Human Rights in the UK

Joanna Cherry Excerpts

Wednesday 13th February 2019 Westminster Hall

[John Howell (Henley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Gapes, and a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard), who is a fellow member of the Council of Europe. I understand and agree with a lot of what he said.

The European convention on human rights has been around since the early 1950s, and it is worth remembering that it was 1965 when we agreed to abide by the decisions of the European Court of Human Rights in the UK. We have had almost 60 years of a relationship with the European Court of Human Rights and its decisions.

I start by making the point that the convention is not the same as the Human Rights Act, and the European Union is not the same as the Council of Europe. The two are very different and we should take them as such. I have a lot of time for the convention, and I agree with much of what the hon. Gentleman said about it. I was particularly irritated during the referendum campaign that a lot of people got the ECHR confused with the European Court of Justice. The two are completely separate. One is owned by the European Union and the other by the Council of Europe.

I would go on to say that the single biggest contribution to peace in Europe since the end of the second world war has come from the European convention on human rights, together with the work that NATO has done. We should state that, and we should be proud of it, because we have been very much involved in it from the beginning. As the hon. Gentleman and I know only too well, the European Court of Human Rights comes with a democratic mandate. I imagine the hon. Gentleman spends a lot of time, as I do, voting for the judges who are nominated to sit on the European Court of Human Rights. That gives democratic control and is also a means of reflecting, to some extent, the mixture of politics, competence and a whole number of other matters that give the European Court of Human Rights its character.

I am not as enamoured of the EU’s involvement with human rights, which I think has created a very mixed picture. If I am not using the term wrongly, I think that the European Union has tried to steal the mandate of the Council of Europe, which applies to almost twice the number of countries as the EU does—that is where a large part of its strength lies. The relationship between the EU and the European Court of Human Rights is something that we are still debating at the Council of Europe.

UK involvement with the European Court of Human Rights has been a huge success story. It has been a very good illustration of how human rights overall are doing quite well in this country. I do not agree with the hon. Gentleman on the need to extend those human rights to matters such as housing. That is a route to socialist involvement in the running of this country that I do not agree with, and would steer clear of.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Gentleman recognise that there are countries across the world, such as South Africa with its new constitution and some Nordic countries, that have a right to adequate housing in their constitutions? Does he consider those to be socialist countries?

[John Howell]

When the EU decided to bring out its own human rights framework, it thought very carefully about what should be included, and it differs from the European Court of Human Rights on only a few exceptions.

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[Alex Chalk]

That is right, and there are areas where there has been a greater role for it. However, I want to slay the myth that people are routinely invoking Human Rights Act points to seek remedies that are not otherwise available in the legislation. There are examples of that, but they are by no means the norm. The convention is important because it provides an important safety net at a time particularly of national stress and crisis. We know that in the case of a terrorist atrocity, the cry immediately goes up that the state must act ever more robustly, often impinging upon individual liberties. Sometimes that is the right judgment to make, but equally it is critically important that any measures that the state proposes are viewed through the prism of what we see as keenly won liberties. It is not just a British phenomenon.

If one thinks of the United States in the second world war, one of the episodes of which it has now the most shame was the internment of Japanese Americans at a time of national stress. But our country is not immune to it. In the aftermath of September 11, there was legislation in the UK that people will remember: part 4 of the Anti-terrorism, Crime and Security Act 2001, which was used by the then Government to effectively hold people without charge. That ultimately was challenged in the European Court of Human Rights and the Court ruled that that was unlawful because it breached article 5. Again, it seems that that provides a useful safety net.

[Joanna Cherry]

In my lifetime, members of the Catholic community in Northern Ireland were interned without trial, with quite some impact on family life. Does the hon. Gentleman agree that that is something that the ECHR has made a big difference to in the United Kingdom? As a result of our membership and its applicability through the Human Rights Act, it now would not be possible to intern without trial in the UK.

