Human Rights Act 1998 - Motion to Take Note

– in the House of Lords at 3:16 pm on 14th July 2022.

Alert me about debates like this

Baroness Whitaker:

Moved by Baroness Whitaker

To move that this House takes note of the practical impact of the Human Rights Act 1998.

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, may I first acknowledge the contribution to human rights of my dear friend of many years, the noble Baroness, Lady Greengross, a founder member of our Equality and Human Rights Commission, whose work for the rights of older people, among others, was so very effective?

I am grateful for the opportunity to explore what the Human Rights Act 1998 has achieved by way of impact on ordinary people’s lives—not, I hasten to say, as a legal expert, though I should perhaps declare that I have been a magistrate and a member of employment tribunals. More to the point, I am proud to be a member of the British Institute of Human Rights advisory board, and it is there that I have learned much about the very many examples of redress for breaches of human rights. What these amount to is, essentially, disregard for the dignity of our fellow citizens and a lack of respect for them on the part of public authorities. May I invite the Minister to congratulate the British Institute of Human Rights on the work it has done over the years to train public services in the application of the Human Rights Act to their functions?

I will first give some examples of what I mean by impact on people’s lives. Secondly, I will say a few words about what the Human Rights Act has not done. I will conclude by suggesting some of the lasting principles that have informed the Human Rights Act. My remarks are premised on the assumption that, although professional lawyers and judges at every level are essential for the interpretation and implementation of law—we are lucky in this country to have such a distinguished and honourable corps of practitioners—the law is meant for people, for everyone, so that they should understand their obligations and be clear about what they are entitled to. It follows that law should be intelligible, as far as possible, and that redress should be accessible.

Some examples of what our domestic courts have achieved for people through the Human Rights Act are well known. We have heard about the elderly couple who had their wish to live in the same care home respected, that people must be allowed to wear religious symbols at work and that siblings should not be arbitrarily placed in separate, distant foster homes. Do we also all know that the police now have a positive obligation to protect women from domestic violence? This has achieved a change—somewhat—in police priorities and practice. There are several cases of children with learning disabilities who were subjected to damaging isolation, harsh restraints or unexplained evidence of violence, whose parents were able to use the Human Rights Act to obtain changes in their treatment, often resulting in an improvement in a child’s behaviour. We should also remember the case of Corporal Anne-Marie Ellement, whose family were finally able to obtain a full investigation after she took her own life following rape and bullying; that of the incontinent patient forced to use a bucket to urinate in and carry it along the corridor to empty it herself; the safeguarding of trafficked children as a result of the 2013 case of L, HVN, T v R; the Northern Ireland decision that same-sex couples can adopt children; and the use of the right to be free of torture and inhuman and degrading treatment after tragic deaths in mental health institutions.

All these cases relied on the Human Rights Act to achieve lasting improvements in their situation. Is it really plausible that all the people bringing these cases could have managed to get to Strasbourg for a hearing, also knowing that they would have to wait the customary four to five years? I suggest that the domestication of the rights in the European convention, through the Human Rights Act, was essential for justice to be done in these and many other cases.

I think it is important to remind ourselves that uses of the Human Rights Act do not necessarily involve going to court. One of the significant effects of domestic law is that well-meaning people—most people—want to comply. Carers have raised the specific human rights issues of their charges with the public service concerned, which has then responded positively. Conscientious public servants have been helped by discussions with, for instance, the British Institute of Human Rights to think again about how they can adapt their practice. The British Institute of Human Rights has trained over 40,000 people in the last 20 years in the application of the Act to their functions. I am reminded of the dictum of the great Sir Hersch Lauterpacht, the founder of the concept of crimes against humanity:

“the well-being of an individual is the … object of all law”.

The law can achieve that by simply being there.

To take this down to specific instances, a housing association specialising in people with offender backgrounds has been able to reduce their violent behaviour and thus improve the safety of residents through training in interpretation of the Human Rights Act; young people in mental health institutions have similarly been protected from grooming while still having their mobile phones for access to their families; students have secured protection for girls against sexual harassment at school; countless advocates and carers, both volunteer and professional, have obtained the exercise of rights essential to well-being for the people they look after.

There are several things that the Human Rights Act has not done, however. It did not vindicate the relationship with a pet cat as a reason not to be deported, as a reading of the judgment will show, contrary to the claim made by Theresa May MP. Unlike the original Daily Mail story that a “suspected Iraqi insurgent” “caught red-handed with bomb” had won £33,000

“because our soldiers kept him in custody for too long”, the Iraqi, who was neither an insurgent nor a terrorist, and had no bomb, was unlawfully detained, beaten with rifle butts, punched in the face and subjected to sleep and sensory deprivation by soldiers while in custody. Fortunately, in this case, the Daily Mail, which had attributed its false interpretation to the Human Rights Act, was obliged by IPSO to make a full apology and retraction. The Human Rights Act has not supported a contention that a right to hardcore pornography exists for prisoners. There are quite a few other examples of these misleading and pernicious myths. Some of these centre on difficulties with understanding the import of Article 8, on the right to private, home and family life. This is an area where jurisprudence may be evolving—and we should try to clarify the balance that it is intended to strike.

There are some important principles in the Human Rights Act. Perhaps the first is that our judges have full discretion in determining human rights cases in the United Kingdom and the UK is the primary forum for deciding on the application of human rights to its citizens. Secondly, the Human Rights Act reflects the devolved settlement for the nations of the United Kingdom. This is of concern to the peace process in Northern Ireland. The noble and learned Lord, Lord Hope of Craighead, who regrets that he cannot take part, has encouraged me to point out that under the Scotland Act, which also gives effect to the convention rights, there is no wish to alter the arrangements and that any changes would, of course, need the consent of the Scottish Ministers. I hope that the Minister can give me the assurance that that consent would be sought.

The Human Rights Act has also been helpful in defining a public authority as one which carries out public functions. This inclusive definition acknowledges the public/private partnerships which underpin our modern public services. The Human Rights Act also establishes judicial discretion about decisions on whether the Government acted fairly in restricting our rights. It stipulates positive obligations to act in accordance with human rights, thus making them a reality, and to apply laws whenever possible in a way that upholds human rights, to underline the centrality of the interests of the individual citizen and to enable modern concepts such as belief to be understood together with religion; and, most significantly, by creating a system for hearing cases in the UK rather than in the Strasbourg court it enables access for all to justice. Domestic jurisprudence will encourage the development of clarity about proper limits to non-absolute rights, so that people can understand where the balance ought to be struck. So, while there is always room for updating, these are some of the principles of our modern legislation which should be maintained.

One other effect of having the Human Rights Act as part of domestic law deserves mention: the culture that it promulgates of respect for the dignity of our fellow citizens within public services. Sadly, this is not always present, not necessarily because of callousness but because the constraints felt even by dedicated public servants of expenditure, time and targets can be allowed to prevail over what should happen. The Human Rights Act is, in fact, often cited as a practical tool to support public services in their work. Thus, we are in a position to create public ownership of rights values. To entrench this, we need to teach and debate them in schools and in citizenship education generally. We can explore what the balance between conflicting rights should be and how responsibilities are a necessary corollary of rights. In a diverse society, with different faiths and backgrounds, we can cohere better around human rights.

There is another reason for promulgating a domestic human rights culture. In this country, we prefer to enable equality of opportunities rather than equality of outcomes. But the inadvertent consequence of that is that it assumes that those who fail to benefit from equal opportunities were simply not up to it and lacked the necessary qualities of one sort or another—it was their fault. We need a human rights culture to ensure that scorn for the failures in our society does not undermine a humane and compassionate approach. Respect for the individual human being is the core of human rights. Human rights are a recognition that everyone is of equal worth.

In conclusion, in his writings on the theory of justice, Amartya Sen quotes Pip in Great Expectations, that

“there is nothing… so finely felt as injustice.”

Professor Sen adds,

“and there the search begins. The idea of justice calls for comparison of actual lives and iniquities.”

That is what I hope an exploration of the impact of the Human Rights Act can uncover. I look forward with keen interest to the contribution of learned and distinguished speakers in this debate, and very much to the response of the noble and learned Lord, Lord Bellamy, whose speech in the crime reduction debate I very much admired.

Photo of Lord Sandhurst Lord Sandhurst Conservative 3:30 pm, 14th July 2022

My Lords, I welcome the chance to engage in this important debate on this important statute. I begin by declaring my interest as chair of research at the Society of Conservative Lawyers.

Experience of the Human Rights Act has revealed structural flaws that the Bill of Rights would go some way to remedying. Our time today is short, so I will focus on just three matters. The first is Section 2, which directs a court determining a question in connection with a convention right to “take into account” any judgment of the European Court of Human Rights. That has led to unfortunate results, with our courts sometimes doing more than just take account. As the noble and learned Lord, Lord Judge, said in a lecture in 2013, Section 2 should be amended to make it plain that in this jurisdiction, the United Kingdom, the Supreme Court is, at the very least, a court of equal standing. Thankfully, Clause 1 of the Bill of Rights addresses this.

