Lord Ponsonby of Shulbrede (Lab)
At Oral Questions earlier today the noble and learned Lord, Lord Bellamy, described the Bill of Rights as a better balance between the judiciary and the legislators, between UK judges and Strasbourg and between rights and obligations. We will have ample time to test that aspiration when the Bill comes before this House, probably in September, but this is more than a rebalancing of the scales; it is potentially a practical reduction in the ability of victims to get a remedy through the ECHR framework.
I shall start with one practical example, which is the Worboys case. Over six years, the black cab rapist John Worboys raped and sexually assaulted more than 100 women. Relying on the positive obligations under Article 3—the right not to be treated in an inhumane and degrading way—two of his victims challenged the Metropolitan Police’s failures to bring Worboys to justice and stop his attacks. A UK court held that, thanks to the Human Rights Act, the police are under a legal duty to take reasonable steps to investigate credible allegations of serious crime. The question for the Minister is: why does the Lord Chancellor want to remove these positive obligations that have been used by victims of crime to seek justice?
There are other examples, but it is right to focus on the victims of this proposed legislative change. The other examples that are very much in the public domain are the Hillsborough disaster, Deepcut Barracks and the issues raised about “Do not resuscitate” notices. There is real fear that this so-called rebalancing of the scales will lead to a diminution of the remedies practically available to victims.
There are other serious implications of this legislation. The situation in Northern Ireland was alluded to earlier today. This is an in-depth and complicated question, but is the Minister willing to go further and reflect on the potential implications of the Bill for the Good Friday agreement?
The chairs of the Public Administration and Constitutional Affairs Committee and the Justice Committee in the other place, the Joint Committee on Human Rights and the Constitution Committee have all written to the Lord Chancellor asking that he submit the Bill of Rights for pre-legislative scrutiny. Can the Minister explain why the Lord Chancellor is refusing to use this legislative opportunity?
The Lord Chancellor claims that these proposals will put the Supreme Court in the driving seat, but, if the UK remains a signatory to the ECHR, it will follow the Strasbourg court’s rulings, within the margin of appreciation afforded to all national courts. Given that we will still ultimately have to follow the ECHR within the margin of appreciation, what do the Government’s proposals actually change?
There are a lot of questions about this legislation. There is huge expertise in this House, and I am sure that the noble and learned Lord himself has considerable expertise in this matter. But there are profound questions about the practical impact on victims and their ability to access the human rights framework.
Lord Paddick (LD)
My Lords, I hope the House will forgive me, but I am neither a lawyer nor a historian—I gave up studying history at 1066—so I would be grateful if the Minister could correct me if any of my observations are erroneous.
In his 1859 book On Liberty, John Stuart Mill talked about the tyranny of the majority—an inherent weakness in majority rule, in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions. As I understand it, the origins of the European Convention on Human Rights are from when the democratically elected German Parliament passed the 1933 enabling Act, which enabled the Chancellor to bypass the system of checks and balances in the Government and the laws created under them, allowing actions that could explicitly violate individual rights prescribed in the Weimar constitution. Perhaps more accurately, it could be said that the Chancellor decreed that certain people were no longer citizens and therefore did not have the rights given to them under that constitution. After the war, this led Winston Churchill to ask predominantly British lawyers to draft the European Convention on Human Rights, not least because the sovereign will of a democratically elected parliament needs a backstop of universal human rights to protect the individual from the state and the tyranny of the majority. Churchill reportedly said that
“it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time”—
this was presumably before he knew about proportional representation.
I also welcome the Minister’s appointment to the Front Bench. He will no doubt say that the UK will not leave the European Convention on Human Rights but will just ensure that it is interpreted in accordance with what Parliament says it means and how British courts interpret it. This is where I get somewhat confused. My understanding is that the Government propose to allow British courts to ignore European Court of Human Rights case law, if they disagree with it, but that individuals will still have the right to take their case to the European Court of Human Rights, which will take account of its own case law. Other than wasting thousands of pounds of taxpayers’ money on fighting cases in Strasbourg that could have been settled in UK courts, what is the point of UK courts ignoring the European Court of Human Rights, if the next stop in the appeal process is the European Court of Human Rights?
