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Lord Wallace of Tankerness
That this House takes note of the challenges facing the culture of human rights and civil liberties in the United Kingdom.
Lord Wallace of Tankerness (LD)
My Lords, for decades, as a Liberal and Liberal Democrat candidate and MP, I supported campaigns to incorporate the European Convention on Human Rights into our domestic law. “Bringing Rights Home” was our call, and so understandably I welcomed the passing of the Human Rights Act 1998. However, it never occurred to me during all these years of campaigning that I would be the first government Minister in the United Kingdom to be on the wrong end of a decision under that Act—yet that is what happened on 11 November 1999.
As Justice Minister in the newly established Scottish Government, I had inherited a sheriff court administration which relied on temporary sheriffs to keep the system in working order. However, the Scottish Appeal Court ruled that because the Lord Advocate was involved both in their reappointment, or not, and was also head of the Public Prosecution Service in Scotland, temporary sheriffs could not be regarded as sufficiently independent of the Executive that an accused might have a fair hearing before an “independent and impartial tribunal”. As a result, I was forced to suspend every temporary sheriff in Scotland overnight.
I am not going to pretend: on that day I would much rather that the case had been won. Losing put significant pressure on resources and made for a time the operation of our sheriff courts more difficult. But here is the thing: in the cold light of day, the court was right. What was happening was wrong and, because of the Human Rights Act, it was put right. For all the difficulties this decision caused me, officials and, indeed, the public, I would rather live in a country were there is such a human rights check over decisions and actions of Ministers and the Executive than in a country where Ministers and the Executive can ride roughshod over basic human rights. This, I believe, shows the value of the Human Rights Act. As Liberal Democrats, we on these Benches are instinctively suspicious of government. We believe that the state has the power to improve people’s lives—but, equally, the power to damage them. Such power should not operate in a vacuum. There must be a check on the ability of the state to wield its power, even when its actions are carried out with the best of intentions, and there must be a check to protect individual citizens against the arbitrary use of state power.
This debate is about the challenges facing the culture of human rights and civil liberties in our country. My experiences as a Minister both in Scotland and in the coalition Government have given me some understanding of those challenges and the difficulties of balancing interests that sometimes compete with human rights and civil liberties, not least the need to keep the public safe. I do not pretend that it is always easy. The appalling events in Tunisia last Friday and our response to them have once again thrown into sharp focus the challenge of balancing liberty and security in an age when terrorism stalks the globe. The Prime Minister rightly argues that, armed with our values of justice, democracy, liberty and tolerance, we will prevail over hateful intolerance and its evil manifestations. But the challenge is to ensure that in doing so we do not undermine the very values that we cherish and seek to uphold.
The Home Secretary said in the House of Commons last week—it is pleasant to be able to agree with her—that,
“security and privacy are not … a zero-sum game”.—[Official Report, Commons, 25/6/15; col. 1085.]
It is incumbent on the Government to consider issues of privacy and liberty when promoting security and on those on our Benches to reflect the need for this balance and ensure that when we are promoting liberty and privacy we also take account of the interests of security.
I am sure that in this debate we will hear contributions about the communications data Bill—the so-called “snoopers’ charter”. All I shall say on this subject is that I can assure the Government that if they seek to introduce intrusive new laws, rhetoric and assertion by Ministers will not be a substitute for hard evidence that such measures are necessary and proportionate, not least given the recently published report by David Anderson QC, which found the operational case for a number of the proposals far from persuasive.
The ability to challenge the Government is a core part of our liberty and democracy, and one which we must seek to uphold. The European Convention on Human Rights may have been born in the aftermath of the war against fascism and in the face of the spread of communism, but it took the 1998 Act to allow people in Britain to vindicate their convention rights in British courts. I believe that that is something we should cherish and uphold. Let us be clear: when I say that the Human Rights Act gives us the ability to challenge the state, I do not mean in some sort of philosophical debate; I mean on ordinary, day-to-day issues that people often take for granted.
The right to life is not just about life being protected by the state. The right has ensured justice for the families of victims of domestic violence and the families of hospital patients who were not properly supervised and who then tragically took their own lives. The prohibition on torture has ensured that the use of restraint on an older woman in hospital was able to be challenged and that authorities are accountable for failing to protect children who are being abused. The right to liberty and security has ensured that people with mental health problems are not unlawfully detained.
The right to a fair trial or hearing was used by a mother who had suffered mental health problems and had her child taken into care. The court found that the council’s attempts to delay her re-establishing contact with her child and its failure to notify her that the child was already placed with an adoptive family constituted a breach of her right to a fair hearing. The right to respect for private and family life has often been lamented in the press as a block to deporting foreign criminals. But this right helped a couple who had been married for 59 years to live in the same nursing home when their local authority threatened to move one of them to a nursing home too far away for the other to visit. It also secured proper support from a local authority for a child with Down’s syndrome.
Freedom of expression was perhaps most famously protected by the European Court of Human Rights reversing a unanimous decision of the Judicial Committee of your Lordships’ House in the early 1970s and thus allowing the Sunday Times to expose the thalidomide scandal and pave the way for compensation for its victims and their families. Freedom of assembly and association has protected the rights of people to join a trade union and engage in union-related activities. The right to marry has ensured that the needs of transgender people are accommodated by requiring the Government to issue a new birth certificate. The prohibition on discrimination ensured the right of unmarried couples to adopt and has been used in numerous cases to protect disabled people.
I cite these cases because they are examples of what human rights mean in practice—what our convention rights allow us to protect when the state overreaches. These are examples of how we reflect our British values in the country we wish Britain to be. Yet the Government have made clear their intention to do away with the Human Rights Act and to replace it with a British Bill of Rights. The question is: what values will such a Bill of Rights enable or secure that are not already enshrined in the Human Rights Act through its incorporation of the European Convention on Human Rights?
Are there rights which we currently enjoy that the Government are keen to strip out of a UK Bill of Rights? Surely it cannot be the protection of freedom of speech or the right to a fair trial, or the right of religion and freedom of assembly, or the right to a private life. Is it the right to free elections that they fear or the right to protection of property, as they pursue their attempts to sell off housing association homes? Which one of these freedoms and rights would not be in a Conservative Bill of Rights? If the answer is that they would all remain, why are the Government so keen to abolish the current Act and put into jeopardy the jurisprudence and case law that have gone with it?
Perhaps the real problem is not with the Human Rights Act but with the fact that it gives United Kingdom citizens a pathway to the Strasbourg court, with the ability to challenge—in Europe, no less—a decision made by government. The right to take a case to Strasbourg will not be revoked by the repeal of the Human Rights Act. Citizens were taking cases to Strasbourg before 1998. The whole point of the Act was to make the convention rights more readily justiciable in our domestic courts. Is it really the Government’s intention to cut off any redress by appeal to Strasbourg, especially when under Article 35 of the convention, the United Kingdom has undertaken not to hinder in any way the effective exercise of this right? What is the Government’s view on Article 46 of the convention, which imposes on all states parties a binding international obligation to abide by final judgments against them? Repeal of the Human Rights Act would not alter the international obligations that the United Kingdom has undertaken.
The last published edition of the Ministerial Code states as a general principle the overarching duty on Ministers to comply with the law, including international law and treaty obligations. If, as suggested in the Conservative manifesto, the Government wish to curtail the role of the European Court of Human Rights, is the Prime Minister prepared to suspend that part of the Ministerial Code in respect of the European Convention on Human Rights, with all the consequences that would have for a Government who protest the importance of the rule of law—or would the Government renounce the convention, and with it our membership of the Council of Europe?
Often in your Lordships’ House, we talk about Britain’s soft power as an influence for good in the world, but the opposite side of that coin is that if we are backsliding, we become an influence which justifies others’ injustice and intolerance. If hitting the pause button on the Human Rights Act reforms is perhaps a consequence of the Government waking up to the international ramifications of their objectives—on the basic ideal of the rule of law and its international and diplomatic consequences—it should also be an opportunity to consider the domestic consequences of ill-thought through proposals, not least in relation to the devolved institutions of the United Kingdom.
In particular, Northern Ireland has an important relationship with the Human Rights Act and the European convention. The Good Friday agreement enshrined a fundamental role for the ECHR in moderating the values of plurality and equality in Northern Ireland. Human rights protections were a central feature of the peace process; they cannot lightly be brushed aside. There are also international implications, specifically in relation to our relationship with Ireland. The agreement was incorporated as a treaty between the United Kingdom and Ireland and lodged with the United Nations. Article 2 of the treaty binds the United Kingdom to implement provisions of the agreement which correspond to its competency, and paragraph 2 of the “Rights, Safeguards and Equality of Opportunity” section of the agreement states:
“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights … with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency”.
That commitment was given legislative effect through the Human Rights Act. I fear that the United Kingdom’s international standing and its relationship with Ireland could suffer grievously if its obligations under the Good Friday agreement were not observed. Pulling Northern Ireland out of the European convention would violate international law and surely have severe ramifications for the peace process.
Also, the plans may well be stopped in the Scottish Parliament or the Welsh Assembly. The Scotland Act and the Government of Wales Act define the legislative and executive competences of the respective devolved institutions by reference to the convention rights, as defined in the Human Rights Act. Adam Tomkins, professor of public law at Glasgow University, has speculated on whether a legislative consent Motion would be needed in the Scottish Parliament to repeal the Human Rights Act. He went on to take a clear view that if any British Bill of Rights contained new rights which impinged upon the exercise of the Scottish Parliament’s legislative powers or the Scottish Ministers’ executive powers, a legislative consent Motion would be needed.
Professor Tomkins, for whom I have the highest regard, is now a constitutional adviser to the Secretary of State for Scotland. Is it the Government’s view that legislative consent Motions will be necessary? What happens if they are not forthcoming? Could we have a position where citizens’ rights in Scotland are different depending on whether the public authority exercises devolved or reserved responsibilities? It has the making of a dog’s breakfast and is perhaps a reflection of a policy that was not properly thought through.