Next, I turn to Section 3. Under this, our legislation must be interpreted as far as possible in a manner compatible with the convention. This displaced conventional approaches to statutory interpretation. The House of Lords in the case of Ghaidan made that worse. It held that this meant the court should adopt any possible interpretation of a statute to give effect in a way compatible with convention rights, even if “the interpretation is unreasonable”. That is extraordinary.

This has led to strained interpretation, unintended by Parliament. Then, because the provision in question has not been ruled incompatible, as it could have been under Section 4, it is not sent back to Parliament to address. This has taken away from Parliament decisions that are rightly for it. Such decisions often involve balancing exercises. Our parliamentarians, for better or worse, represent society. They are likely to have access to information—and better information than people arguing it in the courts—about the issues involved to balance what matters.

Let me explain. Policy is essentially for those who make the law. Policy choices have to be made between compensating individuals and protecting the budgets of public services. Of its nature, a balancing exercise presupposes a situation in which the factors are not all one way. A stark example is the case of Quila, decided in 2011. In 2008, the Home Secretary changed the Immigration Rules to deter forced marriages. The change raised from 18 to 21 the minimum age of the person entitled to be granted the right to settle by reason of marriage.

The worthy aim was to deter forced marriages, but the Supreme Court found a violation of Article 8, the right to family life. It ruled that the interference with family life was not proportionate. One might feel, and I suggest, that there was scope for more than one view on this sensitive matter. The Home Secretary’s policy was supported by 50% of the respondents to a government consultation and by the largest NGO concerned with the evil of forced marriages. That was a matter for Parliament, not for second guessing.

Finally, Section 12 has given insufficient weight to freedom of expression. Incorporation into domestic law of the two qualified rights, Articles 8 and 10, gave direct domestic effect to Article 8, creating a right to privacy. That has protected the rich and powerful with insufficient weight given to the public interest in free speech.

Fortunately, under the Bill of Rights and the forthcoming Higher Education (Freedom of Speech) Bill, free speech will be given greater weight, but I should add as a footnote that the Online Safety Bill will wrongly create a serious threat to free speech. What we can legally say or write, we shall be stopped from putting online—a strange concept of “legal and harmful”.

Without leaving the convention, there is plenty to be done to improve its incorporation in domestic law.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour 3:35 pm, 14th July 2022

My Lords, I thank my noble friend for drawing attention to this important subject, and for finding an opportunity to note the many improvements to life in the UK brought about by the Human Rights Act 1998. Her comments are a timely reminder of how much the HRA has achieved for all UK citizens.

Unlike other distinguished contributors to this debate, I am far from being a legal expert. I come at it from a general sense that the HRA has had a positive and enlightening effect on the way the UK perceives justice and has had a particularly beneficial impact on public services. The HRA compels public organisations—the Government, the police and local councils—to treat everyone equally, with fairness, dignity and respect.

The HRA is now embedded in the work of public authorities. Instances of this have been highlighted by my noble friend, but I also note that it was a humans rights case that finally decriminalised male homosexual acts in Northern Ireland, in 1982, and it was a violation of human rights under the HRA that led to a change in UK law that allowed gay members of the Armed Forces to be open about their sexuality.

The HRA has achieved lasting improvement in individuals’ lives by helping to develop an everyday human rights culture across the UK. It is not just the stuff of high-profile and often controversial court cases; indeed, it often acts to stop cases before they go to court. Despite that, criticism of and antipathy towards the HRA run throughout public and political discourse. I believe this to be misplaced. Indeed, when reading for this debate, it was instructive to see how much of the opposition to the HRA is based on mythology. The noble Lord, Lord Pannick, highlighted this in his oral evidence to the Joint Committee on Human Rights earlier this month. He busted the myth that the HRA has reduced the power of Parliament to legislate as it sees fit. European Court of Human Rights judgments are not binding on our courts, so why do the Government feel the need to include provisions that assert parliamentary sovereignty in their proposed, and rather unhappily titled, Bill of Rights Bill? There is also a myth that, because of the HRA, courts may be interpreting laws in ways that were never intended by Parliament, thereby undermining parliamentary democracy. But what court judgments exist to give substance to that view?

As others have observed, much of the mythology surrounding the exercising of human rights stems from media misrepresentation, not least the tabloids’ obsession with the HRA as a “chancers’ charter”. I can add to my noble friend’s litany of things the HRA is not responsible for. The HRA is not the reason why the police cannot put up wanted posters. A UK judge on the European Court of Human Rights did not call for axe murderers to be given the vote; in fact, he said it was important for the UK to implement the Hirst judgment that the blanket ban on voting by convicted prisoners was unlawful. Myths about the HRA may start in the Daily Mail but they become part of the popular discourse about human rights. To counter that, we need a better understanding of our fundamental rights, how the UK’s human rights framework works and how our rights are enforced.

An important recommendation from the independent HRA review was for an effective programme of civic and constitutional education on human rights and individual responsibilities. That was touched on recently in this House in an Oral Question on citizenship education, which in recent years has been allowed to fall away in our schools. We need to do better. Does the Minister agree that a good start would be to extend the statutory entitlement to citizenship education to primary schools?

The Human Rights Act helps to protect the most vulnerable in our communities, but it serves us all. How human rights are applied and how competing rights are balanced may vary depending on the context, but that does not affect their universal nature. Human rights apply to everyone. They are the deep foundations of our lives and of our laws, and they exist because of our humanity, not because of what we have done in our lives. Does the Minister agree that, much as my noble friend Lady Whitaker said, human rights recognise that everyone is of equal worth?

May I further ask the Minister whether, in these troubled times, when the UK is seeking to ask other countries to respect human rights and international law, he will acknowledge that many of the Bill of Rights proposals would put the UK in breach of its international obligations under the European Convention on Human Rights? That would be a shameful state of affairs.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 3:40 pm, 14th July 2022

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.

Photo of Baroness Donaghy Baroness Donaghy Chair, EU Services Sub-Committee, Chair, EU Services Sub-Committee 3:46 pm, 14th July 2022

My Lords, I thank my noble friend Lady Whitaker for initiating this debate. I read her contribution in a debate that took place 11 years ago. Her wisdom and compassion shone out then as it did today. I quote one extract from her contribution:

“Enemies of red tape and bureaucracy should welcome the Human Rights Act. It is there to give a human dimension back to state operations. It is not … primarily for lawyers any more than water is for water engineers. It is for citizens to rely on and public servants to have regard to.”—[Official Report, 19/5/11; col. 1507.]

In the same debate the noble Lord, Lord Pannick, said:

“one of the central purposes of human rights law is to protect the interests of those sections of the community who lack political power, who Parliament has failed to protect against unfair treatment by the majority … Parliament remained sovereign on all these issues … tempting though it is for politicians to try to win support by fighting a battle of Parliament Square against the Supreme Court, the current Administration need to be reminded that there are many issues where the dispassionate assessment of public policy by an independent judiciary, and by a reference to standards of fairness and proportionality, serve a valuable public purpose.” —[Official Report, 19/5/11; cols. 1502-03.]

Of course, we now know that the current Administration, the same Conservative Government, have yielded to that temptation 11 years later.

Before I continue, I echo the tributes that were made at the time to the noble and learned Lord, Lord Irvine of Lairg, who led that particular debate and, more importantly, steered the Human Rights Act 1998 through this House. His contribution to this country is immense. He reminded the House then that although Britain was the first state to ratify the European Convention on Human Rights in 1951, failure to incorporate the convention into our domestic law meant that our own citizens could not argue for their convention rights in our own courts, but had to take the long and expensive road to Strasbourg that some noble Lords have already referred to. It took another 47 years to resolve that, and he paid tribute to Churchill’s Conservative Government for ratifying the convention and referred to a publication by Norman and Oborne entitled Churchill’s Legacy: The Conservative Case for the Human Rights Act. In attempting to dispel many of the myths about the Human Rights Act, Norman and Oborne concluded:

“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”.

The noble and learned Lord pointed out that the convention and the Act had

“enhanced protection for journalistic sources”, and seen

“a dramatic reduction in the level of libel damages, and the right to report on a much wider range of court proceedings”.—[Official Report, 19/5/11; col. 1494.]

The Government’s Bill of Rights is actually a rights removal Bill. The Council of Europe’s Commissioner for Human Rights found that the Bill could weaken human rights protections across the UK. How will the Bill reconcile with the rights available under the Scotland Act and the Good Friday agreement in Northern Ireland? The Scottish Human Rights Commission and many other organisations pointed out that the Government ignored their own independent review, which concluded that there was no case for widespread reform. The commission is quite clear that the Government’s Bill of Rights will undermine rights protections for people in Scotland. The director of Liberty, Martha Spurrier, said that the Bill would make it harder for people to access justice. My noble friend Lord Ponsonby of Shulbrede said the same thing on 23 June. Incidentally, I am a member of Liberty. I ask the Minister whether he could satisfy my questions on the issue of the Good Friday agreement and the Scotland Act.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct, Chair, Sub-Committee on Lords' Conduct 3:51 pm, 14th July 2022

My Lords, some 40 years ago—that is, some 20 years before the 1998 Act—I used to appear for the UK Government in Strasbourg. I regularly—almost invariably—lost their cases. My record there was: played 12, lost 10, drew 1, won 1. That counted as not a bad record in those days.