The whole purpose of international conventions, and of sovereign countries signing up to them, is to ensure that the rights that they confer are universally applied. The UN refugee convention is slightly different, in that there is no court of arbitration or international court to adjudicate where different sovereign countries interpret the convention in different ways. But, in the Nationality and Borders Act, the Government effectively said, “This is the British Parliament’s interpretation of the UN refugee convention, and British courts must abide by what Parliament says the convention means.” The Government have said that rights conferred by the UN refugee convention do not apply to class 2 refugees—that is, to those whom Parliament, through the Act, has said are excluded from those rights.
In the absence of the equivalent of the European Court of Human Rights for the UN refugee convention, it will be for British courts to decide on the legality of the Nationality and Borders Act. However, that approach will not work—or that is my understanding—with the European Convention on Human Rights, because there is an international court that arbitrates on ECHR cases. How does the approach work—that the UK Parliament is sovereign and British courts will interpret the European Convention on Human Rights in accordance with what we say—if the UK remains a signatory to the European convention and subject to the rulings of the European Convention on Human Rights? Can the Minister also say whether the UK Parliament being sovereign means the Westminster Parliament or the Scottish and Welsh Parliaments? What happens if those Parliaments refuse to pass legislative consent Motions?
One of my favourite expressions is that of the late Magnus Magnusson, the former host of “Mastermind”, who described a difficult question as one you do not know the answer to. Perhaps we should now add that the European Court of Human Rights going beyond reasonable interpretation of the convention is a case where the British Government disagree with that court. In other words, is this Bill of Rights without any real substance, or the end of universally applicable human rights in the UK? This Government have tried to end universally applicable human rights for refugees. Is this the Government’s attempt to extend that ban to every citizen?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
I thank noble Lords for those remarks, which are very sincerely put forward and entitled to deep respect on this side of the House. In due course, if and when the Bill reaches this House, we need to grapple with all those points. If I may, I should like to deal quickly with the points made and then see whether I can expand a little on what I was saying this morning about the constructive balance that this legislation seeks to achieve. In response to the noble Lord who asked whether this was the end of human rights as we know it or whether the Bill did not do anything, I think the answer from the Government’s side is that we are trying to strike that constructive balance in the middle.
Forgive me if I omit some points, but I shall take them very quickly. On the Worboys and Hillsborough points, and those related matters, the Government take Articles 2 and 3 extremely seriously and it is not the intention to weaken them. In relation to positive obligations, the focus of those provisions is what one can call the extended jurisprudence, which extends into what one can call socioeconomic rights—social benefits, clean air and all those related matters, which in the Government’s view are primarily a matter for Parliament and not the judiciary or to be addressed under this human rights legislation.
I am sure that we will come to Northern Ireland in more detail in due course. The Government are quite satisfied that the provisions of the Bill are compatible with the Good Friday agreement and other relevant Northern Irish considerations. As for pre-legislative scrutiny, the Government have consulted fully on the Bill; the consultation included draft clauses, and it seemed appropriate for the Government to proceed as they are now proceeding. A main emphasis of the Bill is to underline, and encourage UK courts to take advantage of, this margin of appreciation. As a result of the initiative taken by the UK in establishing the Brighton declaration, which took effect only in August last year, the principle of a margin of appreciation and subsidiarity are written into the convention.
It should be appreciated that, in 1950, Winston Churchill and the others who were engaged in this matter did not think that they were abandoning parliamentary sovereignty; they just did not. They thought that they were conferring on a court the ability to interpret a convention but they did not by any means reach the point that this Parliament was surrendering its sovereign right to legislate as it saw fit. We can get into detail with John Stuart Mill, what happened in the 1930s and all that sort of thing, but we are now in 2022 and faced with the present legal situation.
Having made those brief comments on the points already made, I would like to see whether I can make good my earlier point on constructive balance. First, let us take the things in this Bill that do not change. We remain in the convention. The convention rights are still protected in domestic law. Public authorities continue to be obliged to act in accordance with the convention unless there is superior primary legislation to the contrary. People will still be able to rely on their rights in any court or tribunal; if there is a question later about the so-called permission stage, I will deal with it then. UK domestic higher courts are still able to give a declaration of incompatibility with the convention; it will then be for Parliament to resolve what will happen next. Claimants who have exhausted all their local remedies in the domestic jurisdiction are still able to go to Strasbourg. It may not happen very frequently— personally, I suspect that it will not happen—but that opportunity is still there. Article 46, which was mentioned this morning, is still there.
