then have millions to spend on good causes.

I also want to congratulate the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright), on his promotion. It is a pleasure to speak in a debate to which I know he will reply. I am grateful to him for asking me to speak on Disraeli earlier this year. It was a great pleasure, but I shall not talk about the late Earl of Beaconsfield today.

With this Bill, I want to go back to first principles. As a House, we should always be careful when we do anything that undermines the rights of property. The foundation of our state is the right of property—the right of people to enjoy the property they legitimately own. We can go back to the Magna Carta of 1215 when it comes to the right of people not to have their property taken away without proper process.

It is very easy, in looking at prisoners, to say that they have given up all their rights, so they do not have this right either. It is a very tempting argument and in some respects it is true. It is justly part of the punishment that some of prisoners’ rights are taken away. In my view, it is right for them to lose the ability to vote in general elections. It is a right that they have lost, by the will of Parliament, and it should remain lost to them. It gets more complicated, however, when it comes to things that they are sometimes allowed to have and sometimes not allowed to have. What we do not want is a prison regime that is fundamentally arbitrary, in which a prison governor can decide that he will allow a prisoner to have a mobile telephone at one moment, but then change his mind the next moment because the right circumstances have not been met. It is, I believe, the case that many people in prison are not as educationally advanced as many people in the House of Commons, so they might not fully understand the regulations that apply to them or be able to cope with the differentiations that might apply.

As a starting-point—here I agree with my hon. Friend the Member for Gainsborough (Mr Leigh)—I believe that we should always be enormously careful about extending the powers of the state to do something, and we should be particularly careful where there is cross-party support. In that case, there is often a popular view that it is right to do something and people find it very hard to object to it, but that is because they have forgotten the first principle that they should have borne in mind at the beginning of the process. My starting point, then, is general suspicion of extending the powers of the state and general suspicion of undermining the rights of property.

There is, of course, an exception. Going right back to the Magna Carta again, people’s property can be taken away if a proper process is involved, if the system allows it to be taken away and if the approach is fundamentally just and proportionate. To quote the Magna Carta, it says that “no free man” shall have certain penalties applied—and, of course, by their very definition, prisoners are not free men; that is the whole point of them being in prison. The definition of a free man in the Magna Carta is, of course, completely separate from our modern understanding, but I think a brief foray into the feudal system would be unhelpful on this occasion. Here, it is perhaps more interesting to look at the language literally rather than to apply a mediaeval interpretation of “a free man”. The limitation on the protection of property is that it is the protection of the property of a free man, and for many centuries the state has taken upon itself the right—to some extent, the obligation—to take away property from people as a form of penalty for their misbehaviour.

We then come to the question of whether the penalty is appropriate and suitable or unduly harsh in relation to what the prisoner has done. There are some categories where it will be incredibly easy to determine that. As we have already established, something that is a criminal item of itself can be taken by the police—although that is a different procedure—and destroyed by them. Fortunately, it will not be the case that a prisoner who is found with a stash of heroin on him will get it back at the end of his sentence, only to be arrested by the police and have it taken off him again. That would create a bureaucratic muddle. Of course, it would not necessarily be heroin—it could be any number of other illegal substances—but because some Members probably know more about illegal substances than I do, I shall stick to heroin for the time being.

Then there is the question of armaments. Some of us remember the break-out from Brixton prison when Lord Baker, I believe, was Home Secretary. Some IRA prisoners smuggled in a gun in the false bottom of a shoe. Had it been found, as it should have been, it would have been confiscated and undoubtedly not returned. However, there are grey areas. What if a prisoner has a replica gun? Replicas may be legal in the outside world, but they are obviously not encouraged in prison because they cause a certain amount of confusion, especially if they are good replicas. Prison officers would fear that a good replica might be a real gun. You would have to be a brave soul—and I know that you are a brave soul, Mr Deputy Speaker—to be certain that a replica gun was genuinely a replica, and would not actually fire. Although replica guns can currently be confiscated, it seems to me quite sensible to destroy them as well.

[Mr Nuttall]

Will my hon. Friend give way?

[Jacob Rees-Mogg]

It would be an honour.

[Mr Nuttall]

I am not sure that it is right for them to be destroyed. There are many reasons for which guns can be legally held in this country. Surely if a gun were capable of being used, it could be sold and the money sent to the victims of crime.