I then spent some 30 years on the Bench, roughly half of it before the 1998 Act came into force in 2000 and half afterwards, dealing with cases of a human rights nature. There are some who question whether the convention was ever necessary for us, and whether our own laws were not ample and well able to secure our basic rights and liberties. Indeed, one prominent member of the Tory party just a few weeks ago in this House, in an HRA debate, raised that very question and asked the Minister to identify any specific advantages that had come to this country as a result of our adherence to the European convention. Five minutes is just about enough for a riposte to that, to show that the convention has proved over the years invaluable in liberalising and modernising our laws and practices, but it does not allow time to discuss the impact of the 1998 Act in intensifying, accelerating and facilitating the process. Still less does it give time to discuss the more nuanced and altogether more topical question as to the effect of the proposed replacement of the 1998 Act with Mr Raab’s current human rights Bill. As to that, I shall say no more than that, while I regard much of it as window dressing—or in the words of Sir Robert Buckland, as a solution in search of a problem—I am less sceptical than many as to whether it is all bad or whether it is designed, as some would suggest, to limit our human rights in future.

Turning therefore very briefly to the benefits of the convention over the years, here are just a few. These first are drawn from the cases that I lost in Strasbourg. First, on prisoner rights, we used to censor all prisoner correspondence, in and out, even with their lawyers. The Home Office, to its credit, wanted to liberalise, this regime, but the Prison Officers’ Association, a militant union, would not allow it. We duly went to Strasbourg, fought and, of course, lost the cases, and the Home Office was then in a position to confront the union with these adverse decisions, and we made way forward.

We similarly happily lost the closed-shop case to the then Government: there is as much a right not to join a union as there is to join one. Other cases I lost were about telephone tapping practices and the security service intrusions where there was no legal authorisation. In later years, as the noble Baroness, Lady Warwick, mentioned, our adherence to the convention prevented the MoD outlawing all service personnel with homosexual tendencies, and prevented the Executive, as opposed to the judiciary, in life cases determining the actual length of tariff sentences and prisoner release dates. One could go on and on, but there is no time.

Despite my general support for the convention, I should not be taken as applauding all the court’s decisions or as opposing all that is now proposed by way of what the Minister calls the recalibration of the legislation—there are aspects that need it. The noble Lord, Lord Sandhurst, mentioned the Aguilar case where the Supreme Court made a contentious decision on forced marriage—I dissented.

Photo of Lord Cashman Lord Cashman Non-affiliated 3:56 pm, 14th July 2022

My Lords, I am proud to speak in this debate and it is always a pleasure to follow my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I thank my noble friend Lady Whitaker for this important and timely debate and for her far-reaching introduction. I thank Professor Paul Johnson, the executive dean of the University of Leeds, for his invaluable advice and briefings from Justice, POhWER—including a coalition of charities—Amnesty and the Scottish Human Rights Commission, which warned us about the Government’s intention to replace the HRA and the negative consequences that could follow. I note with concern the absence of a briefing from the English Equality and Human Rights Commission.

I apologise for being blunt, but when I think about the practical impact of the Human Rights Act it is personal, because the impact of the Act has been deeply profound for LGBT people like me. Indeed, the very concept of equality, in which our legislation later developed, began with the equal age of consent. I think back to when the Labour Government introduced the Bill that became the HRA, and of the great promise made in this House by the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, that:

“This Bill will bring human rights home”, so that

“the human rights of individuals and minorities should be protected by law”.—[Official Report, 3/11/97; cols. 1228, 1234.]

As a minority, I take the protection of my rights by the HRA very seriously indeed. I remember when, year after year, decade after decade, LGBT people and other defamed minorities were forced to go through extremely lengthy and costly proceedings to reach the European Court of Human Rights to gain protection under the European Convention on Human Rights in the United Kingdom. Even though the United Kingdom, as we have heard, was a signatory to the convention, individuals had limited mechanisms before the Human Rights Act to enforce their convention rights in full in the domestic courts. This produced the disgraceful situation in which domestic courts often acknowledged that LGBT people suffering discrimination would win if they advanced a complaint under the convention in the Strasbourg court but were powerless to help them in the United Kingdom.

In this respect, I need mention only the so-called gays in the military case, in which my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood, then sitting in the High Court, noted the extreme limits created by the lack of the convention not forming part of domestic law, resulting in litigants having to pursue their claims in Strasbourg, where of course they won.

The Human Rights Act gave LGBT people like me and other minorities a vital cloak of protection that we never had before. It is a protection that is in operation every single day, both in the private and public spheres. The Government’s plan to repeal the Human Rights Act in the Bill of Rights Bill should horrify anyone concerned with the development and protection of human rights in the United Kingdom. It is an act of vandalism.

It should be realised that the Bill of Rights Bill is probably a staging post for the ultimate aim of some in this Government to remove the United Kingdom from the convention itself. Indeed, provisions in the Bill of Rights Bill, which will create a damaging disconnect between the domestic courts and the European Court of Human Rights, have the great potential for once again forcing LGBT people and others to go to Strasbourg when the UK courts are less responsive to protecting their convention rights. This will potentially result in a rapid rise in violations against the United Kingdom in the Strasbourg court, which I fear will be used by a Government of this type down the line to make the tired and obscene claim that a foreign court with foreign judges is meddling in our domestic affairs and that the UK should leave the convention system.

I hang my head in shame at the kind of country we are becoming; a country where once again rights are seen as unaffordable, and people are being depicted as a threat from which others should be protected. It is happening now. Look at trans women and trans men; we have seen the casual and unacceptable dehumanisation of an entire minority, with dangerous consequences. Ultimately, any civilised country is judged by how it treats the most disfavoured and how it treats those who seek sanctuary and justice. In this regard our country has been brought low and is sinking further.

I conclude by reminding noble Lords that the Human Rights Act brings rights home and that is ultimately good for everyone. I resolutely oppose taking away the vital protection of the HRA. We are all diminished and debased by such squalid intentions.

Photo of The Bishop of St Albans The Bishop of St Albans Bishop 4:01 pm, 14th July 2022

My Lords, I too thank the noble Baroness, Lady Whitaker, for securing this debate, and for setting out so clearly many of the great benefits that have been achieved through the Human Rights Act. I will not repeat or elaborate any of those here, and perhaps save a moment or two in so doing.

As neither a legal nor constitutional expert, I am not going to delve into the technical side of the matter, but it is clear to me that this is a discussion not simply about the importance of the Human Rights Act 1998 but about many of the concerns—already raised from different Benches in this House—that noble Lords have with the proposed British Bill of Rights. Before I mention some of my concerns, I commend the introduction of the right to a trial by jury in the updated Bill of Rights Bill. But aside from this one welcome measure, it strikes me that there is a very real danger that the new Bill of Rights may remove levels of accountability from government, particularly in areas such as immigration, which I have an interest in.

Interim decisions by the European Court of Human Rights, such as that which recently prevented the deportation of refugees to Rwanda, will, it appears, become a thing of the past once the 1998 Act is replaced. This Bench has been particularly critical of the Rwanda policy. Recently, the Lords spiritual signed unanimously a letter that spoke of our Christian heritage, which should inspire us to treat asylum seekers with compassion, fairness and justice, and, above all, that when they arrive on these shores they are given due process so that their claims can be examined.

This emphasis is important when we remember one of most influential architects behind the Council of Europe, which drafted the original European Convention on Human Rights. Robert Schuman, drawing on Catholic social teaching, saw the convention as the foundation on which to base the defence of individuals against all tyrannies and against all forms of totalitarianism. What concerns me is that the emphasis on areas such as national sovereignty and the “will of the people”—although there are obviously aspects of those that are good in themselves—means we lose sight of the original impetus behind the foundations of institutions such as the ECHR, which was to protect individuals against abuses from their Governments, something that at the time they were tragically aware of.

The defence of each human being should apply just as much to refugees, even to foreign criminals, and to individuals who have suffered at the hands of the Armed Forces as anyone else. Either they are human rights—universal and overseen by a supranational authority—or they are national rights. I sense that our Government may want to argue for both, when actually we are moving towards the latter.

Our adherence to the 1998 Act is a national choice that Parliament has made, but it is also a convention respected by successive Governments. We can all recall the huge frustration of former government Ministers at not being able to deport individuals they deemed dangerous, but their reaction was not to leave behind this well-established convention that bound us to a higher authority. A convention like this holds weight only so long as it is genuinely respected and supported.

My fear, along with that of many others I know, is that in altering or tinkering with the convention, a precedent is being set that would encourage future Governments to further tinker with our human rights legislation when it conflicts with other agendas. In the UK, Parliament is sovereign, yet it is that sense of long-established convention that prevents any overextension of its authority. Once that convention disappears, there is nothing holding back that sovereign power from acting in the sort of tyrannical manner that Schuman and many others were determined to avoid.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour 4:06 pm, 14th July 2022

My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of St Albans and to take part in a debate so excellently opened by my noble friend Lady Whitaker.