[Alex Chalk]

It is an important point and we must recognise that because—as is necessary in a democracy—we listen to our constituents and reflect their concerns, this House will always have a tendency to react in a very public way to what is perceived as a public need; but it is not wrong that there should be a check to that and a requirement for us sometimes to pause for thought.

In so far as we give great power to the courts—and to the European Court of Human Rights, through the convention—it is also right that they should exercise necessary discretion, and I respectfully suggest that there have been examples of their straying beyond their natural area of competence. The most obvious example is Hirst, when article 3, which of course prohibits torture and “inhuman or degrading treatment”, was relied on to rule that the British Government were in error in saying that prisoners could not vote. A number of people might think that that had gone too far, and that there had not been appropriate respect for the principles of subsidiarity and the margin of appreciation. I will not go into that now, but there is certainly a case for saying that the Court should tread carefully—and I invite it to do so. I say that because what the Court does, and the rulings that it provides, overwhelmingly contribute to human rights in this country and to the quality of our public discourse and democracy. It would be a crying shame if unfortunate judicial activism were to put that at risk.

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[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Gapes. I congratulate my hon. Friend the Member for Edinburgh East (Tommy Sheppard) on securing the debate. We have had diverse contributions, from the hon. Members for Henley (John Howell), for York Central (Rachael Maskell), for Strangford (Jim Shannon), for Cheltenham (Alex Chalk) and for Edmonton (Kate Osamor). I was particularly interested in the concept of the human rights city, which I was not aware of. I shall look at that as something that Edinburgh might think about. I was also pleased that the hon. Member for Edmonton mentioned the report and findings of the UN rapporteur on poverty. We should bear that in mind carefully as we proceed to look at how we run our economy and society.

The debate is timely, because Parliament is convulsed in a state of indecision at the moment about whether to go for the Prime Minister’s deal, no deal or no Brexit. Everyone is talking about the backstop. It is important in that context not to lose sight of the clear risk posed by Brexit of regression in terms of human rights, across the United Kingdom. It is also important to remember the threat that it poses to human rights in Northern Ireland. At least one speaker today has pointed out how integral the recognition of human rights is to the Good Friday agreement. For anyone interested in that, I highly recommend the briefing paper “The Good Friday Agreement, Brexit, and Rights” by Professor Christopher McCrudden, who is the professor of human rights and equality law at Queen’s University Belfast. The paper was published by the British Academy and the Royal Irish Academy, and makes interesting reading.

I believe that human rights are in a precarious position in the UK at the moment, because despite a clear commitment from the Prime Minister that Brexit would not result in a diminution of rights protections, the UK Government have not to date lived up to that commitment either in the context of Brexit or more widely, as we can see from the UN rapporteur’s report and the huge concern caused by the Windrush scandal and other aspects of the hostile environment policy. Many of us feel that the Government have refused to engage with people’s concerns about the impact of Brexit on human rights. It is concerning that while the Human Rights Act is said to be safe for the duration of the Brexit process, recent events have made it clear that the current UK Government have not lost sight of a long-standing desire on the part of some in the Conservative and Unionist party to repeal and replace the Act.

In the meantime, we know for certain that if Brexit happens we shall lose the charter of fundamental rights. That charter protected a wide-ranging list of fundamental rights and principles, covering certain social and citizens’ rights, and going considerably further than the ECHR. The UK Government have tried to argue that the charter did not add anything to the corpus of UK law, but that is demonstrably false, even going by the UK Government’s own right-by-right analysis from 2017. That highlights how limited UK domestic protections are in certain key areas. That is not just my view; it was echoed by the Joint Committee on Human Rights, of which I am a member.

The Scottish Parliament tried to preserve the benefit of the charter of fundamental rights on or after exit day, in so far as it applied to retained EU law in Scotland. It did that in a Scottish Parliament Bill called the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Most regrettably, British Law Officers objected to the Bill and held it up until the European Union (Withdrawal) Act 2018 was passed. That retrospectively changed the powers of the Scottish Parliament so that the continuity Bill, in so far as it attempted to preserve the charter in Scotland, was ultra vires. That was a retrograde step. To anyone who says that Brexit has not been used as a power grab on the Scottish Parliament I point out that the UK Supreme Court has clearly said otherwise.