What are the real motivations in embarking on a course fraught with constitutional danger? Is it part of a wider move by the Government to make it more difficult for those with legitimate reasons to challenge them? Why are the Government so scared of such challenges? Could it be because the Government fear that a number of their polices coming down the track—cuts in working-age benefits, cuts in disability benefits and the compulsory sell-off of housing association homes—may well be susceptible to challenges in the courts? The Human Rights Act allows us to challenge the decisions of the state, and I would be interested to hear what guarantees the Minister can give us today that the proposed Bill of Rights would continue to allow such challenges to the same extent as we have today.
This is a fight, or a debate, that we would rather not be having. The contract between the state and the public needs to be retained and enhanced, not diminished or swept aside. Rather, we should look to the future and to ensuring that our fundamental rights and liberties are protected in a way that is compatible with the new technologies of the day. We should be looking to the creation of a new digital Bill of Rights that will help safeguard and protect our citizens online and ensure that the same rights enshrined in our law in 1998 hold true as we enter a world of new technology that does not respect boundaries.
At one level, the Human Rights Act is simply a vehicle for bringing convention rights into our domestic law, but it has become more than that. It is woven into the devolution settlements and is widely seen as symbolic of our country’s commitment to openness, tolerance and the rule of law, to which even government is subject. I am sure that the Liberal Democrat Benches are not alone in this House in being unable to comprehend what purpose the Government think they are serving by abolishing such a fundamental Act, which is well understood by the courts and respected around the world. The only apparent rationale is to replace convention rights with a British Bill of Rights which curbs existing rights or to exclude resort to the European Court of Human Rights, putting the clock back almost 50 years with all that that entails in terms of reneging on international obligations.
It is often said that eternal vigilance is the price of liberty. The Government should be in no doubt that we on these Benches will be especially vigilant. I beg to move.
Lord Lexden (Con)
My Lords, I have difficulty in getting used to the fact that the noble and learned Lord, Lord Wallace of Tankerness, is no longer addressing us from the Government Front Bench, of which he was such a conspicuous adornment. I thank him for bringing this important debate before us today. I would like to offer just a few comments on some aspects of human rights in his debate.
First, I make clear my support for the European Convention on Human Rights. As is well known, the convention owed much to the legal acumen and drafting skills of an influential Tory, Sir David Maxwell Fyfe—who, by the way, was a man of rather gloomy disposition, prompting a little ditty among his colleagues at the Bar:
“The nearest thing to death in life,
Is David Patrick Maxwell Fyfe”.
Churchill warmly welcomed and indeed applauded the convention. Speaking in Strasbourg on 17 August 1949, he expressed his special pleasure that the European court that was to be established would, in his words,
“depend for the enforcement of its judgments on the individual decisions of the States now banded together in this Council of Europe”.
Among its many contributions to progress in our land, the convention has assisted powerfully in the removal of gross inequalities and social stigmas that so long blighted our society and to which the noble and learned Lord made reference. It has enlarged and protected our freedoms. Speaking in the debate on the Queen’s Speech on 1 June, my noble friend Lord Black of Brentwood, executive director of the Telegraph Media Group, stressed the importance of Article 10 in safeguarding the precious freedom of the press, which politicians are often sorely tempted to try to weaken. Because of the reliance that newspapers have been able to place on Article 10, safeguarding freedom of expression, they have been able to serve us and our democracy more faithfully and fearlessly. There surely could be no more telling or powerful example of the convention’s importance.
A profoundly important process of consultation on the future of human rights legislation in our country is now under way. It is surely essential that this consultation should exclude no political party, organisation or individual that may wish to contribute to it. We need to achieve a wide consensus about the shape of our future arrangements in this fundamental department of our constitutional and legal affairs—indeed, in all departments, as my noble friend Lord Forsyth of Drumlean mentioned earlier today.
It is good to see the phrase “one nation” back in fashion. We owe it, incidentally, not to Disraeli but to Stanley Baldwin, who was the first to use it, saying in a speech on 4 December 1924 that his party, then known as the Unionist Party, needed to bring together,
“those two nations of which Disraeli spoke two generations ago; union among our own people to make one nation of our own people”.
To achieve a one-nation approach for the construction of a British Bill of Rights, fully compatible with the European convention, do not we need to ensure that all parts of our country and all relevant interests within them are fully consulted?
I refer to just one of the crucial issues which needs to feature prominently in the process of consultation—the uneven enforcement of certain rights in our country today. The existence of this issue is in part a consequence of the establishment of devolved legislatures and Executives. Northern Ireland, a part of our country in which I am deeply interested, has been affected particularly significantly. Encouraged by my friend the noble Lord, Lord Lester of Herne Hill, I have on a number of occasions brought before your Lordships’ House the wholly unsatisfactory state of affairs that now exists in Northern Ireland in relation to the law of defamation. For the first time in our history, Northern Ireland has a different libel law from that in England and Wales, because the Northern Ireland Executive refused without giving any reasons to implement the Defamation Act 2013. One most serious and baleful result, as the noble Lord, Lord Lester, recently stressed in a fine lecture, is that publishers have to meet different standards in different parts of the country, even though free speech is a fundamental right. Ought not a fundamental right to be given effect in the same way throughout the realm? As things stand, Northern Ireland seems destined to stand apart from the United Kingdom for years to come.
In November last year, the independent Law Commission in Northern Ireland began a consultation on the law of defamation that ended on 20 February this year. A few weeks later, the Law Commission was effectively shut down. Its work has been subsumed within the Northern Ireland Department of Justice—part of the very Executive who are blocking Northern Ireland’s access to a major right in its current form enjoyed by the rest of us. It is the same story with same-sex marriage. My gay friends in Great Britain can get married if they wish to—my gay friends in Northern Ireland cannot. An application for judicial review has recently been lodged in the Northern Ireland courts. There are other examples of serious disparities in human rights between Northern Ireland and the rest of the country. Are we content that such a state of affairs should continue to exist, or do we want to do something about it? It is an issue that those preparing the ground for a British Bill of Rights must not dodge.
Lord Cashman (Lab)
My Lords, I welcome the decision of the noble and learned Lord, Lord Wallace, to have this very important debate, and I am pleased also to follow the noble Lord, Lord Lexden.
I have not made any notes today because I wanted to speak in a personal capacity. First, I must declare an interest as a co-founder of Stonewall. I do not understand why the Government are taking this approach to the Human Rights Act, which has worked magnificently for 15 years, with the consequence that if we adopt the proposals the Government outlined in 2014, we could very well move away from the European Convention on Human Rights. That has consequences beyond human rights, which some noble Lords may well welcome. Indeed, it would perhaps prohibit us from remaining a member of the European Union.
I cite the European Union for a very good reason—because the Council of Europe, which Churchill took great pride in, the European convention and our Human Rights Act all stem from an amazing point in history: the end of the Second World War. The founders of a new Europe looked across Europe and stated that what happened should never happen again. The convention, the Council of Europe and the European Union were quite literally born out of the ashes of the Second World War, the ashes of peoples’ hopes and dreams and, yes, the ashes from concentration camps dotted across Europe.
We have seen the least favoured defended—people like me in the 1980s, having no rights as a gay man—through Stonewall and through courageous individuals pursuing their cause, literally dragging their cases through the courts of the United Kingdom to prove that they could go to the court in Strasbourg and achieve a judgment. That is one of the reasons why I can now stand in the United Kingdom and almost enjoy equality. Sadly, simply because of their sexual orientation and somebody else’s religious belief, people in Northern Ireland cannot enjoy those same rights. The jurisprudence we have gained from the European Court of Human Rights is what our rights here are based on.
It is good to see the Minister in his place. I owe him an apology because I talked about these issues in the debate on the gracious Speech on 1 June but was not in my place for his winding-up speech. Subsequently, as I hope noble Lords expect good East End boys to do, I wrote him a letter of apology. In his winding-up speech he referred to the fact that we do not need Strasbourg in order to achieve rights. That is absolutely correct. We need Strasbourg when Governments do not want to give those rights and when Governments believe that equality is inappropriate for certain individuals or sections of society. The Conservative Government could introduce equal marriage in the other place precisely because of the courage of organisations and individuals who had gone through our courts and to Strasbourg in order to achieve jurisprudence and a judgment upon which the Government could decide to act, or not to act. In the early 1990s, when the European Court of Human Rights gave its judgment that the ban on lesbians and gays serving in the military was wrong, the Government, quite rightly, could have merely noted the judgment and continued with the ban. They chose to do the right thing and recognise the judgment.
Here I come to one of the central points of the Motion of the noble and learned Lord, Lord Wallace: the challenges. One of the biggest challenges is the misinformation and disinformation about the European Court of Human Rights and the Human Rights Act, largely purveyed, I am saddened to say, through our newspapers and the reactions of some politicians. The reaction of politicians, from all political parties, to the judgment on the blanket ban on prisoners having the vote was shameful. It was misrepresented as Strasbourg once again interfering with a sovereign parliament. However, it is up to Parliament to accept the judgment or not; it is Parliament that decides to change its laws, or not.
Before I conclude, I thank noble Lords for indulging me today. For me, this is personal as well as political. As I have often said in this House—I believe that I even said it in my maiden speech—I am an atheist, although someone pointed out to me that perhaps I am a recovering Catholic. What I have to do, as a human rights defender, is always defend the other—defend the right to religious belief and defend the right to difference, because if I do not, how on earth can I ever expect anyone to defend me? Great democracies, beacons of democracy such as the United Kingdom, are such because we have had the courage to speak externally for the rights of others and internally for minorities. All great democracies are judged not by how they treat their majority but by how they treat their minorities—the least favoured, even someone who wants to use the Human Rights Act to escape deportation. Is it not better that we have a handful of cases where there is an abuse of law, rather than see a majority denied access to justice and access to law and equality?
The noble and learned Lord, Lord Wallace, mentioned the international aspects. I am deeply worried that what we do in these Houses will give succour to those who thought that they could use teargas and shoot rubber bullets at the gay parade in Istanbul last week, or members of the junta in Burma who feel it is absolutely right openly to condemn people merely because of their sexual orientation.