During the pandemic, Sir Robert Buckland asked a very good friend of mine, Sir Peter Gross, to chair a commission looking into the operation of the Human Rights Act. This very distinguished commission included a Member of your Lordships’ House—the noble Baroness, Lady O’Loan—and came up with very sensible and useful suggestions. For example, the commission said that greater use should be made of Parliament’s Joint Committee on Human Rights. It concluded that the Human Rights Act was generally working well but that it could be improved. There is nothing wrong with any of that, but a later Lord Chancellor—the current one—decided along with the Government that the commission did not go far enough, and that there should be a Bill of Rights. That there is some scepticism about the European Convention on Human Rights was pretty evident in the reaction to Sir Peter’s commission’s report. I do not need to remind your Lordships that Winston Churchill and Sir David Maxwell Fyfe were behind the European Convention on Human Rights.

My noble friend Lady Donaghy referred quite rightly to Scotland and the Scottish Human Rights Commission, with its opposition to this. She also referred to the fact that there should be legislative consent Motions from the Scottish Parliament, and indeed from the Welsh Senedd. I look forward to the Minister’s reply on whether that will have any bearing at all on the decisions the Government might make. They cannot get one from the Northern Ireland Assembly yet because it is suspended. It is not meeting now, but I hope that it will be by the time that these matters are debated later in the year.

However, the greatest impact of the changes which have been brought about and are predicted to come will indeed be on Northern Ireland and the Good Friday agreement—I have it here—which was signed 24 years ago. In the same year that the Human Rights Act was passed by Parliament, I was taking the Northern Ireland Act 1998 through the House of Commons as a government Minister. That Bill incorporated the Good Friday agreement, both of which had within them huge aspects of human rights and the discussions that we had. I had to deal with those when I was dealing with the talks.

If the Minister eventually looks at the human rights recommendations in the Good Friday agreement, as I am sure he will, he will see, for example, the ECHR, which should be incorporated into Northern Ireland law; direct access to courts; remedies for the breach of the convention; powers for the courts to overrule the Assembly on the grounds of inconsistency; the establishment of the new Human Rights Commission in Northern Ireland; similar changes in the Republic of Ireland; and, of course—although this has never happened—the establishment of a Northern Ireland Bill of Rights. I imagine that the Government propose that their new Bill of Rights will incorporate a bit on Northern Ireland but that was not the agreement signed in Belfast a quarter of a century ago.

This agreement is an international treaty. It has been the basis of peace and prosperity in Northern Ireland for the past two or three decades. It will be difficult to persuade those in Northern Ireland who deal with human rights issues, on both sides of the community, that the Government’s proposals will not affect the findings of that agreement or the international nature of the agreement itself. The British Government and the Irish Government are joint guarantors of the agreement. It is facing enough trouble as it is. The Government pray in aid the Good Friday agreement to support their views on the Northern Ireland protocol. In so doing, they must also understand the importance of human rights, the European Convention on Human Rights and, indeed, the European Court of Human Rights for the people of Northern Ireland. We have enough trouble in Northern Ireland at the moment; we do not need any more.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 4:11 pm, 14th July 2022

My Lords, I should declare that I was a lawyer in the Home Office in the late 1990s during the preparation and passage of the Human Rights Act. I also worked on the Good Friday agreement, to which my noble friend Lord Murphy referred. I am a council member of Justice and was the director of Liberty for some years, during which I had the privilege of publishing Jesse Norman and Peter Oborne’s wonderful pamphlet, Churchill’s Legacy: The Conservative Case for the Human Rights Act. I commend that document to all noble Lords, particularly those opposite.

I congratulate my noble friend Lady Whitaker on securing this debate and on all her wonderful human rights works. Of course, it is always an honour to follow my noble friend Lord Murphy of Torfaen. His record speaks for itself but I wholeheartedly support everything that he said about the importance of the Human Rights Act in our constitutional settlements, including our devolution settlements and the precious Good Friday agreement, in particular.

The Human Rights Act is both a progressive, contemporary Bill of Rights and an exquisite British constitutional compromise. I do not mind the word “compromise”; it is a good word. It preserves parliamentary sovereignty via Sections 3, 4 and 6 while still allowing an independent judiciary to protect both the will of Parliament and the fundamental rights and freedoms of all people, not just citizens, from executive abuse and outmoded, discriminatory laws.

I was slightly surprised by some of the comments from the noble Lord, Lord Sandhurst, because I had not taken him for an originalist, as the Americans refer to people who use very literal interpretations. It is only right to share with noble Lords the facts of the Ghaidan v Godin-Mendoza case that he found so outrageously creative. It concerned a same-sex couple who had lived in rented accommodation for many years. The person whose name was on the rent book died. His partner would have been evicted but for the Rent Act having to be reinterpreted under the Human Rights Act Section 3 duty so that the words “living together as man and wife” could be applied to a same-sex couple. That is the outrage of interpretation to which, with respect, the noble Lord, Lord Sandhurst, was referring.

The Human Rights Act is very British in that compromise, but internationalist in incorporating the European convention, which was itself drafted, in no small part, by Conservative lawyers after World War II, as we heard from many noble Lords—particularly from my noble friend Lady Donaghy, in her fantastic history lesson of a speech. Section 2 requires our courts to take accounts of the decisions of the Strasbourg court, but they are not bound by them. That has now been fully accepted by our Supreme Court, as we have heard. This facilitates, therefore, a wonderful judicial conversation—a continuing judicial dialogue—between national and international jurists. This is so important and to the benefit of both. It benefits our law here and means that great jurists, such as the friend of all of us, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, have contributed to the breadth of jurisprudence in Europe as well as here. That is so important: we do not want to break that dialogue and vital link.

Section 19 statements by Ministers have also been important to parliamentary scrutiny of the human rights impact of legislation. Would the noble and learned Lord tell us how many times, even in the last few years under the Johnson Government, Ministers have actively relied on Human Rights Act obligations and interpretations when justifying things such as the CHIS Bill, as was, and the Nationality and Borders Bill, as was—now unfortunately Acts? Ministers have frequently stood there and said, “Do not worry: this power looks broad, but it will have to be exercised in a way that is compliant with the Human Rights Act.” Presumably, all that goes out the window now.

As we have heard, positive obligations, which are now to be trashed, have helped so many victims, but I have one final point on free speech. The Human Rights Act in Article 10 created the first enforceable right to free speech in this country. That will, ironically, be undermined by this rights removal Bill. Finally, I wonder if the noble and learned Lord agrees with me that the greater threat to free speech in this country does not come from the Human Rights Act; it comes from super-injunctions sought by wealthy and powerful people, including in government, relying on Article 8 and on a lot of money. That is hypocrisy: one rule for some and another for everyone else.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench 4:17 pm, 14th July 2022

My Lords, it is a great pleasure to follow the noble Baroness. I agree with what she said and defer to her experience in dealing with matters under the Human Rights Act. The background to this debate is in six stark words in paragraph 2 of Schedule 5 to the Bill of Rights Bill:

“The Human Rights Act … is repealed.”

The noble Baroness, Lady Whitaker, opened this debate in that context, with great self-control and temperance. I thank her for keeping the subject so cool, when it could be extremely emotive. If that Bill is ever debated in this House, the Government will face a serious fight, because it is not a manifesto Bill in the form in which it has been presented to Parliament.

The noble Lord, Lord Sandhurst, is an admired legal colleague, and I hope he takes what I am about to say in good part. In my study at home, I have approximately 100 years of Criminal Appeal Reports. Let me take the first Birmingham Six appeal as an example: I could take pages from those reports and say to your Lordships, “These decisions were just wrong”, but I do not present that as an argument for abolishing the jurisdiction of the Court of Appeal Criminal Division. Courts are not perfect places and, as has just been illustrated by the noble Baroness, Lady Chakrabarti, there will be subjects on which we disagree, but they are not an argument to abolish a jurisdiction.

The quantity of cases that have come before the European Court of Human Rights in recent years is deeply connected with this argument, as Suella Braverman happens to have said this morning—I may return to that in a moment. There have been only five cases before the European Court of Human Rights against the United Kingdom since October 2017. I doubt if any Member of this House or member of the Conservative Party could present a respectable argument for disagreeing with the decision reached in those cases.

So I look forward with interest to hearing the speech of the noble and learned Lord, Lord Bellamy, in due course. I had the privilege of serving as one of his part-time chairs when he was president of the Competition Appeal Tribunal. Brilliantly knowledgeable, he was a very good teacher, and, heavens, did I need it in that jurisdiction. The House will often benefit from his great intellectual skills and persuasive voice, and I hope he will use that persuasive voice in his customarily logical way to try to persuade the Government that they are wrong about this issue. We will not blame him if he fails; we will blame him only if he does not try.

The absurdity of Her Majesty’s Government’s position was illustrated this morning by Suella Braverman who is, of course, the current Attorney-General—she is not a random Back-Bencher standing for the leadership of the Conservative Party—who said that one of the reasons why we should abolish the Human Rights Act and take no part in the decisions of the European Court of Human Rights is because that is the way we would prevent refugees crossing the English Channel. I have been struggling with that one all morning. It has absolutely no intellectual or—can I put it this way?—even political credibility. I hope at least that we will hear the Government saying that tropes of that kind will not be used in argument against the Human Rights Acts.

We will have full debates on this issue, I fear, if the new Prime Minister, whoever they are, decides to proceed with this Bill or something like it. I simply ask them to bear in mind some words of James Madison, the founding father of the American constitution, who wrote:

“Liberty may be endangered by the abuses of liberty, as well as the abuses of power”.

