European Convention on Human Rights

Baroness Hayman Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Irvine of Lairg]

My Lords, my purpose is to dispel some of the many myths peddled about human rights. In fact it is the Conservative Party, not Labour, that can make the strongest claim to credit for the European convention. Its main proponents were Churchill, Macmillan and John Foster, with some Liberal and Labour support. Its principal author was David Maxwell Fyfe, the future Conservative Chancellor, Viscount Kilmuir. The convention was substantially the work of British jurists within a tradition going back to the Petition of Right of 1628 and our own Bill of Rights of 1689.

Britain became the first state to ratify the convention, on 8 March 1951, yet it was not until December 1965 that the then Government accepted the right of individual petitions to the Commission and the compulsory jurisdiction of the European Court of Human Rights at Strasbourg. Then for a long period, until 1993, both major parties were united in rejecting incorporation of the convention into our domestic law. That in itself was extraordinary, because it meant that our citizens could not argue for their convention rights in our own courts but had to take the long and expensive road to Strasbourg.

Then came the late John Smith’s seminal Charter 88 speech on 1 March 1993, committing Labour in government to incorporate. That translated into a 1997 manifesto commitment, and the Human Rights Act 1998, which began its parliamentary progress in this House, followed. Its purpose was to bring home to be enforceable in our own courts the rights contained in the convention. Our courts are of course closer to the traditions of our society, and through their judgments they can make a distinctive British contribution to the development of Europe-wide human rights laws.

To Conservative critics of the Convention and the Act, I recommend the recent short study by Norman and Oborne, Churchill’s Legacy: The Conservative Case for the Human Rights Act. They detail the history and debunk the myths. They emphasise that,

“A large element of the selling power of some British newspapers depends on their ability to break stories about the private lives of celebrities”,

and conclude that,

“it is unlikely that reform of the HRA would be on any political agenda, were it not for the potent advocacy of the most powerful media groups in the country”.

In Chapter 4, “Dispelling the Myths”, they accuse the media of a culture of deception about the Act since the media believe that they have an interest in its destruction because of its protection of privacy in Article 8:

“Any politician who denounces the HRA, however incorrectly, is generally guaranteed a round of applause from the press”.

They say that a politician who argues the contrary, “tends to get pilloried”.

Among the most controversial recent cases are those where the courts have granted injunctions to prevent the press publishing details of the private lives of celebrities. The Prime Minister himself has entered the fray, on the side of the press. Unsurprisingly, he has secured a good press. He said that the judges were creating a privacy law, whereas what ought to happen in a parliamentary democracy is that Parliament should decide,

“how much protection we want for individuals and how much freedom of the press”.

Essentially, the charge is that the judges are usurping the role of Parliament. This is either ingenuous or disingenuous; your Lordships can decide which.

There are two straightforward answers to the charge. First, the judges are under instruction from Parliament in the HRA to balance the right of respect for the claimant’s private and family life against the right to freedom of expression in Article 12, and of course the judges obey. The scales are weighed in favour of freedom of expression because the Act requires the courts to have particular regard to its importance. No other right is given this privileged status. We should remember that in those cases it is often not only the Article 8 rights of celebrities that are at stake but also those of innocent third parties, including children. There is typically no significant public interest in the disclosure of the peccadilloes of actors, footballers or reality television contestants, although that helps to sell newspapers. A prurient interest does not equate to a legitimate public interest. The weight that the courts give to freedom of expression is strongly illustrated by the recent Strasbourg ruling in Max Mosley’s case in favour of the media.

The second answer to the charge is that the Government could introduce tomorrow a freedom of expression and privacy Bill compatibly with the convention if they took their courage in both hands. Members of the other place would undoubtedly show huge interest in such legislation, equalled no doubt only by the inevitable wrath of the tabloids—so your Lordships should not be in the least surprised if no such legislation is ultimately brought forward. Far easier to go on berating the judges, however unfairly, for doing what Parliament has instructed them to do than to take the knock of legislation oneself.

I should not leave this subject without emphasising that the media have gained greatly from the convention and the Act: enhanced protection for journalistic sources; a dramatic reduction in the level of libel damages; and the right to report on a much wider range of court proceedings. However, I emphasise that when impartial courts hold the balance between privacy and freedom of expression, the media cannot expect to have it all their own way.