These arguments have been going on for not just the past century, but centuries. I will perhaps commit a small theatrical blasphemy by paraphrasing William Shakespeare, who co-wrote a brilliant play called “Thomas More”. Thomas More is called to the Tower of London as the citizens of London are rebelling because the “strangers” have made their way from Calais to Dover. He comes out, and with one hand quells the mob—if only we politicians could do the same—saying, “You bid that they be removed? The stranger, with their children upon their back, their belongings at their side, their family around them. Imagine you are the ‘stranger’ with your children upon your back, your family at your side, your belongings at your feet. Imagine that you are the stranger and then bid that they be removed—and show your mountainish inhumanity”. Now is the time for all of us to speak against inhumanity and in defence of human rights.
Lord Lester of Herne Hill (LD)
My Lords, it is a great privilege to follow three such powerful speeches. I cannot match the eloquence of the speech just now from the noble Lord, Lord Cashman, but I hope that it will be read by members of his party and indeed of all parties and none after this debate. It is a pleasure to speak in the presence of the noble and learned Lord, Lord Irvine of Lairg, since it is he, more than any other Minister in the Labour Government, who takes credit for the Human Rights Act. I am very glad that he is here.
No law can save our human rights unless there is a culture of liberty that is deep-rooted and popular. Law is not a panacea. It has to enjoy public confidence and to be respected by Ministers in what they do as well as what they say. The Human Rights Act requires Ministers to state whether they believe a government Bill to be compatible with rights protected by the convention. It requires all three branches of government—Parliament and the Executive as well as the judiciary—to act compatibly with the convention rights. It preserves parliamentary sovereignty. Our courts may declare legislation to be incompatible with the convention, but may not strike it down. The Human Rights Act leaves it to the Executive and Parliament to choose whether and how to comply with a declaration of incompatibility, or to leave the claimant to seek redress in Strasbourg.
The Act requires our courts to have regard to Strasbourg judgments, but not to be bound by them. Our Supreme Court has been robust in recent years in subjecting Strasbourg reasoning to critical scrutiny, and explaining where it begs to differ. A valuable dialogue now takes place, and the judgments of our courts are influential in Strasbourg.
Today the main threats come from a Government of zealots. If they succeed in doing what they threaten to do, their legacy will be to have weakened the protection of human rights and undermined the culture of liberty. The newly elected Government, unrestrained by their former coalition partner, threaten to tear up the Human Rights Act and replace it with a weaker British Bill of Rights that may not be anchored in the convention. They also threaten to ignore judgments of the Strasbourg court with which they disagree, undermining the rule of law here and across Europe.
The new Lord Chancellor and Justice Secretary, Michael Gove, is in charge of human rights policy. His predecessor, Chris Grayling, and the Home Secretary, Theresa May, are hostile to the Human Rights Act and to the Strasbourg court. So is Michael Gove’s junior Minister Dominic Raab, as he showed in replying to the Westminster Hall debate on Tuesday. On 23 June, Dominic Raab told the Commons that the Government’s,
“plans do not involve us leaving the convention”,
but he added that,
“our No. 1 priority is to restore some balance to our human rights laws, so no option is off the table”.—[Official Report, Commons, 23/6/15; col. 748.].
On Tuesday, he again told the Commons the same thing. I ask the Minister to explain quite unequivocally whether leaving the convention is or is not on the table as a possibility.
Were we to replace the Human Rights Act with something weaker and no longer anchored in the convention, that would be used by Europe’s pseudo-democracies in the former Soviet empire to justify flouting European human rights law. As the noble Lord, Lord Lexden, said in his powerful speech, it is dispiriting that a great political party that played an inspiring role under Churchill in creating the European convention system should be led by Europhobes who would weaken the effective protection of human rights by the European Court of Human Rights and even by our own courts.
I say that the Government are zealots because they know that they are right and are not interested in genuinely open dialogue with those who disagree. When the Prime Minister decided not to rush to introduce a Bill while striving to renegotiate the UK’s membership of the EU, I wrote to Mr Gove welcoming the decision and asked him to meet to discuss the issues. I received no reply, not even a formal acknowledgement by his private office. Mr Gove has issued guidance to his civil servants on the importance of writing grammatically in their correspondence. Further guidance is needed from the Prime Minister on the need for good ministerial manners.
Mr Gove told the Commons on 28 May that, because the Official Opposition and the SNP oppose the Government’s plans, they,
“have already ruled themselves out of the debate on reform that we need to have”.—[Official Report, Commons, 28/5/15; col. 292.].
That no doubt includes Liberal Democrats, because we strongly oppose the manifesto threats. Then, on 23 June, Dominic Raab told the Commons that the Government intend to consult,
“fully, including with the devolved Administrations, in due course”.—[Official Report, Commons, 23/6/15; col. 748.]
I hope the Minister will explain in his reply how he squares that with Michael Gove’s statement. Can he tell us the discussion that Michael Gove had with the Justice Minister in the Scottish Government last week, and whether it included the Government’s human rights plans?
I served as a member of the Commission on a Bill of Rights that reported in 2012. The Minister was a fellow commissioner. You had to be a masochist to serve on that commission. He wrote a separate paper with another Conservative commissioner, Jonathan Fisher QC, in which they attacked the Strasbourg court for what they regard as undue judicial activism and suggested that the cause of human rights would be better served by withdrawal from the convention so as to free it from the strictures of the court.
Their approach was embodied in the Conservative election manifesto. Before those pledges were made, the Prime Minister removed Dominic Grieve as Attorney-General, who explained in the debate this week that the Human Rights Act has conferred,
“huge benefits on this country”.—[Official Report, Commons, 30/6/15; col. 410WH.]
The former Solicitor-General, Sir Edward Garnier, said in the same debate that,
“the political reality is that there is no majority in this House”—
that is, the other place—
“and there certainly is not in”,
the House of Lords,
“for a repeal of the Human Rights Act—still less for our removal from the European convention”.—[Official Report, Commons, 30/6/15; col. 418WH.]
Dominic Raab is concerned that what he calls “rights inflation” has diluted personal responsibility. The only example he gives is of a claim that failed, and he complains that the Human Rights Act has exposed us unnecessarily to too much “judicial legislation”, as he puts it, in Strasbourg and at home. These criticisms are not, in my view, fair or reasonable.
This Government threaten not only our culture of liberty and respect for the European rule of law but the unity of the UK. However much the Government say they will consult the public, they are guilty of at least the appearance of prejudgment and a lack of interest in seeking a consensus on what are major constitutional issues. If the Government go ahead with their plan to tear up the Human Rights Act and flout judgments from Strasbourg with which they disagree, they will face deep hostility in Scotland, Northern Ireland and Wales and, I dare say, much of England, too. The public will not welcome a weakening of the legal protection of their fundamental rights, and the unity of the nations will be undermined.
If Michael Gove was serious about a one-nation justice policy, he would not adopt the policy that he now seems to be pursuing. There is a crisis in what is a two-nation civil and criminal justice system. What use is the rhetoric of a UK Bill of Rights if only the wealthy and the powerful can enforce those rights in our courts?
Lord Carswell (CB)
My Lords, I have to confess to a degree of hesitation about entering into a debate on the topic of human rights with the noble Lord, Lord Lester of Herne Hill, whose knowledge of the subject is encyclopaedic and whose experience is unrivalled. However, I have a point to put before your Lordships and a suggestion to make, therefore I shall dare to be a Daniel.
Sir John Major said some time ago, echoing Disraeli, that:
“We have no need of a Bill of Rights, because we have freedom”.
There has been a great deal of discussion, both before your Lordships and elsewhere, about the Human Rights Act, the Convention for the Protection of Human Rights and Fundamental Freedoms—to give it its full and proper title—and the possibility of substituting for it a British Bill of Rights. My thesis is that there is a simple, straightforward and pragmatic way forward, which will avoid many of the difficulties, which I shall outline very briefly.
I start by saying straight out that I have no hesitation in saying that the convention was in itself an excellent idea. It was promoted by statesmen of great standing imbued with the desire to preserve liberty against the type of oppression about which and against which we had fought a long and testing war. It was a worthy attempt to encapsulate the basic standards for the relations between states and their citizens. It is worth while just sitting down and reading straight through Articles 1 to 18 of the convention, which confer the rights. They set out the rights and freedoms in terms which enshrine principles that should be fully acceptable to all civilised people.
In my view, the real trouble has arisen from the interpretation and application of the wording of those principles. I need not dwell on the well-publicised results, which have caused justifiable concerns to sensible citizens and have been well rehearsed in the press—somewhat noisily at times. So I shall not go on about cats or about people who choose to think that a monitoring tag is an explosive device designed to blow them up. Much of the problem stems from the approach of the European Court of Human Rights in Strasbourg. It has certain similarities to what is called the acquis communautaire of the other European institutions. There has been a ratcheting and one-way process, ever expanding the breadth of the meaning of the convention’s articles and, your Lordships may note, expanding with it, too, the power and reach of the court. The justification of this has been the interpretation of the convention, resorted to by the court, as a “living instrument”.
I have to say with a degree of regret that our domestic courts have in many cases showed themselves perhaps rather too keen to adopt a similar approach. That has been compounded by what I believe has been a mistaken process of following the Strasbourg decisions and pronouncements rather too literally. I have to hold my hand up and plead guilty to having been party to this when sitting in your Lordships’ Appellate Committee, but in my own defence I have to say that it would have been rather difficult to hold out against the very widespread acceptance by my colleagues of such a process.
The wording of the Human Rights Act requires our courts to “take account” of Strasbourg decisions. It was deliberately so framed and was very much the product of the ideas of the noble and learned Lord, Lord Irvine of Lairg, when Lord Chancellor in this House. The intention seems to have been pretty clear at the time of the passing of the Act: that some flexibility should be left in handling Strasbourg case law. I think it likely that those who framed the wording and those who approved it on many occasions were surprised by the way in which the courts applied it, but the courts were steeped in the long common-law tradition of being rigidly bound by precedent and they never got their mindset away from that.