That proportionality test is well worth some deliberation before presenting legislation as intended at the moment to this House at least.

Photo of Lord Parekh Lord Parekh Labour 4:22 pm, 14th July 2022

My Lords, I congratulate my noble friend Lady Whitaker on introducing the debate and my noble friend Lady Chakrabarti on ending her powerful speech with some extremely pertinent observations.

I want to step back a little and think about the concept of human rights in this country and what we have done with it. For centuries, our legal and political culture was centred on the idea of liberty. After the Second World War, and especially after the formation of the European Union, the culture of liberty was replaced by the culture of rights. The language of rights became more dominant and with that, obviously, the language of human rights. We helped to formulate the European Convention on Human Rights, we signed it in 1958 and we brought it into domestic law in 1998. During that period, the convention has been embedded in various aspects of our public life, various institutions and in organisations such as the NHS, universities and prisons so that one can easily predict how the principle of human rights is instantiated in a particular context. It is easy for an ordinary Briton to predict how human rights are going to be applied in a particular context.

Now there is a proposal to change the situation yet again. One needs to step back and ask what the change is for and what it is likely to achieve. I have no objection to changing anything, including the idea of human rights. Human rights are defined differently in different societies depending on their conception of human well-being. For example, in China human rights include the right to be maintained by your children in your old age and to be able to go to live with them, and in Germany human rights include the right to dignity so that no defamatory remarks will be made about you. So human rights can be defined differently and the question is: when we look back at our record on human rights, what are the acknowledged deficiencies? What are the improvements that the new Bill will make? I do not see many.

We are told, for example, that Parliament should be sovereign and far more important than the courts of law, and that the Human Rights Act gives far more importance to the courts than to Parliament. I do not see that this is particularly significant because I do not think that a culture of human rights is incompatible with the idea of parliamentary sovereignty. Or we are told that, in particular human rights cases, our courts are superseded by the European courts. Again, this is an idea of nationalism—of national sovereignty—and I do not see that it is particularly significant.

My simple concern is that when we look at the proposals, they seem to remove all constraints, moral and political, on the power of the Government to do what they want to do. The new proposals are intended to be a template for permitting the Government to do what they wish to do, as is obvious, for example, in the case of our refugees and asylum seekers being sent to Rwanda. What is objectionable about the proposal to reform the Human Rights Act is that, rather than strengthening or reinforcing constraints on government power, it releases those constraints and allows the Government to get away with anything they wish to do.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 4:26 pm, 14th July 2022

My Lords, I start with a warning. This Government do not want scrutiny. It will not matter who becomes the new leader of the Conservative Party and, on the vote of only 160,000 people, our new Prime Minister—the Government do not want scrutiny. That is why they want to repeal the Human Rights Act, and I thank the noble Baroness, Lady Whitaker, for introducing this debate and for her humanity over the years in promoting human rights.

I remind everyone—I see here the noble Lords, Lord Thomas and Lord Carlile, the noble and learned Lord, Lord Brown, and my noble friend Lady Chakrabarti, people who have been involved in these issues over a long period—that it used to take us six years to get a case to the European Court of Human Rights. When we took a case about the cruel and inhumane treatment being used in interrogation practices in Northern Ireland, it took six years to get the case to the European court. The business of bringing rights home in 1998 was to say, “Look, this is ridiculous; we ought to be able to make some of these decisions in our own courts”. What is being said now is that we want to constrain these terrible foreign judges, but let us be very clear that this is about constraining our judges even more. Do not be taken in by the rhetoric.

Human rights, as we know, are about respect for the humanity of another, irrespective of whether that person is male or female, whether they are a person of colour, whether they have one religion or another or no religion, whether they are gay or straight or trans, whether they are an asylum seeker or an economic migrant, whether they are a prisoner who has forfeited their liberty because of bad things they have done: they are still human beings who deserve to have their humanity respected. A person’s status should not reduce their humanity in our eyes; their human rights should not be contingent on their conduct or have to be earned. Those things, we have to hold on to.

I reinforce what has just been said by my noble friend Lord Parekh: decision-making by public bodies that undermine human rights should not be above challenge. Unfortunately, this business of repealing the Human Rights Act is precisely as he said. This is about a grab of power to the Executive, so we should be very clear about what is underpinning this. It really is about saying that members of the public will not be able to say, “These decisions being made by public bodies or by government policy are going to take away some of my human rights”. They do not want that, and that is what will mean significant inroads into the powers, not just of an international court but of domestic courts, to review the legality of what the Government do.

It must be remembered that the law develops by bringing test cases. To reinforce something said by my noble friend Lady Chakrabarti, at the heart of this assault on rights is the division between lawyers who believe in the “living instrument” doctrine—the idea that law has to live and breathe through generous interpretation of rights because society changes and becomes different, so we want our judges to do likewise—and lawyers who want to cling to the original meaning of a text. They insist that common law is the great tradition and does not need any additional elements from outside, or the outside eyes that can often help us look at our system and see where it might need bettering. This idea of the original text comes from the US Justice Scalia school of lawyering, which insists on what the drafters of law had in mind and takes no account of changing norms or culture. It maroons society in a romance with the past, which is one of the things that we have to guard conservatives against, instead of moving into contemporary times and respecting the humanity of all.

We should be very clear about what the Government have in mind. This is why they are so dismissive of consultation or bringing in experts, as we had with the noble Lord, Lord Faulks, on judicial review and my noble friend Lord Murphy’s friend reviewing the Human Rights Act. They were dismissed by the Government because they do not want external reviews; basically, they just want to stick to an ideological position—to attack human rights. The objective of this Bill is not to restore parliamentary sovereignty or bolster rights, but the very opposite: to reduce rights, consolidate executive power and resist scrutiny.

Photo of Lord Dubs Lord Dubs Labour 4:31 pm, 14th July 2022

My Lords, I too thank my noble friend Lady Whitaker for introducing this debate. I suspect it will be the first of many in which the Government will find it hard to defend the position they are in. I also pay tribute to my noble friend Lord Cashman, who reminded us of not just how far we have to go but how far we have come. That is a sign of positive progress. I am a member of the Joint Committee on Human Rights—I have been on it before and am on it at the moment—and will say a little about the recent visit we paid to the European Court of Human Rights and the Council of Europe in Strasbourg a few weeks ago.

Before that, I think it was Robert Buckland, the previous Lord Chancellor, who coined the Government’s approach to the Human Rights Act as

“A cure in search of a problem”.

Never were truer words uttered. Dominic Grieve, a previous Attorney-General, said:

“Did I ever feel that government was being rendered ineffective by Human Rights Act claims? No, I did not.”

There are very few defenders of the Government’s position, although I missed Suella Braverman on the television this morning. The Joint Committee on Human Rights looked at all this—indeed, we await the Justice Secretary coming to give us evidence. He was supposed to come next Wednesday but cancelled a few days before. I wonder whether there is a hint that things are changing in government on this; I have no evidence beyond his saying that he does not want to come at the moment.

I hope these debates will render one misconception obsolete. In some of our newspapers, there is still a misunderstanding between the European court and the European Court of Human Rights, which has sometimes bedevilled some of the discussion.

When the Joint Committee on Human Rights went to Strasbourg, the people we spoke to were taken aback by the idea that this country would significantly weaken our commitment to the European Court of Human Rights. Indeed, they were full of praise for both the way in which we approached human rights and the Human Rights Act, which they emphasised to us is viewed internationally as a gold standard and a model example of how human rights can be effectively embedded into domestic law and practised. It was almost embarrassing how full of praise they were for our position at the moment; they were dismayed at the thought we might withdraw from that position.

But it is nice, at a time when this country’s reputation, internationally, is not of a high order, for us to be so well regarded—we were of course founder members. It is true, as has been said, that our record, in terms of the European Court of Human Rights, is better than that of any other country in relation to size of population. We come out best because we do it so well, and because our courts have a good relationship with the European Court of Human Rights. That link would be cut by what the Government are proposing to do.

I was a colleague of my noble friend Lord Murphy for a time—in a more junior position, I hasten to add. I remember when the Northern Ireland legislation was going through, I had to certify that the Bill conformed to the Human Rights Act. I had never been a Minister who had sign this sort of thing, and I checked with officials. I said, “Please convince me now, I want to be absolutely sure what we’re doing”, and they did assure me. It was a healthy process for a Minister to have to go through that and be assured that what I was signing was absolutely right.

When the prisoner voting rights issue came up some years ago, I went with the human rights Select Committee to Strasbourg. There was dismay in Strasbourg at the thought that we would breach a decision of the European Court of Human Rights, which we had never done before, because that would encourage the countries of the notorious abusers of human rights to say, “Well, if the United Kingdom can do it, why shouldn’t we?”

I support the comments made by my noble friend Lord Murphy about the damage that this will do to the perception of human rights, whether it is the Good Friday agreement that would be weakened in Northern Ireland, or the position in Scotland. We are embarking on a dangerous path. I hope, even at the 11th hour, the Government will see sense and not pursue this path.