In the occasional case where there is a finding that the UK is in breach of the convention, there is necessarily a political settlement through the Committee of Ministers procedure to find ways of ensuring compliance with the convention. In this context, I do not use the word “enforcement” because one does not really talk about enforcement of the convention; ways of compliance are traditionally found through political action in the Committee of Ministers.
All that remains as it has been. So what is changing? That is the second part of my explanation. In the Bill, it is clarified that the domestic courts are not bound to follow the jurisprudence of the Strasbourg court. As far as I know—I am happy to be corrected—it has never been the case that the decisions of Strasbourg are considered binding in a general sense. They may be binding in an individual case against an individual state but the general jurisprudence is not binding and the ability of domestic courts, whether in the UK or another member state, to diverge from the jurisprudence is recognised and established under the convention.
That was certainly the position of Sir Peter Gross in his independent review. That distinguished review and the panel who assisted Sir Peter, to whom I take this opportunity to pay tribute, recommended that UK law, including common-law legislation and Scots law, should take centre stage—that was the phrase used—and that it should be recognised that UK courts have the right to diverge from the generality of Strasbourg jurisprudence. That is something that the Government are acting on; it is what is currently in Clause 3 of this Bill and is in Section 2 of the Human Rights Act. So that is the first thing.
Secondly, the courts will not be required to rewrite legislation as they are required to under Section 3 of the existing Act to make it compatible with convention rights. Thirdly, and of great importance, particular weight is attached to freedom of speech under this Bill and there is greater protection for journalistic sources. Courts will not, however, be able to impose new positive obligations on public authorities and will have to consider carefully the impact on such public authorities by applying existing ones. We can come back to that. There are other protections but I am already beginning to run out of time. It will be more difficult for foreign criminals to invoke Article 8 on the right to private and family life. There will be a permission stage and there will be various other procedural changes.
The final thing to mention in this list—I am sorry it is a long list—is that the Bill is excluding extraterritorial jurisdiction or military operations abroad, subject to there being in place comparable legislation to give effect to all our obligations under the laws of war and related points. This Bill is not abolishing human rights. It is preserving, strengthening and increasing democratic oversight. That is the Government’s case and I look forward to further detailed debate.
Viscount Hailsham (Con)
My Lords, I have a great deal of sympathy for the general position articulated by my noble and learned friend, and I expressed my reasons earlier. If we transfer to the Supreme Court the role of the ultimate arbiter of the convention rights, what impact does that have on obligations overseas and international obligations we have already undertaken? Would he give this House, either today or more fully later, a fairly comprehensive statement on the impact on our international obligations so that noble Lords can take a considered view on where the balance of advantage lies?
Lord Bellamy (Con)
I thank the noble Viscount and gratefully accept his invitation to give such a considered and more detailed view at a later stage.
Baroness Chakrabarti (Lab)
I welcome the Minister once more. He spoke at some length, rightly, on the interpretation provisions, which are obviously incredibly important given the relationship between our continuing commitment—as I understand it—to the Convention on Human Rights and the need to enforce these at home. Clause 3, which he referred to, quite rightly says:
“The Supreme Court is the ultimate judicial authority”,
as the noble and learned Lord agreed is the current provision. Yet, the Supreme Court is told in Clause 3(3)(a) that it
“may not adopt an interpretation of the right that expands the protection”
beyond the Strasbourg court. In other words, the Strasbourg court may not expand human rights and nor may the Supreme Court, which looks a little bit like the Government telling courts over there and over here what their limits should be in protecting people’s human rights.
Lord Bellamy (Con)
I thank the noble Baroness for that question, which will require further and detailed thought as we go along. The essential purpose of this part of the Bill and the provisions to which the noble Baroness refers is to incorporate into legislation the test recently enunciated in the Supreme Court by the noble and learned Lord, Lord Reed. He said essentially that the UK courts should not go further than the Strasbourg court under human rights legislation unless they are satisfied that the Strasbourg court would. This is not intended to do any more than incorporate in statutory form what the Supreme Court has already said.