In spite of the problems which have arisen—and there have been many—I would not support withdrawal from the convention. If it were sensibly applied, I would regard it as a perfectly acceptable series of principles. Of course, if we were to withdraw, that would, as the noble Lord, Lord Lester, and many others have pointed out, undoubtedly be used as a reproachful criticism—a stick with which to beat our Government and our country—as indicating a desire to depart from the standards of the convention. That might indeed be wholly unfair, given the long history in this jurisdiction of restraints on attempts to impose oppressive laws on our citizens, but it is a real risk and a further strong reason against withdrawal.
The same considerations do not apply to the Human Rights Act 1998. That introduced the requirement for domestic courts to follow Strasbourg decisions, in some fashion, and to set aside or declare incompatible legislation enacted by our Parliament. Frankly, I think that events have shown that we would now be better off without the provisions of the Act and I favour its repeal.
The noble and learned Lord, Lord Wallace of Tankerness, referred to a dog’s breakfast. I fear that what we have now takes something of both canine breakfast and dinner. Should we substitute a Bill of Rights for it? I say no, for two good reasons. Once a written instrument of this kind is produced it creates a vehicle for endless litigation and an industrious and ingenious search for loopholes. We have only to look at the terms of some of the suggested worthy and very well-meant attempts to draft a possible Bill to see that they are completely stuffed full of such possibilities for dispute.
My suggestion is simple: forget withdrawal from the convention and forget a British Bill of Rights—just repeal the Human Rights Act 1998 and leave it at that. We should then be back to where we were before 1998. That does not involve rejection of the principles of the convention, let alone withdrawal from it; though to listen to some criticisms of the present proposals one would think that simply repealing the Human Rights Act would immediately mean an abandonment of the convention—it means no such thing.
The courts would be able to pay as much attention to the Strasbourg decisions on the interpretation and application of the convention as they thought fit. From previous experience, I think that they would, in practice, examine those carefully in every case where the principle becomes an issue to see whether a contemplated decision accords with the Strasbourg jurisprudence. The current authority is obviously a useful guide if a point might be decided either way, but the courts would not necessarily have to follow it if they disagreed with it or if the clear terms of a domestic statute required them to reach a different conclusion. That would still leave it open, as before, and as now, for an aggrieved party to take his case to Strasbourg and seek a remedy there. There was a steady flow of such applications prior to the 1998 Act, some of which were successful, but it was not on such a scale that we could not as a country tolerate it. I suggest that it would be worth putting up with that again to gain a degree of freedom from the shackles of the Strasbourg decisions.
The continued existence of the right of appeal to Strasbourg should act as a brake on any temptation to impose excessively draconian legislation and influence courts not to fly in the face of clearly correct Strasbourg case law. Perhaps some decisions of our courts would continue to raise eyebrows and give rise to headlines—whatever the system, we will get decisions like that. But appeals and appropriate legislation should operate to correct it.
A tailpiece, if I may mention it in closing: some of your Lordships have referred to the importance in Northern Ireland of the Human Rights Act and the convention. I do not attempt to speak for any authority or people in Northern Ireland, but my view, based on 40 years of experience in the law before 1998, partly as a practitioner and partly as a judge, is that we did get along pretty well. I put that mild point before your Lordships.
I commend to your Lordships the course of action I have suggested.
Baroness Ludford (LD)
My Lords, it is a great pleasure to follow noble and learned colleagues in this debate and I have appreciated all the contributions. I am surprised to realise that I am the only woman contributing to this debate, which seems a bit odd particularly in a debate on human rights and civil liberties.
I have found it disorientating and disconcerting to observe just how un-Conservative is the attitude behind demands to repeal the Human Rights Act, to defy the Strasbourg court or even to pull out of the convention. My noble friend Lord Lester referred to this attitude as one of zealotry; I am coming to regard it as a sort of “Syriza Tory” attitude. It is a revolutionary spirit that one does not associate with the Conservatives—the clue is in the name. We have always thought that we could rely on the Conservatives to be rather resistant to extreme change.
As I travelled in on the Tube today, I saw a poster advertising a book on Churchill by the aspirant Prime Minister, Boris Johnson. It is called The Churchill Factor and is apparently in the top 10 list in the Sunday Times. This is the same Boris Johnson who, like Syriza, wants to have two referenda, with the public being told to vote no in the first one in order, apparently, to get more leverage in negotiations with the EU before a second. Well, it does not work for Syriza and I do not think that it will work for Boris Johnson.
I shall not repeat what the noble Lord, Lord Lexden, said about the Conservative role in the writing of the European Convention, but there is also a strong history of Conservative support for incorporation of the convention into British law. I am reminded that in 1976 the Society of Conservative Lawyers recommended that,
“the ECHR should be given statutory force as overriding domestic law”.
There are other examples; I am sure that my noble friend Lord Lester is very familiar with them. So to call the Human Rights Act “Labour’s Human Rights Act”—I am sure that Labour in some ways wants to take credit for it—is simply not accurate.
The Prime Minister has given laudable support to the UK’s role in upholding human rights internationally. The Foreign and Commonwealth Office is championing effort to combat sexual violence and I warmly welcome the role that the Foreign Secretary William Hague had in that; it has been taken up now by our colleague, the noble Baroness, Lady Anelay. So why do we not want to take a lead in Europe on upholding human rights? In the European Union context, we are not in the euro nor are we part of the Schengen agreement, so it has always seemed to me—I spent 15 years in the European Parliament and was on the justice and civil liberties committee with the noble Lord, Lord Cashman—absolutely appropriate that the UK should play a leading role on justice and rule of law issues. I should perhaps express a note of regret that the UK has so far declined to opt in to the EU directive on access to law, which has nothing to do with legal aid and does no more than express what we already do in the UK. We are missing opportunities to put into practice our strong record.
My noble friend Lord Lester drew attention to the incoherence that we are hearing from Conservative Ministers, from the Prime Minister down, about whether their intention is to leave the convention. I join my noble friend in saying that I would welcome clarification on whether that is the aim. Certainly, the former Justice Secretary, Chris Grayling, has said that,
“it is time to examine how to curtail the involvement of the European Court of Human Rights in UK domestic matters”.
Many have commented that the only effective way to do that is by denouncing or withdrawing from the convention. That would have repercussions for our role in the European Union—maybe that is the intention—because Article 6 of the Treaty on European Union makes the declaratory statement:
“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.
So it is clear that you cannot be a member of the European Union if you are not a party to the European convention.
We understand the wish in the Conservative manifesto for our Supreme Court to be the ultimate arbiter of what the convention means in this country but, as others have said, it is already. Except for final judgments directly applying to this country which we are bound to implement under international law through Article 46 of the convention, our courts only have to take account of Strasbourg judgments. A fruitful dialogue has developed. There may have been a bumpy period but now there is a creative partnership between our Supreme Court and the Strasbourg court.
It was not Parliament’s intention in the Human Rights Act for domestic courts to be banned by the convention. However, I understand that during the passage of the Bill a Conservative Peer, the late Lord Kingsland, tabled an amendment to make convention case law binding on British courts—another example of a Conservative input which is thoroughly at odds with what we are hearing these days. The court cannot enforce a change in the law in the UK and Parliament remains sovereign. I have heard my noble friend Lord Lester say in the past that the Human Rights Act is a brilliant balancing act of the tension between the different branches of government. It was a wonderful solution to the dilemmas of how to right it.
It seems that the ultimate wish of these revolutionaries, these “Syriza” Tories, is to throw off external supervision of the Executive on how rights are observed in the UK—whether that is external to government, meaning the courts, or external to the UK, meaning Strasbourg—so that the Executive are able to pick and choose which aspects and beneficiaries should count as worthy of protection. That, of course, is completely against the spirit of universal human rights protection.
It would be fatal to our international reputation, to our role in the EU, the wider Europe and the Council of Europe, and to our moral authority to withdraw from the convention. However, that has to be the logic of what is proposed by the Conservatives. Frankly, I do not want to be on the same level as Belarus. It is not worthy of the Conservative Party. I am upset and angry that this short-sighted, cynical and irresponsible party policy could help to see the end of our United Kingdom as well as the end of our centuries of leadership in Europe and internationally. I hope the Minister can assure us that that is not going to happen.
Lord Addington (LD)
My Lords, when I put my name down for this debate, it was not because of the suggestion about changes to our legal framework but because of the reference to culture of civil liberties and human rights. As someone who has been concerned with disability, both inside and outside the education sector, for more years than I care to remember, I feel at the moment that that group’s hard-won rights are under threat.
We do not implement the rights that we have, and the big legal Acts are seen as great threats to get people to do the minimum. We are wasting huge amounts of time, effort and human resource running between those big rights at the front and their implementation on the ground. That is not a criticism just of this Government, but of probably every Government I have known since I came to this House—and I have been here for just over 29 years. All Governments pass a big Act and the politicians go, “That’s done, so now what is the next big Act?”, and we move on. We forget about implementation, and the “performance of duty” level is not considered. If we talk about taking away any strand of the overarching legal framework, even that which we have already got seems more and more vulnerable.
There is a great deal of implementation activity in education and special educational needs. We now have a good framework, which was slightly improved by the last Government through the Children and Families Act 2014—and I think that my own party made a real contribution to making sure that young people’s rights go on until they are 25 years old. We all know that the education system is something of a conveyor belt, so it is important to ensure that, if people have a problem, they are given a little more time to get themselves back on to that conveyor belt.
But if we have a culture where rights are taken away because they are inconvenient—people do not understand and say, “There is a little bit too much bureaucracy and it is getting in the way, and you just don’t understand the real world”, which is all part of the culture of interfering with regulation—you suddenly find that the people who are dependent on support in order to become full members of society begin to feel vulnerable. Add into the mix some talk of the “scrounger culture” when it comes to disability benefits, and we will be heading backwards. I saw the wheelchair protesters who upset Parliament a few days ago, something I have not seen since the early 1990s when that sort of action was required to get the first Disability Discrimination Act through. We are not giving the impression that we are taking care of people.