Photo of Lord Etherton Lord Etherton Chair, Charities Bill [HL] Special Public Bill Committee, Chair, Charities Bill [HL] Special Public Bill Committee 4:37 pm, 14th July 2022

My Lords, it is a great privilege to participate in this debate, with so many moving and informative speeches. I want to mention in particular the speech of the noble Lord, Lord Cashman, which I thought graphically highlighted the way in which minorities, particularly the LGBTQ+ communities, have been assisted by having to go to Strasbourg—but, before the Human Rights Act came into force, at tremendous cost and with an inevitable delay.

Mention has been by a number of people of the now celebrated case of Smith and Grady, and a second case, Lustig-Prean and Beckett, against the United Kingdom, in which the brave claimants, all of whom had served in the military, had been dismissed from the military simply because they were of a homosexual orientation, not because they committed any sexual acts. In Strasbourg they successfully challenged the decision and policy of the Government, having failed, inevitably, before the divisional court and the Court of Appeal in this country. It was with great prescience that my noble and learned friend Lord Brown of Eaton-under-Heywood, who gave the leading judgment—in fact, the only judgment—in the divisional court, said that the Ministry was fighting against the tide of opinion, and it was only a matter of time before the policy would be revoked at an international level—and that is indeed what happened. But it took six years for that to be achieved, and at great cost.

I want to reinforce and support everything that was said by the noble Baroness, Lady Chakrabarti, about this remarkable Act—and the Human Rights Act is a remarkable Act. It melds together all sorts of apparently conflicting aspects of our constitution, and it works in a way which is not reflected anywhere else. She described it as a unique British invention. I would say it is a masterpiece, when you look at the way it is worked, of statutory provision.

I just want to reinforce that by looking at the three objectives that the Government set out for what they wanted to achieve through this Act and the way that they have been very effectively achieved. The first, on which almost everybody here has spoken, is bringing rights home. They have been brought home in the form of the obligation in Section 6 of the Act that:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

We have to remember that before this Act, you could challenge the actions and policies of a public body by judicial review in our domestic courts only on the basis of so-called irrationality—the Wednesbury principle. There was no ability here to claim damages or an injunction for breach of a convention right.

However, “bringing rights home” here was to be achieved in a way that would ensure that the United Kingdom observed its international obligations as a member of the Council of Europe. There was to be a high degree of alignment between domestic law and the convention, and no major gaps. That is what has been achieved by Sections 3 and 4.

I am afraid that I do not agree with the analysis of the noble Lord, Lord Sandhurst, in his criticisms of either Ghaidan or indeed Section 2. That section says that the courts, when considering a convention issue, are to take Strasbourg into account. This has served to our advantage to enable what the noble Baroness, Lady Chakrabarti, described as judicial dialogue, which has worked in our favour in cases where Strasbourg has failed to appreciate particular features of our own domestic courts and has then subsequently changed its jurisprudence.

As regards interpreting our provisions consistently so far as possible with the conventions concerned, it has always been open to the Government—and it is still open to the Government in any case, always—to put through Parliament legislation overturning decisions that they do not like.

Finally, and most importantly, parliamentary sovereignty was to be retained and reinforced. That is the effect of Section 4 of the 1998 Act, which provides for the courts a discretion to make a declaration of incompatibility but not to strike down or render invalid a piece of legislation.

At the end of the day, I would simply say that, as Sir Peter Gross said, having received 150 written submissions and held numerous meetings across the country, very little is wrong with this legislation. Anything that is found to be wrong can be corrected. The proposed new Bill of Rights is not moving forward; unfortunately, it will be moving, retrogradely, backwards.

Photo of Lord Morgan Lord Morgan Labour 4:43 pm, 14th July 2022

My Lords, like I think every previous speaker in the debate, I regard the repeal of our Human Rights Act as a backward and indeed reactionary step which would greatly harm this country. Only one other country in Europe, Belarus, has hitherto repealed human rights legislation, and I do not think we particularly want to keep company like that.

It is worth pointing out, as have various other speakers, that it is a concept with a great deal of all-party consensual agreement. The initial pressure for the European Convention on Human Rights came from no less a figure than Winston Churchill, although I do not think that it figures too prominently in the current Prime Minister’s work on that great man. The charter was written largely by Sir David Maxwell Fyfe, with the assistance of Sir Samuel Hoare, and much valuable work was done by the Society of Conservative Lawyers—I gather that the noble Lord opposite is a member, and I congratulate him—which pressed for the European convention to be enforced and incorporated into domestic law. The original movement towards having a European charter was of course under the aegis of Ernest Bevin, Labour’s Foreign Secretary. The Liberals were always very enthusiastic for this, as were the nationalist parties of Scotland and Wales. It would be extraordinary and tragic if Britain were the first country to withdraw its signature from this Act.

Many noble Lords have pointed out how minorities, people with very little power or authority of their own, have required the assistance of the Human Rights Act. In what is left of my five minutes, I would like to point out, as my noble friend Lord Murphy did, the damage this policy will do to the unity of the United Kingdom. If we continue with it, we will be a very disunited kingdom. The Scottish Parliament and Scottish legal system are deeply intertwined with the human rights charter and the general concept of human rights. The Scottish Human Rights Commission is very active and, as my noble friend Lord Murphy pointed out, drawing on his own matchless experience, this policy is extraordinarily damaging in Northern Ireland at a time when, with its Sinn Féin Government, it is on the cusp of a very perilous period in its history. In Scotland there is now a serious proposal for a referendum on independence. This is a gratuitous and quite unnecessary way of juxtaposing different visions of justice and therefore throwing relationships within these islands back into conflict. Wales is less closely involved because Welsh jurisdiction is not devolved, which I regret. The report by the noble and learned Lord, Lord Thomas of Cwmgiedd, argues strongly for that; even so, human rights legislation has, for example, has been involved in the advancing of the Welsh language.

This is not a serious proposal. There are grounds for looking at the British constitution, but this is not one of them. It is taken out of a spirit of revenge. It is trying to deal with opponents, institutions and individuals who have opposed this Government and it is a policy taken for the wrong reasons. We have a Government who are close to the point of collapse, and a Prime Minister who has already passed that point. It is tragic that the result of these confusions and misunderstandings is that humane freedom, a staple of British culture—I am tempted to say of British civilisation—is now threatened. I hope very much that your Lordships’ House will reject this.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 4:49 pm, 14th July 2022

My Lords, I too warmly congratulate the noble Baroness, Lady Whitaker, and the Labour Party on initiating what has been an excellent debate. I am not normally here at this time on a Thursday, as my noble colleagues know.

I have particular interest in this issue as a member of the United Kingdom delegation to the Parliamentary Assembly of the Council of Europe. We oversee the operation of the European Convention on Human Rights and the court.

First, I remind the House that the Human Rights Act was passed by our Parliament, as the Labour Party said at the time, to bring rights home, enabling UK citizens to take alleged breaches of ECHR rights before UK courts, as the noble Baroness, Lady Kennedy, rightly said. That is being misrepresented by people opposite.

It now seems that the Government are intent on ripping up the HRA and introducing this new, weaker, so-called Bill of Rights in order, sinisterly, and among other things, to make it harder for asylum seekers to make Britain their home.

Despite the best efforts of the right-wing press to convince us otherwise, the court in Strasbourg and the convention were not designed by some European Union bureaucracy; they were designed by us, as others have so rightly said. In fact, the UK initiated the convention project out of a shared belief that human rights throughout Europe should be common to all. It is particularly vital, as many of us here know, for the countries that were formerly part of the Soviet Union.

The court in Strasbourg is clearly still a place where the UK has influence, and all of us who are delegates to PACE elect the judges to the court after very careful scrutiny. I can tell noble Lords that it is a large bench of very distinguished judges. I have met our own British judge, who is a very distinguished member. They are all like that; we look at things very carefully.

Attempts to replace the Human Rights Act with a Bill which will limit our accountability to the ECHR, combined with recent suggestions that we should entirely remove ourselves from the court, from the convention and presumably from the Council of Europe, severely diminish our standing as a leader on human rights in Europe. I think it is Suella Braverman who has been promoting that. I think many of us will be glad to see that she is out of the race to be leader of the Conservative Party and Prime Minister.

We should be under no illusion as to the effect these proposed changes will have. Without the Human Rights Act and by extension the ECHR to protect basic human rights, the most marginalised groups in society will suffer. Article 8 protects the right to respect for family life and has been successfully used to prevent the deportation of migrants and refugees when it has been deemed that deportation would put their family members at risk. The new Bill proposes tightening the definition of risk to “extreme harm” and limiting its application to children, not all family members. Beyond the risks of regressive reinterpretations of the ECHR, the new Bill also seeks to introduce the concept of individual responsibility, which would seem directly to undermine the idea that all should be equally entitled to human rights. The Bill of Rights would also require individuals seeking to make a human rights claim against a public authority first to seek permission from a court, which would create yet another barrier for vulnerable people.

A number of Members mentioned the excellent memorandum from the Scottish Human Rights Commission. I say as a former Member of the Scottish Parliament that I agree with it and strongly support what it has said to us. In summary, it says that in its view, the UK Government’s proposals threaten to damage protections available under the Scotland Act,

“unsettling the Scottish devolution and introducing confusion and uncertainty for Scotland’s public authorities.”