The Brexit process threatens human rights protections across the UK, not just by repealing the charter but because of the wide range of delegated powers afforded to the Executive in the Brexit process. As the withdrawal Act stands, it would allow the amendment of important domestic rights legislation such as the Equality Act 2010, the Modern Slavery Act 2015 and the Data Protection Act 2018 with little or no parliamentary oversight. That is so because, despite the efforts of many of us to amend it, the Act contains no clear prohibition on the use of delegated powers to erode rights protections.

The repeal of the charter, the risks of delegated legislation, and Government obfuscation on these issues—that is also a result of Brexit—all threaten human rights in the United Kingdom. Hon. Members should not just take my word for that, because the Joint Committee on Human Rights criticised the Government over their report on human rights and the implications of Brexit, and stated back in 2016 that it was “regrettable” that the Government had not set out “any clear vision” for how they expected Brexit to impact on the UK’s human rights framework.

In the same report, the Committee found that the Government seemed “unacceptably reluctant” to discuss human rights after Brexit. The then Minister responsible for human rights, the right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald), was either

“unwilling or unable to tell us what the Government saw as the most significant human rights issues that would arise when the UK exits the EU.”

Such reluctance to commit is of particular concern when we consider future trade deals with third countries because many of us fear, as the JCHR hinted, that an unwillingness to discuss such issues in detail is suggestive of a Government who wish to prioritise trade deals over human rights. That is important not only because of the message that it sends out to the UK, but because of the message that is sent out across the world if the United Kingdom does not prioritise human rights.

As my hon. Friend the Member for Edinburgh East said, concern has recently raised its head again about the Government’s long-term intentions regarding the repeal of the Human Rights Act 1998. It is difficult to remember what we all talked about in those dim and distant days before Brexit, but in 2015 and 2016 the current Prime Minister’s avowed desire to get rid of the Human Rights Act was a huge issue, and the big question mark that she raised over whether Britain would continue to observe the ECHR involved us all in a lot of debate. It seems that that issue has merely been put on the back burner, which is concerning.

As my hon. Friend said, in Scotland under devolution two pillars guarantee human rights—membership of the European Union and membership of the ECHR. Scotland now faces being taken out of the European Union against the will of the majority of Scots, and there is a big question mark over the depth of this Government’s commitment to the ECHR. The majority of Scottish voters did not seek or support those threats to human rights, and it is good to know that the Scottish Government are showing the way forward. Scotland’s national action plan for human rights has existed for a number of years, and just before Christmas the advisory group on human rights leadership to the Scottish Government published a report that suggested a new human rights framework for Scotland in the future. That advisory group was asked by the Scottish Government not only to make recommendations about civil and political rights, but to consider social, cultural and environmental rights, as well as if and how to incorporate rights found in United Nations treaties into Scots law and governance.

As my hon. Friend said, in recommending the next steps on Scotland’s human rights journey, the report of the advisory group set out three guiding principles—first, that Scotland should not regress from the rights currently guaranteed by membership of the European Union; secondly, that Scotland should keep pace with future rights developments within the European Union; and thirdly, that Scotland should continue to demonstrate leadership in human rights.

Will the Minister consider each of those principles and say whether the UK Government will sign up to them for the whole of the UK? Will the Government agree that the whole UK should not regress from the rights currently guaranteed by membership of the European Union? Will they agree that the whole UK should keep pace with future rights developments in the European Union, and that the UK should continue to demonstrate leadership in human rights? That is the sort of clarity that the Joint Committee on Human Rights and others have been calling for. I would like to hear such clarity from the Minister today, and if the UK Government cannot sign up to those principles, will the Minister tell us why not?