I move to another recent controversy—votes for prisoners—where misconceptions also abound. We have clear primary legislation in Section 3 of the Representation of the People Act, which prevents convicted prisoners being registered to vote. No other interpretation of Section 3 is possible. Although Section 3 was declared incompatible with the convention by the courts, voting claims brought by prisoners under the HRA were rejected on the grounds that Section 3 was clear and the sovereignty of Parliament must prevail. All that the European Court held was that our blanket ban should be reconsidered. However, as a result of the HRA, it will be reconsidered in the proper forum: Parliament.

Your Lordships should know that our blanket ban has put us out of step with a clear majority of the other states in the Council of Europe, most of whom, including Germany, France, Italy, the Netherlands, Portugal and Spain, allow some or all of their convicted prisoners to vote. In that context, it is surprising that the Prime Minister went as far as to claim that he felt physically ill at the prospect of giving the vote to prisoners. All that was held at Strasbourg was that the blanket ban was disproportionate because it applied irrespective of the length of the sentence or the gravity of the offence, and without regard to whether the prisoner had completed that part of the sentence relating to deterrence and punishment. At any rate, it is now up to Parliament, which will want to consider whether some opportunity to participate in democratic elections could help prisoners’ restoration to the mainstream of society.

Another example is the sex offenders register, a subject on which the Prime Minister and his Home Secretary have become so choleric that your Lordships should worry for their peace of mind. The antidote that I would prescribe is a strong dose of rationality. The Supreme Court recently considered statutory provisions that imposed on certain sex offenders lifelong notification obligations to inform the police of their whereabouts or foreign travel plans. The basic point was that they could not even apply for their names to be removed from the register, regardless of the rehabilitation that they might have achieved over many years. The Supreme Court made a declaration that the provisions were incompatible with the convention in the absence of a procedure that allowed an individual to apply to be taken off the register. It would be for Parliament to determine the criteria for success, when an application could first be made and who would decide. Alternatively, the Government are free, under the Act, to do precisely nothing, wait to see if it is taken to the Strasbourg court, and argue there why any review would always and for ever be inappropriate.

The Prime Minister and his Home Secretary joined in telling Parliament how appalled they were by the decision, with the Prime Minister adding that the decision was completely offensive and flew in the face of common sense, while the Home Secretary questioned its sanity. However, all that the judges were doing was applying the law. Surely, this intemperateness must stop. Respect for the rule of law underpins our democracy. That respect is not a commodity to be marketed away for perceived short-term political advantage. When it is, Ministers undermine respect for the rule of law and diminish both themselves and our democracy.

I greatly look forward to the reply of the noble Lord, Lord McNally, to this debate. On 18 March, the Ministry of Justice announced the establishment of an independent commission to investigate the case for a UK Bill of Rights. Its terms of reference follow the language of the coalition agreement—namely,

“to investigate the creation of a British Bill of Rights that incorporates … all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties”.

So, the European Convention will continue to be a guaranteed floor, but not a ceiling, for the protection of human rights in Britain. I congratulate the noble Lord’s party on these terms of reference. The commission provides an excellent opportunity for his party to put—if this is the correct expression—clear blue water between themselves and their coalition partner. I invite him to take this opportunity to confirm that the continued incorporation of the European convention rights into our domestic law is non-negotiable. I beg to move.

[The Lord Speaker (Baroness Hayman)]

The Question is that this Motion be agreed to.

[Lord McCluskey]

My Lords, before the noble and learned Lord sits down, will he comment on the matter of the judges doing what Parliament instructed them to do? He will recall—

[Baroness Hayman]

The Question has been put. We are now into the debate. The noble and learned Lord could, of course, speak in the gap if necessary, if he is not on the speakers’ list.

Public Bodies Bill [HL]

Baroness Hayman Excerpts

Monday 28th March 2011 Lords Chamber

[Lord Warner]

My Lords, I rise to move the amendment in my name and those of the noble Lords, Lord Ramsbotham and Lord Elton. The right reverend Prelate the Bishop of Ripon and Leeds intended to add his name to the amendment but just missed the deadline for the Marshalled List. I am sure that the House will want to hear his views on this matter at a later stage.