A number of Members have asked the Minister to deal with this in his reply. I reinforce that and ask him to do so clearly and explicitly.

If the Human Rights Act needs reform, it certainly should not be driven by populist policies targeting people who have in many cases already suffered human rights abuses. The Government should instead consider much-needed reform of our criminal justice system, which is a much more pressing priority, given that current failures in the court and prison systems are encouraging rather than preventing crime, as we see in Scotland as well as in England and Wales.

If the United Kingdom is to remain at the forefront, as we should be, of the defence of human rights around the world, the Government need to make a rapid U-turn as quickly as possible, and I hope this is done under whoever is the new leader of that party opposite.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 4:55 pm, 14th July 2022

My Lords, I congratulate the noble Baroness, Lady Whitaker, not just on introducing this debate but on her lifelong attention to human rights. I am very pleased to have heard her speech today.

The ECHR, passed in 1950, set out a series of articles for the protection of human rights and fundamental freedoms. In the last 70 years, there have been just 16 protocols that have added to or amended those original articles. Unlike Parliament, which creates or amends statutes at will, it is clearly an impossible task to keep up with all the changes in the communities and societies of the disparate 45 countries represented in the Council of Europe. That this would be so was realised by the original drafters of the covenant, a team led by British lawyers. Their answer was to use the European Court of Human Rights not just to resolve human rights claims but, by its decisions, to keep the convention up to date.

From the very beginning, therefore, the European Court of Human Rights has frequently delivered decisions that were outside the original 1950 language of the articles. The technique that the judges of the court employ is called the teleological interpretation of the texts. That methodology has always been the predominant mode of interpretation in civil law jurisdictions and in public international law. No other approach is practicable if the law is to be kept up to date.

A former English judge, Sir Humphrey Waldock, who served as the president of the court for eight years, said in 1981:

“The meaning and content of the provisions of the Convention will be understood as intended to evolve in response to changes in legal or social concepts”.

That is the living instrument to which the noble Baroness, Lady Kennedy of The Shaws, referred. For example, the court in recent years—by reference to Article 2, the right to life, and Article 8, the right to family life—has developed the concept of a human right to clean air. That is the context in which the noble Baroness, Lady Jones of Moulsecoomb, presented her Bill last Friday, seeking to embed such a right as a human right expressly into the domestic legislation of the UK. The court’s judges continuously and conscientiously research the developing principles worldwide, whether from United Nations human rights committees, conventions or elsewhere, in order to establish a European consensus. There is nothing arbitrary about their method; they do not pluck things out of the air.

The purpose of the Bill that the Government have introduced is to turn the clock back. While not resiling formally from the convention, Section 3 (2) of the Bill says:

“A court determining a question which has arisen in connection with a Convention right … must have particular regard to the text of the Convention right, and in interpreting the text may have regard to the preparatory work of the Convention”.

That work was done in 1949 and 1950. That is, as the noble Baroness, Lady Chakrabarti, termed it, the originalist approach par excellence—and I suspect that the noble Lord, Lord Cashman, would not find reference to LGBTQ+ rights in the preparatory work done in 1949. Similarly, under Clause 3(3), the UK court:

“may adopt an interpretation of the right that diverges from Strasbourg jurisprudence”, while under Section 5:

“A court may not adopt a post-commencement interpretation of a Convention right that would require a public authority to comply with a positive obligation.”

Post-commencement? It commenced in 1953.

Last October, the Lord Chancellor Mr Raab told the Telegraph on his appointment:

“I don't think it’s the job of the European Court in Strasburg to be dictating things … whether it's the NHS, whether it’s our welfare provision, or whether it’s our police forces … We want the Supreme Court to have a last word on interpreting the laws of the land, not the Strasbourg court”.

As he must know, UK courts are under no obligation to do more than take into account judgments of the European Court of Human Rights. They are not binding; the court does not dictate. What it does is set the standard of human rights for the 45 members of the Council of Europe.

It is the empty and useless rhetoric of the Tory party which lies behind this proposed British Bill of Rights, a false and dangerous belief in British exceptionalism. The Attorney-General Suella Braverman—I will not be as cruel as the noble Lord, Lord Carlile, with regard to her recent deposition—displayed her narrowness of vision and total lack of understanding when she demanded in the course of her approach to becoming premier that the UK withdraw from the European convention altogether. What understanding of the law is that in our Attorney-General?

A much nobler cause is surely to promote and support a common standard of human rights—the universal rights to which the right reverend Prelate the Bishop of St Albans referred. That is the reason why Russia has been expelled from the Council of Europe, as my noble friend Lady Ludford mentioned. It is the cause which Winston Churchill, a Conservative premier who—perhaps the noble Lord, Lord Morgan, will agree—never lost his Liberal roots, took up in the aftermath of the Second World War. This Government are turning their back on history.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs) 5:02 pm, 14th July 2022

My Lords, there have been so many moving and informative speeches today. I think I am right that the only noble Lord who has spoken in favour of the Government is the noble Lord, Lord Sandhurst. All other noble Lords have spoken extremely eloquently against the Government’s proposals. I thank my noble friend Lady Whitaker for the way she introduced some of the practical benefits of the Human Rights Act and some of the myths promoted by parts of the press. I also echo her tribute to Baroness Greengross, who spent a lot of her working life promoting human rights as well.

I open by quoting Stephanie Boyce, president of the Law Society of England and Wales:

“The erosion of accountability trumpeted by the justice secretary signals a deepening of the government’s disregard for the checks and balances that underpin the rule of law. The bill will create an acceptable class of human rights abuses in the United Kingdom – by introducing” under a new permissions stage a bar on claims deemed not to cause ‘significant disadvantage’. It is a lurch backwards for British justice. Authorities may begin to consider some rights violations as acceptable, because these could no longer be challenged under the Bill of Rights despite being against the law. Overall, the bill would grant the state greater unfettered power over the people, power which would then belong to all future governments, whatever their ideologies.”

That is the view of the Law Society, but we have heard the views of many other equally respected bodies which provide close to a united opposition to the Bill proposed by the Government.

Over the past two decades, the HRA has given individuals a mechanism to enforce their rights in practice. It was originally introduced to bring rights home by incorporating the ECHR into UK law. As I have said on other occasions, I was a delegate to the Council of Europe at the time that that legislation was going through. It has enabled people to challenge unlawful policies, to be treated with dignity by public authorities and to secure justice for their families without having to go to the European Court of Human Rights in Strasbourg. We have heard from noble Lords, not least my noble friend Lady Kennedy of The Shaws, about the practicalities of getting to Europe before the Human Rights Act was introduced.

The Government are seeking to repeal and replace the Human Rights Act with a new Bill of Rights, a move that exceeds the Government’s manifesto commitment—a point made by the noble Lord, Lord Carlile. The Bill ignores the recommendations of the independent panel of experts as well as other expert groups. Such a change to our constitution—to the rights afforded to individuals across the UK—demands careful analysis and debate, including of its impact on the devolved nations. We have heard particularly informative contributions today from people who have been involved in Northern Ireland, Scotland and Wales. They have asked the noble and learned Lord a question about whether those authorities within the United Kingdom will be asked for an opinion on the Government’s proposal and what sort of consultation there will be with the devolved Administrations.

I have noticed that there is no date for the Second Reading of the Government’s Bill in the House of Commons—at least, that I could see on the parliamentary website. It may well be that the new Prime Minister will not share the current Lord Chancellor’s enthusiasm for the Bill. I was going to make similar points about Suella Braverman and her comments, but my comments are a couple of days out of date. Things have obviously moved forward quickly since then. I hope that the comments from the noble Lord, Lord Carlile, did not precipitate her withdrawal from the Tory party leadership contest.

Nevertheless, when will the Government accept that it is not possible to legislate domestically to change international treaty obligations? These obligations are binding and we are part of the fabric of those international agreements in the first place.

The Lord Chancellor has claimed that 70% of successful human rights challenges are brought by foreign national offenders who cite a right to family life, in the first instance, when appealing deportation orders. This figure is highly contested by legal professionals I have spoken to. They say that the figure is unknowable. What is not contested is that the number of foreign criminals deported by this Conservative Government is down by a quarter on last year. Is it not simply the case that the reason these criminals are not deported has less to do with the Human Rights Act and more to do with the Government’s incompetence in seeing through that process?

The Labour Party is proud of the Human Rights Act. A number of people in this debate played a part in it as it was introduced through this House, and in how it has developed over the last 20 years. The Conservatives’ Bill of Rights divides the nations of the UK and weakens the rule of law during an international crisis. On top of that, it increases red tape for British people seeking justice. The Conservatives are more interested in picking a fight and sowing divisions with this Bill, rather than tackling the cost of living crisis, which we have heard about, and the crisis in our criminal justice system. These are surely the most important issues that we should be dealing with in this Parliament. I understand that the noble and learned Lord is in an impossible situation when I ask him what he thinks will happen to the proposed Bill.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice 5:09 pm, 14th July 2022

My Lords, I thank and pay tribute to the noble Baroness, Lady Whitaker, for bringing this very important debate to this House, and indeed to all your Lordships who have spoken so eloquently this afternoon.