I turn to the other bits and bobs in this area. Education Ministers talk all the time about “catching up” and “maintaining standards”. Some 20% of the school-age population has some form of special educational need, so catching up is not on for many of them; it is about learning differently. Working hard in special lessons will not work because that just reinforces what has already failed. Indeed, the Labour Party tried very hard in this area by investing money in after-school literacy clubs and so on. They did not make that much of an impression for the simple reason that it is not about working harder but about working smarter. If we really wanted to do something, we would not be passing another law, we would do something radical like teaching our teachers how to deal with people who do not have mainstream learning patterns.
At this point I think I should restate my interest in this as a dyslexic, but doing so once in every three debates is probably sufficient now. We should be trying to encourage people to work more cleverly, and all the talk about red tape and needless intervention by the state will actually go against what we are doing. Why is dyslexia called the “middle-class disease”? It is because middle-class parents—or exam-passing parents—expect their children to succeed, and when they do not, they ask why. Those who come from a culture where people have not passed exams say, “Well, I didn’t, so why should they?”. It is that simple. We have discovered that dyslexia is passed down through families, so guess what we have got: a nice downward spiral. Unless we implement the Acts we already have and we intervene, we will not get there.
All areas of disability have this. We have had debates about bad implementation and, for example, how some police have not been aware of autism, and how they have interacted badly with someone and then been terrified to admit that they have got it wrong. Some hotel rooms simply are not accessible to someone in a wheelchair or even, perhaps, someone who just has bad knees and cannot get in. Hotels are supposed to have dealt with that issue for decades. Unless we address the implementation of law and stop saying that everything is bad if it comes in regulations, we will create more problems. We just shift the problems.
I now intend to get a bit of reflected glory from something with which I am associated only in name but not by deed. Microlink, of which I am chairman, has been working with Lloyds Bank. We have had a good, practical example in the business environment of how to help people. I should probably give the snappy title, which is the “Lloyds workplace adjustment case study”—I can see that tripping off everyone’s tongue. With Lloyds, we discovered that if management says, “This is important”, things happen. The management has to say to the line manager, “It is your problem, so deal with it—it comes out of your budget”. Things happen if you drive things from the top. The net result was that Lloyds got absenteeism down and saved money. If law is implemented across departments and you make sure that things happen quickly and easily, you will not always have to go back to the big beasts up there. After that, you might think about changing the law. Until you have done that and have a culture that comes down and drives forward, those big Acts are needed. Without them, nothing happens and there is no potential big stick and there is nothing to achieve results.
Let us look at the culture and make sure that it goes down through the legal framework. We must implement what we have and should not be terrified of making a regulation that says that something should happen quickly or saying to someone, “Another little regulation has come in—why haven’t you done it?”. People should not be allowed to say, “But you are interfering with a great structure and you do not understand the bigger picture”. When most people talk about the bigger picture, they are talking about their own very small one. They do not understand that it goes bigger than them.
If education changes are not implemented in a school because they are too expensive for the school budget, it is not the school which ultimately pays but the taxpayer because there are people on benefits for far longer than needed. That is what we are talking about. If we continue to attack the big pillars before we have something to replace them—and we may never be able to replace them—and fill in the gaps and make sure that things work, we will always have trouble. The cultural background is very hostile to taking positive action. Please can we make sure that we look at implementing what we have already said we will do? Unless we do that, we will have very little room for any form of manoeuvre.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, there is a dangerous tendency on the part of lawyers to talk about their own cases. Many years ago, the last Lord Chancellor of Ireland published the first of what was expected to be a two-volume set of memoirs. After the first volume appeared, there was an unaccountable delay but one of his colleagues discovered the explanation. He said, “I am told that the compositor has run out of capital ‘I’s.”.
In the general debate last week on the implications of the proposed constitutional changes, I touched on a number of the issues raised today by my noble and learned friend Lord Carswell. Rather than return to those matters, I thought it might help bring some of the issues alive if, instead, I was allowed to mention just one or two of the innumerable Strasbourg cases in which I have been involved in one form or another over the last 35 years. In the late 1970s and early 1980s, as Treasury counsel I used regularly to go to Strasbourg and there lose most of the Government’s cases. My overall record was, I think, played 12, won one, drew one and lost 10, which was not such a bad record in those days. Mostly the cases were about disadvantaged minorities, prisoners, immigrants, mental health patients and so forth. In those long-ago days, despite our nation’s proud tradition of liberty, tolerance and democracy, majority rule can now be seen to have accorded scant sympathy towards those unpopular interests.
Indeed, there were occasions when the Government were quite happy to lose their cases. Take prisoner rights: in those days the Home Office, to its credit, was keen to liberalise prison practices, but the Prison Officers’ Association was a militant union that was fiercely resistant to change. The result was a series of prison cases under the convention, all of which the Government loyally contested but comprehensively lost. So they became able, armed with Strasbourg’s adverse rulings, to force the union’s hand into accepting the changes required. For example, no longer were prison governors able to read all a prisoner’s correspondence, in and out, including his letters to his lawyers. The noble Lord, Lord Lester, will remember these cases; I rather suspect that we might have been against each other in some of them.
Another case that, rightly, we lost, was Malone, where the United Kingdom’s long-standing practice of telephone tapping—which in those days was authorised just by the Home Secretary’s warrant, with no legislative backing whatever—was struck down. That led to the Interception of Communications Act 1985. There was then a series of further adverse Strasbourg rulings and a succession of further legislation here to regulate our intelligence agencies and to control surveillance and the invasion of property and privacy rights, culminating in RIPA 2000, which is now again under review.
Later, but still before the 1998 Human Rights Act “brought rights home”, came cases such as ex parte Smith—the so-called “gays in the military” case—which the noble Lord, Lord Cashman, touched on earlier, and which I heard in the Divisional Court in 1995. Mr David Pannick QC, as he then was, to my mind comprehensively won the argument for the complainants, but the common law of England at that time made it impossible to find in their favour—a decision that was then reluctantly upheld by the late, much-missed Lord Bingham, Master of the Rolls, in the Court of Appeal. But I expressly stated in my judgment:
“I for my part strongly suspect that so far as this country’s international obligations are concerned, the days of this policy are numbered”.
So, of course, it proved to be, but it needed the convention to achieve it. In 1999, in the same case, Smith and Grady v United Kingdom, Strasbourg unanimously found us to be in violation of Articles 8 and 13, the Wednesbury irrationality test here proving too high a threshold for domestic courts to be able to adjudicate properly on the sensitive questions of necessity and proportionality arising under Article 8(2).
Doubtless, when we first signed up to the convention it simply never occurred to us—certainly not to military chiefs, who wrote a lot of fierce letters to me—that eventually we would be required by the Strasbourg court’s developing case law to allow homosexuals to serve in the Armed Forces. But do we really want, on that account, to take a backward step to where we were before the Human Rights Act brought rights home? So, too, in the case of life sentences for murder: before the Human Rights Act, under primary legislation it was solely for the Home Secretary to decide whether and when such prisoners should be released. However, Strasbourg held that it was for judges to decide the appropriate tariff term and, later, that it was for the Parole Board to decide after this term when the prisoner could safely be released.
I turn briefly to one or two cases which were decided here after the Human Rights Act came into force but which, on subsequently being taken by disappointed applicants to Strasbourg, were there decided against the United Kingdom. Take the case of S and Marper about the retention of DNA samples and fingerprints. In 2004, the Appellate Committee of this House held unanimously that it was perfectly lawful to hold these samples indefinitely in the interests of solving future crimes, irrespective of whether those who had provided them were later convicted or acquitted. Strasbourg held that approach to be unlawfully indiscriminate and eventually, of course, we legislated to require the destruction of such samples after a given period, certainly in the case of those acquitted. I confess to remaining unrepentant about our original decision in that case, as, too, about the decisions we took in the appeal committee here regarding, for example, stop-and-search powers in the case of Gillan and control orders in the case of AF(No.3), where, again, Strasbourg subsequently disagreed with us.
However, I recognise that many people, not just extreme libertarians, preferred Strasbourg’s judgments on these issues to ours. Certainly, I remain unpersuaded by the Government’s case for repealing the Human Rights Act and substituting for it a more restrictive domestic Bill. Rather, I remain convinced that there is altogether more to gain by loyally submitting to this supranational court in the wider interests of all who are within the Council of Europe countries than by defying its rulings, as, alas, we continue to do on prisoner rights, let alone by withdrawing from our basic commitment to the convention.
I agree that our courts should be careful not to gold-plate convention rights—not, that is, stray beyond the limits of those rights as already clearly established by Strasbourg. But I believe that we should continue faithfully to give effect to convention rights in so far as they have now been clearly and authoritatively established.
I have, I fear, now run out not only of capital “I”s but also of time. I can only crave the House’s indulgence for my self-indulgence.
Lord Roberts of Llandudno (LD)
My Lords, this has been a fascinating debate with so many different spheres and approaches. I was certainly struck by the most impressive speech of the noble Lord, Lord Cashman, and by the fact that he admits to being an atheist and a recovering Catholic. I suggest that he might find the Welsh Methodists a little bit more attractive. His eloquence would sway the Welsh pulpit. I will talk to him about these things after the debate.
I do not wish to go back to the European convention but to Magna Carta 800 years ago. Since then, the battle for rights and liberties has continued in the United Kingdom. We had the Great Reform Act 1832, and, since then, a wide diversity of people have been enfranchised. It does not matter whether you are male or female, anyone over 18 now has the vote. It is wonderful. We believe that having the vote gives us a voice and an influence. In Scotland, the 16 year-olds came out in their thousands and that has brought to light a greater feeling for democracy and the involvement of young people. Of course, that is being carried on in the United Kingdom, where we have a campaign to try to bring the voting age down to 16.
Votes are important—yes, every vote—but are all votes equal? In some constituencies an MP can be elected with less than 30% of the vote. In my own constituency of Aberconwy, 58% of folk voted against the sitting MP but he won because 42% voted for him. Over in Anglesey, 68% voted against the sitting MP but that is all right because 32% voted for him. Is this democracy? In Wales we have 40 MPs but only four had more than 50% support in their constituencies. Throughout the United Kingdom the Conservatives polled 37% and the rest of us got 63%. That means that they have an overall majority of 12, which is what we have at the present time.
