Human Rights Legislation Reform

Robert Neill Excerpts

Monday 24th October 2022 Westminster Hall

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to serve under your chairmanship, Ms Fovargue, and to have the opportunity to debate this important petition.

I will start from the basic principle that the Government and the Conservative party have always been firmly committed to our adherence to the European convention on human rights. For some of us, that is absolutely non-negotiable and fundamental, and rightly so because historically it has been a largely British-driven instrument. British common law traditions have actually greatly developed both the convention itself and the development of the Strasbourg Court’s jurisprudence.

It is worth bearing in mind that, as the hon. Member for Dagenham and Rainham (Jon Cruddas) alluded to, one of the principal authors of the European convention on human rights, the late Sir David Maxwell Fyfe, later Lord Kilmuir, was, at the time, a Conservative Member of Parliament, had been a prosecutor in the Nuremburg trials and later served as a Conservative Lord Chancellor. Conservative respect for human rights is actually very deep-rooted and, for many years, the UK was a diligent member of the convention, without having the Human Rights Act in domestic legislation. It was sensible to have an Act that enabled the remedies available under the convention to be sought in the domestic courts, rather than having to go directly to Strasbourg. That was the purpose of the Human Rights Act when it was introduced. It is not essential in terms of our commitment to human rights to have a statute in domestic law, but it is certainly convenient and greatly helps many British citizens in the assertion of their convention rights. I think it is right that we keep it, but does that mean it should not be reformed? Of course not. Any legislation has space for reform and improvement and that was the commitment in the 2019 Conservative party manifesto, the manifesto on which this Government were elected. I am happy to support that.

It was consistent with that manifesto commitment that the then Lord Chancellor and Justice Secretary, my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), commissioned an independent review of the operation of the Act with a view to modernising and updating it. That was the manifesto commitment—no less, but also no more. In consequence, Sir Peter Gross KC, a distinguished former Lord Justice of Appeal, headed up an independent review panel, which took extensive evidence—over 180 submissions plus roadshows around the whole UK—and produced a detailed report. Subsequently, Sir Peter gave compelling evidence in support of his report to the Justice Committee, the Joint Committee on Human Rights and to, I think, the Constitution Committee of the other place.

If there is to be reform, I suggest that Sir Peter’s balanced report is the appropriate template. It touches upon a number of practical changes that could be made. For example, the ambiguity that his panel concluded exists around the hierarchy of rights—the prioritisation of rights—under section 2 of the current Act. Strengthening the means of dealing with the margin of appreciation—that is the way in which there is a degree of flexibility—is consistent with the principle of subsidiarity. According to this principle, each member state of the convention has some flexibility in the way it interprets the rights and the enforcement of judgments and decisions according to their own domestic legal traditions. Developing the concept of judicial dialogue was started again and brought to its current form by Lord Clarke when he was Lord Chancellor, and then developed in the Brighton declaration and subsequently by the Copenhagen declaration. That is a constructive means of developing jurisprudence within the member states. Further recommendations include tackling one or two other thorny practical issues around remedial orders and in relation to extraterritoriality, which is a real issue. Sir Peter posits various alternative ways, but, ultimately, these Houses, as a legislature, would have to decide upon them. Those would be practical improvements and reforms.

I was surprised when, after Sir Peter delivered the report, my right hon. Friend the Member for Esher and Walton (Dominic Raab) produced a consultation document that went rather beyond the party’s manifesto and then introduced a Bill of Rights that, again, went rather beyond the manifesto and Sir Peter’s panel’s recommendations. Without reciting the history, in September, as has been observed, the Lord Chancellor paused the passage of that legislation and wrote to the Justice Committee and other relevant Committees, notifying them that that was the position. The Lord Chancellor was right to do so. The Bill of Rights, which has had no more than its First Reading, went beyond the manifesto commitment; it also went beyond the sensible changes that I, as a Conservative, want to see, which would be consistent with the evidence that was available to Government. It would also needlessly undermine some of the practical workings of the convention rights for UK citizens.

That is not to say that there are not circumstances where either judgments in the Strasbourg Court or the application of convention rights by the domestic courts do not cause controversy or political sensitivity, if I can put it that way. However, for context, it is worth remembering that the number of instances in which the UK is in breach of its convention obligations is absolutely trivial. I was struck by that fact when I was a member of the Parliamentary Assembly of the Council of Europe, but also when looking at the evidence we have had most recently. The UK actually has one of the best records of compliance with our ECHR obligations of any of the member states.

The figures in the “Report to the Joint Committee on Human Rights on the Government’s response to human rights judgments 2020–2021” show that the number of adverse judgments has declined from 19 in 2011 to 4 in 2020. There has been a consistent downward trend. Similarly, the number of cases brought against the United Kingdom ongoing before the courts has declined from 2,500 odd in 2013 to 124. It is worth bearing in mind that many of those cases are now historic. They related either to certain elements of retention of evidence in terrorism cases that have now been dealt with or to the prisoner voting issue, in particular—of course, a minor amendment to the legislation resolved that issue and brought us into compliance with the convention. The outstanding issues, apart from those that hit the headlines around immigration and asylum and one or two other matters, are actually very minor.

When we look to change an important piece of legislation and at the strength of our commitment to our international obligation under the convention, it is worth bearing in mind that the issues are very limited and discrete. I therefore hope that we will leave the passage of the Bill paused and that the Government will reflect that, of all the issues confronting the Ministry of Justice, there may be other, rather more pressing issues that we should be dealing with. If we do move forward with reform, to which I would have no objection, I hope that we use the evidence-based approach that Sir Peter Gross and his panel set up for us. That, I argue, is the responsible and sensible way forward, and one that completely meets our manifesto commitments.