First, I note that there seems to be a remarkable degree, perhaps to one’s surprise, of common ground. The Government entirely agree that the domestication of the Human Rights Act was an extremely good thing. We have heard today many good examples of the positive impact of the domestic Human Rights Act. I want to make it clear that we do not want to throw those out of the window, as has been suggested. We are not “abolishing a jurisdiction”; we are not “withdrawing”; we are not “ripping up”. We are remaining in the convention; the convention rights continue to apply; public authorities continue to be bound. Once that premise is accepted, we can perhaps get on to the more pertinent debate, which is exactly how we balance the various competing considerations that arise in the application of the Act. I say again: the Act itself and the principle are fully accepted. I associate myself with the tributes paid earlier to the noble and learned Lord, Lord Irvine of Lairg, who introduced the Bill, to my noble and learned friend Lord Mackay of Clashfern, who was closely associated with the development of human rights in this country, to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who was also extremely prominent, to the noble Lord, Lord Cashman, and to a large number of other people here and elsewhere who have contributed, rightly, to the development of a human rights culture.

I am happy to accept the invitation from the noble Baroness, Lady Whitaker, to pay tribute to the work of the British Institute of Human Rights. Much of what is good about the Human Rights Act comes from its everyday application, in which training and guidance by the BIHR and many other organisations have been vital. That training will continue to be applicable to the Bill of Rights, as we want to ensure that the positive enjoyment of human rights in this country continues unabated.

Having, as it were—I hope—cleared away that ground, perhaps I may next refer to the pertinent question raised by the noble Lord, Lord Ponsonby, as to exactly what the timing of the Bill now is. As your Lordships are aware, the parliamentary timetable has in recent days become somewhat squeezed. As I understand it, the Second Reading in another place is now planned for September, so that detailed consideration of the Bill in this House is unlikely before the autumn. It is true that, by then, a new Prime Minister will be in post—we do not yet know who—but, as of today, I am unaware of any relevant change in the Government’s plan to bring the Bill forward as I have just outlined.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Has the Minister given further consideration to the proposal by a number of committees in both Houses that there should be pre-legislative scrutiny?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

Not as far as I am aware, is the direct answer to the noble Lord’s question. The original Bill of Rights was not subject to pre-legislative scrutiny as far as I know. However, I would myself like to use the extra time we now have in a process of outreach to your Lordships’ House and to other interested organisations—I saw Sir Peter Gross yesterday; I have plans to visit each of the devolved legislatures shortly—to explore and understand all these points and see how far we can narrow the differences between us. I respectfully suggest that there are issues that we need to grapple with here and we need to grapple with them sensibly. This Bill clearly arouses very strong feelings and quite a lot of anxieties, but I hope that we can resolve a lot of them and quite a lot of other problems in the course of sensible and reasoned debate.

At one end of the spectrum, there seems to be an almost entrenched view that the 1998 Act is more than perfect and that the slightest change will bring the whole edifice crashing down, or at least give rise to unacceptable risks. At the other end of the spectrum, which has been mentioned several times, there is the point of view that we should withdraw from the convention altogether. The latter is not the Government’s position, and whatever may be said by someone in their capacity as candidate for the leadership of a political party is not relevant for today’s purposes. The position of the Government is quite clear: to stay in the convention and to reconfirm the rights that flow therefrom that are clearly set out in the Bill. From the Government’s point of view—

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

Would the noble and learned Lord be kind enough to help Members of your Lordships’ House, Members of another place and, above all, the public by informing the remaining candidates for leadership of the Conservative Party of what he has just said so that they get it right during the TV debates that will start tomorrow?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

With respect, I do not think that I have any channel of communication with the candidates for the leadership of the Conservative Party, but what I have just said is on the record and may be referred to. That is the Government’s position.

As your Lordships have observed, I personally find myself—as do the Government—with cannons to the left and cannons to the right. So in the valley of calm reasoned debate in this House, I would like to explore with your Lordships the centre ground to which this Bill is directed. In my repeat of the Oral Statement on the Bill on 23 June, I used the phrase “constructive balance”: balance between the roles of the legislature and the judiciary; balance between the domestic courts and the Supreme Court, on the one hand, and the Strasbourg judges, on the other, having regard to subsidiarity and the margin of appreciation; and balance between rights and responsibilities. To that theme of balance, I add three related themes: constitutional clarity, the separation of powers and reinforcing the fundamentals that underpin human rights.

I will address constitutional clarity first. After 25 years of the Act in operation, it is important, in the Government’s view, to restate certain basic principles. These include the following: that the convention rights are an integral part of the domestic law of the United Kingdom; that the ultimate judicial authority in interpreting those rights is the Supreme Court, taking into account our domestic legal traditions in particular; and that the possibility of divergence from Strasbourg is recognised—that is not in dispute; it has always been there, as has been pointed out already. Those basic principles are effectively recognised in Clauses 2 and 3 of the Bill, which are declaratory of the existing position.

It is important that the convention retains a very special and unique constitutional status: no other Act of Parliament provides a machinery where another Act of Parliament, even a subsequent Act of Parliament, can be subject to a declaration of incompatibility under Clause 10. However, when that arises, it is the Government’s view that the separation of powers must prevail. At the moment, under Section 3, we have this curious provision whereby the courts can read down the Act to have a different meaning to that which Parliament intended. The Government wish to clear up that constitutional muddle, if I may put it that way, and put the responsibility for bringing the legislation in question into line with the convention back where it belongs—that is to say, the legislature that first enacted the legislation in question.

Photo of Baroness Donaghy Baroness Donaghy Chair, EU Services Sub-Committee, Chair, EU Services Sub-Committee

I apologise for taking up the House’s time but just to clarify: the Minister is referring to a balance, but it seemed to me to be a balance between the judiciary and the Executive, and the role of Parliament was not clear in what he was saying. I wonder whether he could clarify that. It seemed to be a power grab for the Executive.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

My understanding is that, in these circumstances, any necessary change to the legislation will be brought back to Parliament through the machinery of a statutory instrument, and required to be laid before the House by affirmative resolution. There is every ability for Parliament to determine what should then be done, so it is a balance between the legislature and the judiciary, and not, in the Government’s view, between the judiciary and the Executive, but let us explore that point further in due course.

Secondly, public authorities remain bound by the convention, as is set out in Clause 12. The main change here is in relation to this question of “positive obligations”; that is a conceptual issue which is being addressed in Clauses 5 and 7. Essentially, the underlying issue is: should human rights law under the convention develop a kind of de facto legislative or quasi-legislative content, with potentially serious implications for public expenditure or giving one policy objective priority over another, or are those kinds of decisions for the elected Members of the legislature? Where does the balance lie between the electorate, the whole process of elections, and democracy, on the one hand, and, as it were, judicial interventions on the other hand? That is, in my submission, a conceptual issue, which we should in due course grapple with. That is going to be, and is, the issue of the separation of powers.

Finally, in this brief response I draw attention to a third theme, hardly mentioned today, which is the reinforcement in the Bill of the Government’s commitment to freedom and human rights in the widest sense: freedom of speech under Clause 4, jury trial under Clause 9, the protection of journalists’ sources under Clause 21. There are many points that could be made, but I hope that that brief and admittedly high-level summary at least helps convey why the Government argue for the constructive balance that the Bill aims to achieve. It is not, in the Government’s view, weakening human rights; it is enhancing public confidence in the whole structure. One has to realise that not everybody is as convinced of the value of the Act as it now stands as are some of the noble Lords who have spoken today. This will, in the Government’s view, enable greater public confidence to be maintained in the human rights structure. This is not a new issue—

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

To what would the Minister ascribe this lack of public confidence? Is it the sayings of the Lord Chancellor, or of Suella Braverman? Why is there a lack of public confidence in human rights in this country?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

There is, as far as one can tell, an important part of public opinion that is very doubtful about the role of this legislation and the Strasbourg court in our constitutional settlement. Why that is the case is not for me to speculate, but it does seem to be difficult to say that it is not the case that there are sections of the public that have less confidence in this legislation than Members of this House.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

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”.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

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.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

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.

Photo of Baroness Whitaker Baroness Whitaker Labour 5:32 pm, 14th July 2022

My Lords, it may not be often that one is instructed by one’s own debate, but I have learned much. I am extremely grateful to all the speakers who have put their wisdom, expertise and conviction to the service of one of the most important discourses of our time, perhaps of any time—one that crosses the boundaries of human nature, cultural concepts and ideas of what justice really consists of. It would be invidious, and would certainly take too long, to go through all the interesting contributions; in any case, as noble Lords have said, these debates will of course continue.

I thank the noble and learned Lord, Lord Bellamy, for his considered and thoughtful response. It opens up more grounds for debate, to which I look forward, not least on my noble friend Lady Chakrabarti’s point. When Ministers say that a Bill’s proposals will be perfectly all right because they are bound to be compatible with the Human Rights Act, what will happen if that Act has been substantially amended? But we can leave that for the next round of debates.

I have just one very quick thought. I shudder to think what the noble and learned Lord the Minister would be obliged to say if we proposed the adoption of the United Nations convention on economic and social rights. But anyway, I beg to move.

Motion agreed.

House adjourned at 5.34 pm.