I will be interested to see the Electoral Commission’s judgment not only on the voting but on the money that is being used to fight some of these constituencies. I am sure that at some point we will need to look at the funding of election campaigns. I am told that more than £1 million could have been spent in one or two constituencies. I find it hard to believe but I look forward to that report from the Electoral Commission.
Does the present electoral system give the Government the right—the mandate? When there are only two parties, one will get 51% and the other will get 49%. You have to accept it. But today, with so many parties, the situation is very different. This 37% to 63% is totally undemocratic and cannot be justified. The Government introduce legislation without a mandate. They abolish the railway plan, threaten the Human Rights Act, sell off homes and say that if immigrant nurses are not able to earn £35,000 after five years here, they should be deported—all without a mandate, on a minority vote.
I am honorary president of Bite the Ballot—me, an elderly person, president of this campaigning youth organisation. This year we were so delighted that half a million youngsters were registered to vote for the first time. I thank the team who worked so hard to ensure this. I can now go into schools and colleges and say, “My friends, I want to thank you so much for registering to vote but I have a story to tell you: only one-third of you will vote for a winning candidate. The rest of you might as well have stayed at home and not registered at all because under the present system your vote will not count”. If we are to get rights and liberties for the future, we have to get this right.
We can tell the youngsters, “You might have better luck next time”, but this time the vote of 63% is not carrying any real influence. I say to the Conservatives and people on the other Benches: please think this through. Can you really justify this? You say we had a referendum on AV. Yes, that would be one answer but it was a referendum on a system we do not advocate. Can you say that 37%—a minority—is justified in claiming a mandate to rule the 63%? It just is not. It is not democratic. This 37% have enabled, perfectly correctly under our first past the post system, one individual to enter 10 Downing Street as Prime Minister—power rests with the minority.
I had a letter appointing me to this place some years ago now and it came from 10 Downing Street. But he is there with only 37% and yet he, or whoever is working with him, is able to appoint the people in this House of Lords. Therefore not only is the House of Commons unrepresentative but this House of Lords is as well. I am delighted to be here and I will do my best under the present system of appointment but I would much prefer an elected Chamber where people would feel, “We have a validity. We have a right to be here”. Most of us are here just by a stroke of luck and yet we have rights because of that—but no mandate. Yes, let us rejoice in the human rights, the European convention and so on, and the civil liberties that we have achieved over the years but there is a great deal yet to be done until we are able to say that we are a democracy and the elected Parliament has the mandate to carry out these various pieces of legislation.
Lord Marks of Henley-on-Thames (LD)
My Lords, we have had a very strong debate, at a time when the Conservatives’ manifesto commitment to,
“scrap the Human Rights Act and introduce a British Bill of Rights”,
appears at least to have softened. The Government are now to bring forward proposals and there is to be a consultation. Will the Minister clarify what is intended? Will we have an open consultation seeking ideas for a new Bill or will it be based on a set of proposals or a draft Bill? While there may be advantages in saying what is proposed, there may also be benefits in inviting broader new ideas. I hope that the Minister will also respond to my noble friend Lord Lester’s invitation to confirm that the Government will not leave the European Convention on Human Rights. If so, it must follow that the Government accept our convention obligation to comply with the decisions of the European Court of Human Rights in Strasbourg.
During the debate on the Queen’s Speech, the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place today, said that the failure to implement the court’s decision on prisoners’ voting rights had left our obligation,
“in suspense in the sense that it has not been complied with”,
and he expressed,
“great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound”.—[Official Report, 1/6/15; col. 179.]
I share that anxiety. The noble and learned Lord suggested a possible way forward. It might be possible, he said, to negotiate an amendment to the convention for a country such as the United Kingdom in which the courts have no power to strike down legislation, permitting Parliament to resolve not to implement a decision of the court for stated reasons. That suggestion has generated considerable discussion, which is not surprising considering its provenance. I hesitate to disagree with the noble and learned Lord but, on reflection, I have three reasons for not pursuing his suggestion.
The first is purely practical: I doubt that other contracting states would agree to it; indeed, I see no reason why they should. Secondly, given the United Kingdom’s traditional international leadership on human rights, we should not be trying to negotiate what is essentially an opt-out from the convention. Thirdly and most importantly, it is precisely because the United Kingdom is bound by its obligation to comply with the court’s decisions that the convention acts as an effective international guarantee of our human rights, particularly given that our courts cannot strike down incompatible legislation. The danger of Governments securing parliamentary approval for non-compliant government action when they dislike decisions of the Strasbourg court is something we should be vigilant to avoid.
The noble Lord, Lord Cashman, movingly emphasised the point that human rights are needed to deal with exactly those rights the Governments do not like. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made the same point, with a very large number of examples, in a different but equally effective way.
If this proposal is to proceed, a new Bill must preserve the careful balance found in the Human Rights Act between Parliament and the courts whereby the courts are bound to interpret legislation in a way which is compliant with the Act where they can but, where they cannot, have the power not to strike down legislation but to grant declarations of incompatibility, leaving Parliament to make the final decision as to whether to change the law. This careful balance, mentioned by my noble friend Lady Ludford, is part of the genius of the Human Rights Act. Will the Government retain it?
Any new Bill must also ensure that the existing United Kingdom jurisprudence on the convention is preserved. The noble and learned Lord, Lord Hope of Craighead, memorably described it in the Queen’s Speech debate as embedded in our law like Japanese knotweed, an analogy so graphic that he should perhaps be forgiven its pejorative overtones. The Commission on a Bill of Rights established by the coalition Government was tasked with investigating the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights. The majority of the commission, including the Minister and my noble friend Lord Lester of Herne Hill, agreed that there should be a British Bill of Rights—although, as my noble friend pointed out, the Minister questioned the view that we should be committed to staying within the convention. The minority comprised the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands. They were concerned particularly that opening up this area might risk a reduction in the protection of human rights in this country. I share their concerns, and on these Benches we will be determined to ensure that any new British Bill of Rights continues to guarantee convention rights in United Kingdom law no less effectively than does the Human Rights Act.
If this proposal is to go ahead, we would like to see it as offering an opportunity to Parliament to entrench extra, distinctively British rights in a new Bill of Rights, as recommended by the Joint Committee on Human Rights in their 29th report in 2008. In the justice field, the right to trial by jury in serious criminal cases in England, Wales and Northern Ireland is fundamental. Would it not be fitting to mark the anniversary of Magna Carta by enshrining that right in a new Bill? We should also, I suggest, restate our commitment to administrative justice. The development of administrative law over recent decades has been one of the greatest achievements of the modern common law. Should we not therefore guarantee a right to administrative action that is lawful, reasonable and administratively fair? Such a right is entrenched in the South African constitution. We would also strongly support incorporating the United Nations Convention on the Rights of the Child in domestic law. At a time when mistreatment and abuse of children and their condemnation by government agencies has been the subject of such shame for some in this country, that step would mark our commitment to children in our society.
The consultation will provide an opportunity to consider incorporating fundamental social and economic rights, as the 2008 report of the Joint Committee suggested. Jurisdictions including South Africa, some in Scandinavia and some other European jurisdictions have done so. Fields which might be appropriate include healthcare, education and basic subsistence housing, subject to an “available resources” exception. In this way, I would hope that we might develop the Government’s proposals in a way which both meets the challenges facing human rights, presented by those who do not sufficiently value them, and defines and enshrines in law our commitment to many of the fundamental values that underpin our society. The fundamental point remains, however. On these Benches, we will oppose any attempt to reverse the incorporation of convention rights into domestic law.
My response to the noble and learned Lord, Lord Carswell, is that his solution of repealing the Human Rights Act while retaining the convention would involve limiting the citizens of this country to their remedies in Strasbourg, with all the expense and delay that that would necessarily involve. It would also remove the domestic courts and Parliament from their legitimate role in interpreting and enforcing convention rights within the United Kingdom. That role is preserved by the Human Rights Act, and Parliament and the courts are able to take their part in our system of human rights. That role is something which I suggest we should always preserve and cherish.
Lord Beecham (Lab)
My Lords, the maxim that the safety of the people is the supreme law has been with us for two millennia. It remains an essential obligation of government, not least at a time when the lives of innocent men, women and children are threatened by the brutal, indiscriminate violence of fanatics of whatever religious or political persuasion. But a society which prides itself on pluralism, democracy and freedom of speech and thought must balance the threat to its people and those core values against the impact of the steps it takes to protect them. External circumstances change with growing rapidity. Cicero’s maxim was written, no doubt, with stylus and ink. Today, give or take the odd political headstone, we are in the world of the internet, with social media and video imagery reaching millions within moments and with the capacity to inform or malign, shock, damage or incite. Inevitably, these massive changes raise difficult questions about the relationship between the citizen and the state, and between the state and those who would undermine these cherished values.
Britain’s record in this area has been creditable, and it is a matter of great regret that there are some who, in their anxiety to distance this country from Europe, misrepresent the impact of the European Convention on Human Rights, the European Court of Human Rights and the Universal Declaration of Human Rights. As we have heard, this country played a leading role in the drafting of the convention and the universal declaration, with both major political parties engaged—and, as the noble Lord, Lord Lexden, reminded us, with Sir David Maxwell Fyfe, by no means known for liberal views on most other matters, very much in the forefront.
In recent years there has been a relentless campaign to denigrate both the convention and the court, and to misrepresent their relationship to and impact upon our legal system. The Human Rights Act 1998 does not require our courts to strike down legislation, merely in appropriate cases to declare its incompatibility with the convention. As the Library Note reminds us, Parliament is not obliged to amend the law—a point made by my noble friend Lord Cashman and the noble Lords, Lord Lester and Lord Marks. The campaign against the convention and the ECHR, and the Government’s declared intention to substitute a British Bill of Rights, are rooted in a blinkered, partisan approach to fundamental issues which transcend national boundaries.