Lord Faulks (Non-Afl)
My Lords, I welcome the noble and learned Lord to his place and congratulate him on his appointment. I declare an interest as having been one of the members of the Commission on a Bill of Rights, which the coalition Government set up. The majority, which included the late Lord Lester, concluded that there should be a British Bill of Rights. It has now been nearly 25 years since the Human Rights Act. I do not think there was any pre-legislative scrutiny of that Act, nor was there a Green Paper or a White Paper. I respectfully agree with the Government that it is time to look again at how the Human Rights Act has worked in practice, so I welcome this opportunity. We will no doubt scrutinise carefully what is in the Bill and whether it makes an improvement.
I welcome the emphasis on freedom of speech—I declare an interest as the chair of the Independent Press Standards Organisation—in particular the protection of the disclosure of journalists’ sources, which I ask the noble and learned Lord to comment on. Could he help me at all in what way they will be further and better protected, or may be, by this Bill, while entirely applauding what lies behind those clauses?
Lord Bellamy (Con)
I thank the noble Lord for his comments, with which I respectfully and very largely agree. Freedom of speech is, of course, a keystone of our constitution. That is what the Act is intended to reinforce. On journalistic sources, the Bill’s wording is intended to make it plain that when a balance has to be struck, as it occasionally does, on revealing journalistic sources, then “great”—I think that is the word— but predominant weight is given to the protection of journalism, which is so essential to free speech in our society.
Baroness Hamwee (LD)
My Lords, I wonder whether the Minister, whom I too welcome to his position, can unpack a sentence in yesterday’s press release, issued at the time of the Bill’s publication. It says:
“The Bill will ensure courts cannot interpret laws in ways that were never intended by Parliament”.
That seems to be about something different from compatibility. It is not about ambiguity in legislation, where there might be a Pepper v Hart issue. Is this a suggestion that the courts should be reading parliamentarians’ minds if they have not managed to express themselves properly?
Lord Bellamy (Con)
It is always difficult to read parliamentarians’ minds; that is absolutely true. I think the noble Baroness is referring to Section 3 of the present Act, which specifically asks the court to rewrite legislation—to change what Parliament intended. That power is being repealed.
Lord Garnier (Con)
My Lords, I join others in welcoming my noble and learned friend to this House and to his new responsibilities as a Minister. With all due respect, I ask him to persuade his colleagues in government when advancing the cause of this particular legislation not to rely, when seeking to knock down Article 8 points, on factually inaccurate case law, such as that somebody was allowed to remain in this country because they had a relationship with a cat. Far too many of these silly examples are often used by Ministers to denigrate the European convention. It does not add to the advance of any discussion.
Can my noble and learned friend please tell me the policy reason behind why the provision in Clause 8(5)(c) describes a “qualifying child” of a person who is under threat of deportation to be someone who
“has lived in the United Kingdom for a continuous period of seven years or more”?
That suggests that a child under the age of seven who, although not a British citizen, has lived all their life in this country does not qualify as a qualifying child. That does not sound very civilised to me.
Lord Bellamy (Con)
If I may respectfully agree, this legislation should not be based on the kind of fairy tales which the noble and learned Lord just mentioned. As for this House, we will progress on the basis of the forensic and evidence-based analysis of the situation. I confess that, on the hoof, I am not immediately able to help him with Clause 8(5). If I may, I shall take that away and, if I am able and it is appropriate, come back to the House on the point he makes.
Lord Anderson of Swansea (Lab)
My question concerns the precedent set by allowing our national courts to trump the European Court of Human Rights. The Minister will be aware that one of the great problems of the Council of Europe is the number of serial defaulters: countries that refuse to accept the judgment of the court. I speak as someone who was once a Foreign Office adviser to our delegation and served on the legal affairs committee of the Council of Europe for 10 years. In the past, we have spoken from a position of strength, even when we disagreed with the judgment or reached a compromise, as we did over the Hirst case on prisoners’ rights. Will we not in future, because of this position, give support to those countries who wish to default and lose our high status as a country which honours its obligations?
