Terrorist Offenders (Restriction of Early Release) Bill

[Dame Eleanor Laing in the Chair]

Clause 1

Eligibility for release on licence of terrorist prisoners: England and Wales

I beg to move amendment 3, page 1, line 8, after “force”, insert

“and notwithstanding the Human Rights Act 1998”

With this it will be convenient to consider:

Amendment 4, in page 1, line 12, after “force”, insert

“and notwithstanding the Human Rights Act 1998”

Amendment 1, page 2, line 34, leave out “two-thirds” and insert “nine-tenths”.

Amendment 2, page 2, line 37, leave out “two-thirds” and insert “nine-tenths”.

Clauses 1 and 2 stand part.

Amendment 5, in clause 3, page 4, line 2, after “force”, insert

“and notwithstanding the Human Rights Act 1998”.

Amendment 6, page 4, line 6, after “force”, insert

“and notwithstanding the Human Rights Act 1998”.

I have already canvassed some parts of what I am about to say, but there is more to say, for a very sound reason. Parliament is full of opinions and Ministers are full of opinions. Two Ministers are sitting on the Front Bench at the moment, no doubt debating the issue before the Committee, but their opinions are not the law, and nor are those of leading counsel, whether senior Treasury counsel or those involved in academic discussion. I say that really seriously. I have been practising the law since 1967 and I know a little about how the law is interpreted. We saw the Gina Miller case the other day. How many times were we told that there was absolutely no question but that the Government were right in their interpretation? I served as the shadow Attorney General and saw the whole of the Iraq and Peter Goldsmith exercise. We were told over and again in the House this, that and the other about interpretation—“This is what will happen. This is the way it will go.” That is no way to make decisions on matters of this kind of critical importance.

There are occasions on which the question of interpretation may merely be about a modification of policy; this is actually about saving human life. I repeat that: saving human life. Where it is possible for the House to ensure that human life cannot be unreasonably and wilfully disposed of by people who are intent on murdering for no reason at all, we need to take seriously the question whether or not we can exclude the courts —because this is Parliament, not the judiciary—from making wrong decisions when matters come before them.

I heard with interest the Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and the various cases he mentioned, and I have just heard the Minister refer to the Uttley case. There is also the Hogben case, which was of course in 1985, before the Human Rights Act 1998. Reference was also made to the del Río Prada case. As a matter of fact, the legislation does not depend on an interpretation of those individual cases by way of precedent, and that is not what we should be worried about; we should be thinking about the purpose and scope of the Bill and its objective, which is to do everything that we can to ensure that human life and public safety come first. I do not want this to become an argument about the interpretation of law, which is why I tabled amendment 3 to clause 1.

On the subject of opinions, does my hon. Friend intend to test the opinion of the Committee, or merely the opinion of the Minister?

That is an extremely good question on which I have already given an indication. Being a realist, I know perfectly well that this is not a Bill to which an amendment is going to be passed—certainly not today—but I did say that the House of Lords, which is where the Bill is going, is full of lawyers, some of whom I will disagree with and have disagreed with for as many years as I have been in the House, but there are others who will take a different view.

I am interested to hear the views of the House of Lords on the question of my proposal to amend clause 1. The wording of clause 1 currently refers to an offence “within subsection (2)” and a sentence imposed

“whether before or after this section comes into force”,

at which point I propose to insert the words

“and notwithstanding the Human Rights Act 1998”.

The effect of that would be to put a complete bar on the use of the Human Rights Act, by interpretation of the courts, in any attempt, whether it is regarded as misguided or is a matter of culture—there is currently a load of culture in the courts relating to human rights questions that have built up over the whole of my lifetime in the law.

I am deeply concerned that we could allow legislation to go through that could be interpreted in a way that would result in human life being lost and public safety being infringed. That is my concern. [Interruption.] I see the Minister looking at me either apprehensively or with anticipation; I am not sure which it is and I do not really care. What I am saying is that I want certainty. I know that if the words “notwithstanding the Human Rights Act” are brought into the Bill, the effect will be to exclude completely, for reasons that I am about to give, any attempt by the courts to modify the effect that the Bill otherwise would have.

I thank the hon. Member for giving way, despite my non-lawyer background. I am of course interested in what he says, and have been listening extremely carefully, as he has seen. How does he think his amendment would operate? In particular, does he think it would in any way disapply our ECHR treaty obligations? Even if we passed his notwithstanding amendment, could applicants not still go directly to the European Court in Strasbourg? We cannot disapply that route through this amendment.

I notice that the Minister is reading very carefully from the notes with which he has been provided, and I agree with the sentiment behind them, but I am putting the case in a different way. We are talking about serious questions of human life, and every step should be taken to preserve it. I was originally minded to use the amendment to exclude the European convention on human rights, too. I describe amendment 3 as a probing amendment, but I want proper consideration of it, not just someone saying, “I don’t think the wording would achieve the total effect that the hon. Gentleman would wish it to.”

The risk to human life is serious; we have to take every step to ensure no repetition of the instances of murder and terrorism that we have witnessed, and which, in recent times, from Lee Rigby onwards, have become more and more prevalent. We know that people are prepared to take such steps; it may be that some of them are mentally disturbed. Perhaps people do not think that these things will happen again, but as I said in debate on another counter-terrorism Bill four or five years ago, the question is not whether we have another Lee Rigby, but when. We have had one after another, at regular intervals. They are becoming more and more imminent, and more and more serious. I doubt whether this Bill, however worthy its objectives, will deal with the problem in the manner in which I am setting out and which is necessary.

There is no doubt that Parliament has the power to legislate retrospectively. I want to make that entirely clear. If the words are clear and express, whatever judges may wish to interpret is displaced by the wording that Parliament actually utters. My authority for this—there are plenty of authorities, but I will give the Committee this one—are the words of Willes J in Phillips v. Eyre. Those words boil down to this: the courts will only ascribe retrospective force to new laws affecting rights if by

“express words or necessary implication it appears that such was the intention of the legislature”.

That is supported by page 56 of Bradley and Ewing’s “Constitutional and Administrative Law”, which is the greatest constitutional authority that we have in this country and is into its 15th edition. Bradley and Ewing are quite clear that if the words are express in particular, and/or by necessary implication it appears that such was the intention of the legislature, there is no argument. The courts, quite rightly, will interpret that law in the light of those express words. This is why I propose the insertion of the words

“and notwithstanding the Human Rights Act 1998”.

We could add “or the European convention on human rights”, for that matter—to answer the Minister’s point directly. I do not mind. I am not doing this as an exercise in academic analysis; I am doing it because I do not want people to be killed and I do not want people to be released in circumstances where they might kill people. There is too much at stake.

For practical purposes, I believe that we need to have legislative clarity and the avoidance of doubt in relation to the power of Parliament to legislate retrospectively. I am not interested in the possible interpretation of leading counsel, academics, bloggers, senior Treasury counsel or, for that matter—with the greatest respect, and I really mean that—either the Chair of the Justice Committee or the Lord Chancellor himself. In this House, we make decisions about the legislation that we are going to pass. On the basis of what Willes J said in Phillips v. Eyre—and other cases—it is crystal clear that by using words that are explicit and express, we can have the effect of ensuring that human life is saved, and that is the main intention behind my amendment.