Consider the articles of the European convention set out with clarity in chapter 7 of Lord Bingham’s seminal The Rule of Law, a chapter which begins with the rubric:
“The law must afford adequate protection of fundamental human rights”.
He set them out: Article 2, the right to life; Article 3, the prohibition of torture; Article 4, the prohibition of slavery and forced labour; Article 5, the right to liberty and security; Article 6, the right to a fair trial; Article 7, no punishment without law; Article 8, the right to respect for private and family life; Article 9, freedom of thought, conscience and religion; and Articles 10 and 11, freedom of expression and of assembly and association. The noble and learned Lord, Lord Wallace, referred to some of those very important provisions.
Lord Bingham described how,
“the leading nations of Western Europe put their heads together to identify the rights and freedoms which they regarded as the basic and fundamental entitlement of those living in their respective countries”.
Writing five years ago, he said:
“Over the past decade or so, the Human Rights Act and the Convention to which it gave effect in the UK have been attacked in some quarters, and of course there are court decisions, here and in the European Court, with which one may reasonably disagree. But most of the supposed weaknesses of the Convention scheme are attributable to misunderstanding of it, and critics must ultimately answer two questions. Which of the rights discussed above would you discard? Would you rather live in a country in which these rights were not protected?”.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, touched on that theme.
Another dimension, which other noble Lords have referred to this afternoon, is the impact of the UK’s withdrawal on the rest of Europe—a Europe in which nationalism in an ugly form is manifesting itself again. Think of the treatment of Roma in some of the countries of eastern Europe or of the strength of the far right in Hungary. For too long, particularly in the last five years, Britain has failed to give a lead on many issues, including those we are debating today. That departure from the bipartisan traditions of half a century and more is to be deplored. The noble and learned Lord, Lord Wallace, my noble friend Lord Cashman and the noble Baroness, Lady Ludford, referred to this. It would be deplorable if Britain’s influence was not to be available to support those in the rest of Europe who very much need the protections which we are discussing today.
Dominic Grieve, the highly respected former Attorney-General, has pointed out that many of the 47 states contracted to uphold the convention have poor records on human rights and continue to face problems. He said:
“The decisions of the Court of Human Rights regularly centre on these states. They often relate to violations of basic rights, such as being beaten up in police cells, being denied access to a lawyer … in almost all cases the judgments are implemented … It has made the Convention one of the most effective global tools in improving human rights”.
He went on to criticise a Conservative paper advocating repeal of the Human Rights Act and an approach which would invoke human rights laws only in “the most serious cases”. Pointing out that most decisions have been taken by our own courts, he concludes:
“The effect will not be to free our courts from following Strasbourg decisions—something they are already doing … but of reducing their ability to apply Convention principles to individual cases”.
He describes that as “a recipe for chaos”.
To these strictures from such an eminent source must be added some observations from the Joint Committee on Human Rights published on 11 March. The committee drew Parliament’s attention to,
“the strikingly small number of declarations of incompatibility made by UK courts under the Human Rights Act during the lifetime of this Parliament, which confirms the significant downward trend in the number of such declarations since the Human Rights Act came into force in 2000”.
The report also welcomed the process of ECHR reform and the,
“increasing prominence … gradually being given”,
to the role of national parliaments,
“in scrutinising the implementation of Court judgments and … Convention compatibility”.
It went on to assert that the UK Government are,
“in a good position to provide strong leadership on this question”.
That of course would cease to be the case if the UK withdrew from it. Could the Minister indicate when the Government will be responding to the committee’s report containing these and other recommendations and observations?
There are of course matters other than the Government’s important, if deplorable, intentions toward the convention and court, which have been considered in this debate. One is the response to the report of Mr David Anderson, the Independent Reviewer of Terrorism Legislation, and his key calls for judicial oversight of all interception warrants and some communications data—a call backed by my right honourable friend the shadow Home Secretary Yvette Cooper—for a new law to comply with international human rights safeguards and for investigatory powers tribunal rulings to be subject to appeal on matters of law. Many of us will have noticed, with regret, the frigid response of the Home Secretary to the proposal for judicial oversight in particular.
We in your Lordships’ House will be debating the role of the Lord Chancellor next Tuesday. That will perhaps be a more appropriate occasion to welcome the arrival of a successor to Mr Grayling, but many of us will have read Mr Gove’s speech to the Legatum Institute with interest. In fairness, it was about reform of the justice system, but one might have hoped for a reference to some of the issues we are debating today, not least the topic of judicial review, a critical tool in upholding human rights and civil liberties—if I might venture a slightly critical note of the noble and learned Lord, Lord Wallace, I would say that the Liberal Democrats of course supported the late Government’s restrictions on judicial review—but also relevant to such matters as the conditions of our overcrowded prisons and asylum centres. Too often, they are an affront to human dignity and very much raise the issue of civil liberties and human rights. Could the Minister indicate whether the Lord Chancellor will conduct, in addition to the review of legal aid, a review into the changes to judicial review?
The House will be grateful to the noble and learned Lord, Lord Wallace, not only for his very distinguished service to the law—in particular in your Lordships’ House and as a member of the last Government—but for affording us the opportunity for this debate. On behalf of the Opposition, I thank all noble Lords who have contributed to it. I am sure that we are all very much looking forward to the Minister’s reply. I hope that the Government will reflect very carefully before proceeding with very substantial changes to the culture that has been built up in the last few decades, underpinned particularly by the Human Rights Act, in a way that would damage our system but also our reputation.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am very grateful to the noble and learned Lord, Lord Wallace of Tankerness, a former ministerial colleague, for initiating today’s debate. The subject is, of course, always of critical relevance but perhaps never more so than today, when we face challenges to civil liberties and the Government are faced with trying to balance civil liberties with the security of the nation. The debate has been instructive and thought provoking, graced by contributions of a very high standard. I have listened to all the contributions with care and would stress that the Government have a clear mandate on the question of the current legislative framework for human rights but nevertheless are currently very much in listening mode.
On that point, I am disturbed that the noble Lord, Lord Lester, received no response from the Lord Chancellor. I know that the Lord Chancellor is anxious to see as many people as he can and that, in fact, the noble Lord, Lord Lester, is on the list of those he would like to see. I cannot explain any administrative failing, but I can assure the noble Lord that he will be most welcome and that, if he could put up with the company of a couple of zealots, we would be happy to discuss these matters with him.
Noble Lords are aware that, as Minister of State for Civil Justice at the Ministry of Justice, I am responsible for representing the department and the Government in this House on the subjects of human rights and civil liberties. I share this task and responsibility with my ministerial colleague Dominic Raab. We are both equally committed to coming up with lasting solutions to meet the challenges which this responsibility entails.
Brief reference was made during the debate to the so-called snoopers’ charter, which is understandable, because we are shortly to have a debate on the report from David Anderson QC. I was on the pre-legislative scrutiny committee for the original draft communications data Bill, so I have some personal knowledge of the issues, which perhaps particularly illustrate the difficulties that a Government have in balancing individual privacy with security. I know that the Government are carefully considering David Anderson’s report and will have to consider how that balance is best reflected. It is a little unfortunate that the journalese expression “snoopers’ charter” has been so widely adopted. It demeans a very difficult argument that has to be undertaken by all those who care about these things.
The noble Lord, Lord Addington, mentioned vigilance over disability rights, and made some valuable points about the need not to characterise or mischaracterise those with disabilities—and how we as a Government, or any Government, should tread very carefully in this area.
In a debate involving the Liberal Democrats, it was perhaps no surprise that the noble Lord, Lord Roberts, mentioned the perennial subject of electoral reform, and the lack of a democratic mandate. Of course, what he said will be regarded by many as a valuable contribution to the debate, but I hope that he will forgive me if I do not go into a long response on questions of democracy.
I shall focus considerably on the question of the reform of the Human Rights Act, which has formed the bulk of the debate in your Lordships’ House. It is beyond dispute that the United Kingdom has a strong tradition of respect for human rights, which long predates our current arrangements. The Government are proud of that tradition and, in developing proposals for reform, will make sure that the tradition is not only maintained but enhanced. However, we take the view that all is not well with the current law in relation to human rights, and the Government were elected with a mandate to reform and, where appropriate, modernise the United Kingdom’s human rights framework. Therefore, we will bring forward proposals for a British Bill of Rights, which will replace the Human Rights Act. Our Bill will protect fundamental human rights, but also prevent their abuse and restore some common sense to the system.
We will consult fully on our proposals before introducing legislation. I hope that will be acknowledged around the House as an appropriately cautious way in which to proceed—not a sign of weakness or second thoughts but a sensible way in which to undertake reform of a major constitutional nature. I do not want to pre-empt that consultation, but it may be useful if I give the House some pointers to our current thinking, without prejudice to any final conclusion on what is or is not in the consultation. It is unfortunate that so many noble Lords make the assumption that any British Bill of Rights would contain rights that are “more restrictive” than those in the convention.
The Human Rights Act was passed shortly after the Labour Party won the general election in 1997. As a number of noble Lords observed, it was a very clever piece of draftsmanship. The narrative was that the Act would bring rights home, obviating the need for a trip to Strasbourg by UK citizens. There was much speculation about what the impact of the Human Rights Act would be on our law domestically; many thought that the effect would be marginal. In fact, there is virtually no aspect of our legal system, from land law to social security, to torts and consumer contracts, that has not been touched to some extent by the Human Rights Act.
The noble Lord, Lord Cashman, in his passionate speech said that the Act had worked magnificently—and certainly I would not quarrel that there have been good decisions influenced by it. But he should not, and the House should not, underestimate the capacity of the courts before the Human Rights Act and the capacity of the court of Parliament to protect human rights by showing an ability to pass new legislation to develop the common law. This Parliament passed the Modern Slavery Act and the previous Government passed the equal marriage Act. One issue about equal marriage was whether there would be difficulties with Strasbourg if the Act came into force. So we should not underestimate what this country has in its capacity to protect human rights.