[Jacob Rees-Mogg]

I thought that a replica gun might not be of enormous value, and that it might therefore be easier to destroy it. Let us, however, take the example of a set of 18th-century duelling pistols. I do not know whether those crop up frequently in prisons, but they might. They are not very effective, the gunpowder that is required for them has got a bit damp and the flint does not work perfectly, so they are not necessarily enormously dangerous items, and they are legal to hold in the outside world. My hon. Friend is right, however: if these were found—

[Dr Thérèse Coffey]

Will my hon. Friend give way?

[Jacob Rees-Mogg]

Of course.

[Dr Coffey]

I was just thinking about where the proceeds of the sale could go. Currently, when prisoners’ property is sold after 12 months, the money goes to Nacro. It may not be going to victims, but at least it helps to ensure that people try not to reoffend.

[Jacob Rees-Mogg]

When it comes to issues of this kind, I am the ultimate Treasury stooge. I am very much against hypothecation of any kind, ever. It is a fundamentally bad principle for a Government to have. All spending should come out of the Consolidated Fund, and all money should go into the Consolidated Fund. That is why it is consolidated, after all. If things are put into specific pots, people sometimes find that they have more money in a pot than is actually necessary. If items are confiscated and then sold, the money should go to the Treasury.

There is another reason, which is always important. You may be aware, Mr Deputy Speaker, that some local authorities have been accused of ramping up parking fines just so that they have more money to spend on other things. A process that falls hard on the subject is used to raise revenue in a way that was never intended. If the money went to the prison, or to certain areas within the prison, or to a cause that the governor particularly liked, it might give governors a false incentive to be particularly harsh in deciding what to confiscate. Such an incentive would be removed altogether if it were ensured that the money went into the Consolidated Fund. As I have said, in this respect I am very much the Treasury stooge.

[Philip Davies]

Has it occurred to my hon. Friend that it may be difficult to identify what is contraband in a prison cell and what is not? For example, a member of the public may well go into a prison cell, observe the prisoner enjoying Sky TV and assume that it must be contraband—that the prisoner must have smuggled Sky TV in—only to find that the prison authorities have actually allowed 4,070 prisoners to have Sky TV in their cells.

[Jacob Rees-Mogg]

As always, my hon. Friend comes up with a shocking statistic, but the situation he described was, perhaps, even more worrying: members of the public being able to wander into prisons and look into prisoners’ cells. If prisons are really like that, we face a more fundamental problem. Prisons should be good at keeping people in, but they also ought to keep some people out, and I would have thought that members of the general public should not be waltzing in and out of prisons. Having said that, I agree with my hon. Friend’s general point.

The nub of my concern, however, is that there needs to be clarity, because we do not want to have circumstances in which, for instance, a new governor is appointed and he decides to have a new rule on what is, and what is not, allowed. That would lead to prisoners being uncertain about the rules. The new governor may think Sky TV ought to be banned. He may be left-wing and not like Mr Murdoch and therefore think anything to do with him should be banned, so he may decide to remove Sky TV and only allow people to watch the BBC. If that were the case, that would be a very fair uncertainty for the prisoner, however.

My hon. Friend and I hold many similar views, but although I, too, believe prison ought to be a reasonably robust experience, I do not go all the way with him and say prisoners should be denied all rights. They ought to have a basic understanding of the general rule of law that allows them to live by a code that is set and certain, so they know from day to day what the situation will be and what they will be allowed to do.

I am keen to follow on from a point made by my hon. Friend the Member for South Swindon (Mr Buckland). I should say first, however, that North East Somerset is looking forward to hearing from him this evening, and I hope he will speak for a little longer in North East Somerset because people have paid for their supper and they shall want a good after-dinner speech—and I am sure they will get one. He talked about remand, and the remand issue is fundamental to my understanding of how our criminal justice system works. People are innocent until proved guilty. The state has decided to remand them because it is nervous that they may escape or it deems them to be dangerous. The state is often wrong about their guilt, however, and people on remand frequently turn out to be innocent of any offence, and are sometimes able to leave court without a stain on their character. It is important to remember that, and to treat people on remand differently. I am not sure that the Bill does that at present. I hope it will be amended in Committee to ensure that there is no injustice to those on remand.

It is a fundamental principle of our justice system that people are innocent until proven guilty. That is often forgotten in respect of people on remand. Because they are in prison, the establishment deems they must have done something wrong. That is deeply unsatisfactory. They are as innocent as any other citizen in the land until the court has ruled and found them guilty. Therefore, to deny them things, or to destroy things that they could legitimately hold if they had not been remanded, is unreasonable. If they are not guilty—and many of them will not be guilty—they should not in normal circumstances be denied the right to use, or to have, a mobile telephone. Just because they have had the misfortune to be charged with an offence does not mean they should be punished for breaching a regulation that in ordinary life would never fall upon them.

