Human Rights Act 1998

Baroness Ludford Excerpts

Thursday 14th July 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I also thank the noble Baroness, Lady Whitaker, for this important debate. I am delighted to see the noble and learned Lord, Lord Mackay of Clashfern, in his place after the jollifications of last night when he so generously invited us all to his party. He has obviously got great stamina.

I am most grateful to the organisations that have sent us material: the British Institute of Human Rights, Amnesty, Liberty and one new to me which has the apt acronym of POhWER—People of Hertfordshire Want Equal Rights, equal rights being very much the theme of this debate.

The European Convention on Human Rights and the Human Rights Act have enabled many ordinary people in this country to secure their rights in many sectors and aspects of their daily lives. This is a very different narrative to that pushed by some politicians and commentators, mainly but not all on the right of politics, who have spent years criticising and misrepresenting the convention, the Strasbourg court—which gets confused with the EU court, deliberately or negligently—and the Human Rights Act, which incorporated the convention into UK law.

These human rights instruments have been demonised as benefiting only criminals, illegal immigrants and the generally undeserving. That accounts for the distasteful provisions in the Bill of Rights whereby human rights have to be earned and are contingent on conduct, undermining the principle that rights are universal and attached to a person by virtue of their humanity.

This debate is a welcome chance to redress the score and acknowledge the myriad ways in which human rights provisions protect all of us. Over the past two decades the HRA has given individuals a mechanism to enforce their rights in practice, challenge unlawful policies, be treated with dignity by public authorities and to secure justice for their loved ones. It has ushered in—not least through the positive obligations provision that the Bill of Rights will undermine—a culture of respecting human rights in hospitals, schools, care homes, local government, housing providers and the criminal justice system, helping to ensure that people who may be vulnerable are given the support they need to flourish and thrive.

Most recently, the Government whinged mightily about the interim measures—a sort of injunction—from the European Court of Human Rights to put a hold on Rwanda deportation flights until the UK courts substantively determine their legality. Similar interim measures have also been served on Russia—which is still subject to the jurisdiction of the court for another couple of months, even though it has been expelled from the Council of Europe—to stop the executions of the two British prisoners of war it is holding.

In fact, the Human Rights Act has provided justice and accountability for soldiers and their families in several ways. The noble Baroness, Lady Whitaker, mentioned the case of Corporal Anne-Marie Ellement. I would also mention the families of the 37 military personnel who died in Snatch Land Rovers, dubbed “mobile coffins’” as they were so unsuited to and unsafe for this role, in the Afghanistan and Iraq conflicts. The families used the HRA to challenge the Government and in 2013, the Supreme Court ruling that soldiers do not lose their rights when fighting overseas prompted an apology from the Ministry of Defence and a commitment to no longer use them.

In its inquiry on protecting human rights in care settings, on which the Joint Committee on Human Rights is about to report, our committee heard examples of people being cared for turning to the ECHR to seek respect for their needs through Article 2, on the right to life; Article 3, on protecting against torture and inhumane or degrading treatment; and Article 5, on the right to liberty and security. As I do not have time to discuss it further, I invite all noble Lords to read the report, which is about to be published.

An example not from the JCHR but from the British Institute of Human Rights is that of Kirsten, a mother who used the HRA to challenge inhuman and degrading treatment of her autistic son, who was held as a teenager in mental health hospitals under the Mental Health Act. He was subjected to mechanical restraint such as metal handcuffs, leg belts, being transported in a cage and long periods in a seclusion cell. As Kirsten said:

“My child was not a criminal, he was in distress, frightened and alone.”


She used the Human Rights Act to get meaningful change to her son’s care and treatment.

I have time only to mention that, in the criminal justice system, it was the Human Rights Act that enabled the victims of serial “black cab rapist” John Worboys to hold the police to account for their failures to investigate him. There are many other examples.