Many lawyers are very enthusiastic about the Human Rights Act. I have to say that my own experience as a practitioner does not make me an unequivocal supporter of it. As a barrister representing public authorities, I saw the incursion of human rights law into the fields of social services, education and police investigations. It contributed a great uncertainty to the law, and I am afraid that I am not persuaded that it resulted in any real improvement in the protection of fundamental rights. It certainly resulted in a great deal of additional expense in areas where budgets were already tight. But whatever views might be taken of the effects of the Human Rights Act—and I do not want to embark on a litany of cases for and against; views can reasonably diverge—I think it would be accepted that the Act has not endeared itself to the public generally. That was one conclusion that the commission reached. Not all of this is the fault of the tabloid press; the problems with Abu Qatada and others, prisoner voting—on which there can reasonably be different views—and some of the frankly trivial claims have not helped.
Lord Lester of Herne Hill
The Minister and I were on that commission. Is it not right that our report, which I have here, showed that there was overwhelming support for the Human Rights Act in Scotland, Wales and Northern Ireland, and among those who answered our two consultations?
Lord Faulks
I am grateful to the noble Lord, and of course I shall come to the question of Northern Ireland and Scotland in due course. There were two consultations, of which the Government will take account, along with their own consultation, to enable them to form the fullest picture possible of the way forward.
Section 2 of the Human Rights Act, as noble Lords have correctly observed, requires courts only to take into account the Strasbourg jurisprudence. As the noble and learned Lord, Lord Carswell, frankly admitted, the superior courts—the Supreme Court and the Court of Appeal—went rather further than simply taking into account the Strasbourg jurisprudence. I think that it is now generally acknowledged that the Ullah case involved a wrong turning. As noble Lords have said, it is true that something by way of a dialogue has ensued. It is also true to say that the Supreme Court has shown something of a retreat or modification of its approach to Section 2. None the less, there is need—there may be some general agreement on this—for clarification. The Strasbourg court should not be demonised, as some of its decisions would continue to be useful, whatever our precise relationship with it, but it may not be the only source of wisdom. We should not pivot entirely off the Strasbourg court when there are useful decisions elsewhere in the world—and, of course, it should not impede the development of the common law as it has always developed.
The convention was drafted, as has been said, by Conservative politicians, and is a remarkable achievement in itself. To encapsulate human rights is perhaps a philosophical task, but I do not think the Government have a difficulty with how they are expressed—it is, of course, only in their interpretation. However, the convention must be seen in the context in which it was drafted, in the aftermath of the Second World War, just as the Magna Carta, so much commented on, must be seen in its particular historical context.
I should make it clear, in answer to a number of questions, that it is no part of our plans to leave the convention. The noble and learned Lord, Lord Brown, referred to the number of cases that he had lost, no doubt having valiantly argued them for the Strasbourg court. When our British Bill of Rights becomes law, as I hope it does, there will still no doubt be some cases before Strasbourg and the successor to the noble and learned Lord, Lord Brown, may achieve better or worse results.
The Prime Minister, in his speech at Runnymede—
Lord Wallace of Tankerness
The Conservative manifesto also said something about curtailing the role of the European Court of Human Rights. Could the Minister, for the benefit of the House, elaborate on what was meant by that part of the manifesto?
Lord Faulks
I am reluctant to say very much more, for the very reason that we have an open consultation. I think I have made it clear that our minds are not closed on this. Earlier in my comments I referred to Section 2, and that particular provision, and its relationship with the Strasbourg jurisprudence. That is a matter that will be considered carefully as part of the consultation for reasons that a number of noble Lords have given.
The Prime Minister made this comment during the celebration of Magna Carta:
“Magna Carta takes on further relevance today. For centuries, it has been quoted to help promote human rights and alleviate suffering all around the world. But here in Britain, ironically, the place where those ideas were first set out, the good name of ‘human rights’ has sometimes become distorted and devalued. It falls to us in this generation to restore the reputation of those rights—and their critical underpinning of our legal system”.
We want our human rights law to be fair and just and to regain public confidence. We intend that a British Bill of Rights will be a positive response to the challenges facing the culture—the subject of the debate—of human rights and civil liberties in the United Kingdom.
It is not just a question of this Government believing this needs to be done. Previous Administrations seem, by what they have said, to have reached similar conclusions, but then have, for one reason or another, failed to follow matters through. During an appearance on the BBC in May 2006, the noble and learned Lord, Lord Falconer of Thoroton, said about the Human Rights Act:
“We all agree about liberty, about the right to life, the right to privacy, those issues. And the problem is not a subscription to those rights, it is how it operates in practice”.
The last Labour Prime Minister, the right honourable Gordon Brown MP, in July 2007 said in the other place,
“it is right to involve the public in a sustained debate about whether there is a case for the United Kingdom developing a full British Bill of Rights and duties”.—[Official Report, Commons, 3/7/07; col. 819.]
Talking to the BBC later the same year in October, he said:
“Jack Straw is signalling the start of a national consultation on the case for a new British Bill of Rights and Duties…This will include a discussion of how we can entrench and enhance our liberties— building upon existing rights and freedoms but not diluting them—but also make more explicit the responsibilities that implicitly accompany rights”.
He said that on BBC News on 27 October 2007.
I also refer the House to comments made by the noble Baroness, Lady Falkner, in May’s edition of Prospect. She said:
“Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken … A British Bill of Rights is a good idea”.
A majority of the commission on a Bill of Rights thought the same. I served on that commission, as the noble Lord, Lord Lester, said. He was part of the majority. I would not claim for a moment that our reasoning was precisely the same, but the conclusion that we reached was identical.
Many other countries, within the Council of Europe and outside, have their own equivalent of what we will have in a British Bill of Rights. I hope that by engaging in a proper consultation on our proposals for how the United Kingdom’s human rights framework should be reformed we will be able to identify many points of agreement across the whole political spectrum, including with more members of Her Majesty’s Opposition. It has quite rightly been said, I think by the noble Baroness, Lady Ludford, and others, that at various times different political parties have varied enthusiasms for a British Bill of Rights. We intend to try to produce a Bill of Rights that can produce real consensus across the parties.
The noble and learned Lord, Lord Wallace of Tankerness, no doubt had an eye on devolution when tabling this Motion for today’s debate. Certainly, since the election and since the debate about the shape of the future human rights framework has begun in earnest, it has been repeatedly raised as an apparently intractable issue that will stump any reform and of which the Government are currently unaware. The Government are fully alive to the devolution dimension, and we will consider the implications of a Bill of Rights for devolution as we develop our proposals. I think the noble and learned Lord will understand if I do not comment on meetings that the Secretary of State has, or on discussions, but I assure him and the House that we will fully engage with the devolved Administrations and the Republic of Ireland in view of the relevant provisions of the Belfast, or Good Friday, agreement. I heard what my noble friend Lord Lexden said in that regard.
It is important to emphasise that the United Kingdom’s international obligations neither begin nor end with the European Convention on Human Rights, a point underlined by the fact that, as we debate here today, a team from the United Kingdom is being questioned about our country’s performance against the commitments we have signed up to in the United Nations International Covenant on Civil and Political Rights. Whatever form the Bill of Rights finally takes, the Government have no intention to resile from its many other international obligations, such as those arising under the United Nations convention against torture, which prevent removal of a person to another country,
“where there are substantial grounds for believing that he would be in danger of being subjected to torture”.
We were not a lawless country before 1998. We will not be in the future. We will comply with our many international obligations.
I am sorry that the position of those in my party was compared to Syriza by the noble Baroness, Lady Ludford. We have been described as zealots by the noble Lord, Lord Lester, who has previously described the position that we take as being part of the Tea Party tendency in the Conservative Party. Worst of all, he accused me the other day of being a Eurosceptic. None of those things I believe to be true.
I am grateful to noble Lords who have spoken in this debate and to the noble and learned Lord, Lord Wallace, for calling it. Much of what has been said has been extremely valuable. I hope the debate, both formally and informally, will continue. Much of what has been said will help to influence what the Government decide. I am glad that my noble friend Lord Lexden reminded us that the originator of “one nation” was Stanley Baldwin, not Disraeli, as is so often thought. “One-nation government” is a phrase that has been bounced from one side of the Chamber and possibly beyond recently. We intend to govern as a one-nation Government. This British Bill of Rights will, I hope, be quintessentially a one-nation document, including all the parts of the United Kingdom and, so far as possible, the agreement and consensus obtained from all the parties. I am grateful for all contributions. I know this debate will continue.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have contributed to this worthwhile debate. We have had the benefit of historical perspectives from the noble Lord, Lord Lexden, and some very keen legal analysis from my noble friends Lord Lester and Lord Marks and the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Carswell, while practical issues, particularly disability rights, were raised by my noble friend Lord Addington. We heard a very passionate speech from the noble Lord, Lord Cashman, which brought home the real personal meaning of rights for many people. Those who heard the noble Lord’s speech will remember it for some time to come. He reminded us that one of the important issues about rights is that they are often about trying to protect minority interests against what is sometimes referred to as the tyranny of the majority. Some of the case examples given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, showed how majority interests can sometimes ignore minority interests.
I listened carefully to what the Minister said. I am very grateful for what he said about consultation and the invitation from the Lord Chancellor that will be speeding its way to my noble friend Lord Lester. He made a number of points. He said that there is a willingness to consult. That is a far cry from some of the rhetoric at the time of the election and beforehand. If he wonders why there is concern that rights are going to be restricted, it is because of the kind of rhetoric that has driven this, and we are right to be vigilant. He talked about enhancing rights. My noble friend Lord Marks of Henley-on-Thames gave him a wide range of additional rights that could be added.
The Minister gave a very clear indication that there is no intention to leave the convention. I think that answers the question my noble friend Lord Lester asked about whether that had been qualified by Ministers in the other place saying that everything is on the table. He seems to have made it very clear that leaving the convention is not on the table, which is welcome. I take the point he made about having regard to the devolved Administrations. We look forward to making our contribution to any consultation that takes place. As I indicated in my opening remarks, we will be extremely vigilant because there are very important rights that have been used in so many practical ways and we do not wish to see our standing as a country that upholds the torch of human rights being diminished.