I have great confidence in the police, but we know from events earlier this week that the police are not invariably impartial in the way they charge people or in the information they put forward. We cannot put so much trust in the state that we allow unreasonable punishments to fall on those on remand beyond that which they have already suffered—their loss of liberty. They are innocent until they have been through a proper court process.

I want to associate myself with some comments made by my hon. Friend the Member for Shipley (Philip Davies). He discussed at modest length—indeed, extreme brevity by his standards—the question of how things get into prison in the first place. He kept on talking about nets being put up. I thought the prisoners might be practising cricket, but it turns out that is not the case; the nets are there to catch contraband being thrown over. We must surely have a Prison Service that is more effective in stopping items getting into prison in the first place, whether they are mobile phones, drugs or other items that are not allowed.

How would that be done? I listened carefully to the shadow Secretary of State, who said quite rightly that some of the items might cost money. However—this is an argument one must treat with care—this might be one of those occasions when we could spend to save, because stopping such items getting in could reduce the drug problem in prisons and the ability to run a criminal enterprise, which one hears about. There is the image from “The Italian Job” in which a Mr Big character, played rather resplendently by Noël Coward, is still running his criminal enterprise from prison, and standing regularly for the national anthem, as all true-born UK subjects ought always to do. The idea that a criminal gang can still be run from prison by a Mr Big is one that I thought had passed out, but we find it is happening because illicit mobile phones have been smuggled in. Therefore, if we spent some money trying to stop these items getting into prisons in the first place, we might reduce the overall level of crime and so bring savings to the whole country. We would be cutting off some of the top people organising it.

I cannot finish my brief comments without talking about some of the items that might be taken into prison and can now sensibly be confiscated, rather than stored. One always expects that the first thing smuggled into prison is a cake, because a file can always be hidden in it so that the prisoner can eat the cake and use the file to saw through the bars. It would be a great relief to the cake makers of Britain that their efforts will no longer go to waste, because the prison officers who confiscate a cake because it has a file in it will now be able to eat it, rather than having to store it until the end of the sentence, by which time one has a nasty feeling the cake may have become rather stale, and therefore there would have been no point in preserving it and the file would not have been put to use to aid escape.

There is a serious point in that. Innocent items can be used for illicit activities. Things could be smuggled into prison that look completely innocuous by themselves but could be used as drugs paraphernalia or for the production of alcohol. We do not want to have a system in which those things are returned so that they can be used again, either inside or outside prison. We want to ensure that items that can be used illicitly, even if they look innocent, can be taken away and destroyed by the prison authorities.

When we look at the proposals overall, I think that we can be comfortable that there is the reasonable balance between the rights of property and the punishment of the individuals. I think that it is reasonable to say that the individuals have sacrificed sufficient of their liberty that goods that they should not possess can be taken away and destroyed. We have to be confident that this will be a fair, rational and non-arbitrary process. I note that the Bill provides for the Ministry to give guidance that prison governors would have to follow, which is very important, because this is not an area for localism. It would be very unfair on prisoners who might move prison or have a change of governor to find that the regime had suddenly ended and become more arbitrary.

The Bill does not tackle the concern about things getting into prison in the first place and, in that context, this House and the Ministry should not think that, by passing an Act of Parliament, we have solved the problem, because the truth will be something like the reverse. This is merely an indication of a deeper, underlying malaise that is being tackled; it does not deal with the fundamental problem that a little netting will not solve. I will not talk about body searches. I can think only that people might take in little pieces of gold in their false teeth to be used as currency, but other things can be done, and one does not wish to dwell on them in this House, or indeed anywhere else for that matter.

It is important for us to recognise that the Bill is a palliative rather than a cure; it tries to deal with a problem that needs a separate answer. However, on balance it is a decent, sensible and prudent piece of legislation, which will go well with the legislation that we will be considering to enable the blocking of mobile telephone signals in prisons.

That combination of legislation may enable us to sleep a little more securely in our beds, knowing that malefactors are safely locked up, incarcerated and put away and that they cannot come out easily, or get their minions to threaten us, because they do not have the necessary communications. We will know that the drugs problem will be reduced because not only the drugs themselves but the associated paraphernalia will be taken away. Furthermore, prisoners will not have their cakes, either.