This rapid canter has, I hope, helped to demonstrate the relevance of human rights law to all the ordinary people of this country. I regret that the Government have refused to allow pre-legislative scrutiny on the Bill of Rights Bill, so that Parliament could expose its myriad flaws. Indeed—this is now public because the JCHR has published its letter—the Lord Chancellor has cancelled his agreed 20 July appearance before the Joint Committee on Human Rights to answer questions on the Bill. I hope we will at least get another date.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for the patience and courtesy with which he is responding to this debate, but I am concerned about one very important element. The Minister said that the Government’s position is that we stay in the ECHR and that we are committed to it; that is the Government’s position, which cannot be overturned by a leadership candidate. But what if that candidate happens to be the current Attorney-General of England and Wales and legal adviser to Parliament and the Cabinet? That is not any old candidate, is it? Ms Braverman surely speaks for the Government, as their Attorney-General. In due course, would the Minister address my question about all these recent powers in the police Act, Nationality and Borders Act and so on, which were justified to us from that Dispatch Box by Ministers who said, “Don’t worry: there is the Human Rights Act as the safeguard, and these powers will have to be exercised in a manner compatible with that”.

[Baroness Ludford (LD)]

In further testing the patience of the Minister, and no doubt the House, does he really think that the constant repetition over decades of certain politicians and sections of the press that it was only undesirable people who were getting the benefit of human rights law—criminals and whoever—has had no effect whatever? That and the lack of civic education in schools about the benefits of the Human Rights Act has helped us arrive at this situation. Perhaps there is only a slight silver lining to the pandemic, which otherwise, obviously, has been horrible: that while not being able to visit their relatives in care homes, some people might have realised or had perhaps a glimmer of understanding of the relevance of human rights to protect family life, the right to life and all those other issues.

[Lord Bellamy (Con)]

To take the question from the noble Baroness, Lady Chakrabarti, about the Attorney-General first, we seem have a somewhat unusual constitutional position here. It appears that the convention that all government Ministers speak collectively on behalf of the Government is de facto in suspense when there is a leadership contest going on. I am not really able to comment any further, except to say that it is a very curious position that has arisen. If I may, I will leave that point there.

On the general question of where all this disquiet comes from, I would say that this issue is not new. In 2008, Jack Straw, the very Home Secretary who introduced the Act, commented that it did not seem to have a very good balance between rights and responsibilities. There is no greater doughty fighter for liberty in this House than the late Lord Lester of Herne Hill, who favoured a domestic Bill of Rights. A number of retired judges—Lord Sumption, to mention only one—have expressed concerns. The Brighton declaration, which was effectively brought about by the United Kingdom under the chairmanship of the noble and learned Lord, Lord Clarke of Nottingham, and assisted by my predecessor, the noble Lord, Lord McNally, to whom I also pay tribute, was intended to address this question of exactly how the margin of appreciation and doctrine of subsidiarity worked. It has now taken 10 years for even that modest step to finally come into force. So it is not accurate to say that there have not been rumblings in the background about this Act. The Government’s purpose is to try to put the existing Act on to a better footing.

On the important points that have been made in relation to Scotland, Northern Ireland and Wales, it is perfectly accepted that the relevant consents of the devolved Administrations should be sought. We are particularly concerned about the position in Northern Ireland and to make sure that, so far as possible, all those concerns can be satisfied. I am embarking on discussions with the various devolved Administrations in that regard. They do not agree with the Government at the moment; we shall see how we get on, but that is the position and we are well aware of that problem. The convention rights remain embedded in all the devolution enactments. It is certainly the Government’s position that what is being put forward is compatible with the Good Friday agreement and that the suggestions in this Bill of Rights do not in any way put the United Kingdom in any breach of its international obligations.

To sum up, once the tumult and the shouting die down, the fact is that the UK remains in the convention. We are taking action to restore or enhance public confidence in the existing framework, to strengthen free speech and associated rights, and to have an open debate about the balance between elected power on the one hand and judicial power on the other. The noble Baroness, Lady Whitaker, referred to Pip in Great Expectations. I am sure that Nicholas Nickleby, David Copperfield and Oliver Twist would have greatly welcomed a Human Rights Act had it existed at that stage of the 19th century. I commend to the House the Government’s expectation that this Bill will produce a better balanced and enhanced respect for human rights than is currently the case.