Across the Benches Members of this House are saying that the Government are wrong to seek the abolition of the Youth Justice Board. The same position appertained in Committee, with no speaker supporting the Government and five former Ministers, including three from the coalition Benches, saying that the Government were wrong about this. I will not repeat all the arguments made in Committee other than to remind the House that a series of independent reviews have said that the Youth Justice Board has done a good job, with the PAC recently saying that there was no foundation to the Government’s case for abolition.

The nub of the Government’s argument is that the YJB has done its job and youth justice can be left to local youth offending teams and Ministry of Justice civil servants and Ministers. The five former Ministers made it clear in Committee that leaving this specialist programme delivery work to generalist civil servants who move from job to job carries no credibility in terms of good government. Depending on locally financed YOTs, unaided at this time of severe financial retrenchment, is a recipe for youth justice sinking once again to the bottom of the pile, in terms of priorities, which is why the Youth Justice Board was set up in the first place.

Since the Committee stage, four of us—the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Linklater, the noble Lord, Lord Elton, and myself—had a meeting with the Minister and his colleague, Mr Crispin Blunt, who is responsible for youth justice matters. It would be a masterpiece of understatement to say that this was not a meeting of minds, despite the best endeavours of the noble Lord, Lord McNally, who, throughout this sorry saga, has tried to retain a balanced and helpful stance. Particularly worrying has been the absence of any sensible ministerial response to the incisive questioning of the noble Lord, Lord Elton, on why ministerial powers under the Crime and Disorder Act 1998 for holding the YJB to account are insufficient for discharging ministerial responsibilities to Parliament and the public.

In Committee, I teased the noble Lord, Lord McNally, about falling into bad company. I have to say that the more I learn of the Government’s thinking on this issue, the more it seems not unlike the stories of Richmal Crompton in Just William and the Black Hand Gang. It is at about that level of intellectual competence. In Committee, several Members set out the YJB’s success in reducing reoffending and the entry of juveniles into the criminal justice system. Since then, new figures on reoffending have been placed in the public arena. They show a further reduction in the number of juvenile reoffenders by 0.4 per cent in one year between 2008 and 2009—a number that continued in that downward trajectory throughout 2009.

Alongside these achievements, the YJB has significantly cut the number of young people going into custody. The board’s abolition puts all this at risk. Given my considerable experience in this area, I say that the abolition of the YJB is likely to mean an increase in the number of young people being placed in custody unnecessarily—at great cost to the taxpayer and likely damage to young people.

The Government have totally failed to make the case for the abolition of the YJB and we should ask them to think again by passing the amendment. That is my overwhelming preference, and it is in the best interests of vulnerable young people and of the public purse. However, if it turns out that we are unable to achieve this, the second amendment in the group, Amendment 21B, becomes important, because it prevents the YJB’s functions disappearing into the maw of the Ministry of Justice and, probably in reality, into the maw of NOMS, without any clear focus on youth justice issues. Having a separate agency with two independent non-executives is better than any ministerial warm words, particularly when one realises that the Ministry of Justice has accepted this model for prisons and the Courts Service. We should retain the Youth Justice Board and its name should be removed from Schedule 1. I beg to move.

[The Lord Speaker (Baroness Hayman)]

I have to inform the House that if the amendment is agreed, I cannot call Amendment 21B, by reason of pre-emption.

[Lord Ramsbotham]

My Lords, I rise to speak to the amendment and to echo what the noble Lord, Lord Warner, said about Amendment 21B. I am conscious that one cannot repeat arguments made in Committee. I, too, remember the remarkable unanimity around the Committee.

I am grateful, as before, to the noble Lord, Lord McNally, for the efforts he made to continue the discussion. I am only sorry that I could not attend that meeting, but from what I have heard about it, and from a letter that the Minister wrote to the noble Lord, Lord Elton, which I hope he will forgive me for quoting, I believe that what is at the heart of the Government’s proposal is a fallacy that for years has influenced the consistent failure of the criminal justice system—namely, that policy and operations are one and the same thing, rather than one being the practical deployment of the other. This was brought home to me when a senior official told me that she wished that I would stop talking about strategy. “We don’t need strategy; all we need is strategic direction,” she said. I asked what that meant. “Top down, of course,” she said. That is nonsense. Having something said from the top down does not make it either strategy or strategic direction.