Lord Bellamy (Con)
The noble Lord makes a fair point. My reply is that we have no reason to suppose that the UK’s exemplary record in Strasbourg will in any way weaken as a result of this legislation. As the noble Lord knows, we have far and away the best record of compliance—certainly in recent years. In 2020, of the 268 cases brought against the United Kingdom, in only two were breaches found. Our record, plus our very active and continuing involvement in the Council of Europe, in which the noble Lord was previously involved, continues, and will continue. That is why I use the word “constructive” together with the word “balance”.
The Lord Bishop of Blackburn
I support the provisions in the Bill that strengthen the right to free speech and the freedom to believe, and the expression of that belief. I have a concern over Clause 20 and the Secretary of State’s ability to make a decision which limits the right to appeal, regardless of the will or good processes of the court. What assurances can the Minister give that interventions will happen only where the will of Parliament can be reasonably understood on a matter? Without such assurances, I fear we will find ourselves hostages of the political will and aspirations of the particular Secretary of State that we have at the time, and cannot be sure that decisions are made for the good of the law over the good of politics.
Lord Bellamy (Con)
I thank the right reverend Prelate. Perhaps I may take that question under advisement and place a response in the Library in due course, or whatever is the proper mechanism, to reassure the right reverend Prelate on that point. I take this opportunity to mention that the freedom of practice of religion is also specifically mentioned in the Bill, as he just pointed out.
Lord Wolfson of Tredegar (Con)
First, I warmly welcome my noble and learned friend to the Front Bench. Although he has achieved the giddy heights of the Front Bench, I have not yet seen him on legal Twitter—which, of course, is a wonderful place. Some lawyers on Twitter were able to pass comment on the Bill before it was even published, which is indeed a remarkable feat. The response so far seems to be that some people regard the Bill as doing nothing very much and just tinkering on the margins, while others see it as the death of human rights in this jurisdiction. I am sure that the Minister will agree on one point: that they cannot both be right. Against that background, does the Minister agree that what we really need in this country, especially in this House, is a proper debate about human rights? Public law is too important to be left only to public lawyers. Therefore, does he look forward, as I do, to proper debate on this very important Bill, which I warmly welcome?
Lord Bellamy (Con)
Indeed, my Lords, I warmly welcome the prospect of the full, frank and very free debate we shall have in this House—an informed and instructive debate. The Government will be listening very carefully to the points made.
Lord Bruce of Bennachie (LD)
My Lords, is the ability to appeal to the Strasbourg court for very many people more theoretical than real? The court is understaffed; it takes a great deal of time to get there and a great deal of money to process a case. In reality, are many people not being denied their human rights, in all practical purposes, because the right of appeal is only theoretical for them?
Lord Bellamy (Con)
My friend—the noble Lord—is quite right that the European Court of Human Rights in Strasbourg is grappling with enormous problems. That is why the Government take the view that the vast majority of cases are better dealt with in our own jurisdiction, which is familiar to the general public and in which the public and the Government have confidence. The orientation towards cases being dealt with here in the UK is both pragmatic and right in principle.
Baroness McIntosh of Hudnall (Lab)
Will the Minister momentarily set aside his ministerial responsibilities and address us in his capacity as a very distinguished lawyer? On the subject of the potential of the Bill to fall into the hands of those not of good will, I think it could be damaging in future to the human rights which he clearly supports personally and wishes to see protected. I think that he will agree that it is a constant worry to anyone watching the progress of any legislation that it might be capable of being misused by those who come after. Does he see any danger of that happening with this legislation?
Lord Bellamy (Con)
My Lords, it is a danger to which we need to be alert. As I am presently advised, I do not see that danger. The convention rights are in the Bill; we are still in the convention and those protections have not changed. It is very difficult to imagine a situation in which a future Government might take us out of the convention—they might, but that is not the position of the present Government. So far as I can, I give the noble Baroness the assurance she seeks.
Lord Hannan of Kingsclere (Con)
My Lords, when the European convention was promulgated in 1950 and enshrined in 1953, this country already had strong and trusted laws in place that guaranteed free speech, religious pluralism, habeas corpus and so on. Will my noble and learned friend the Minister confirm that charters of this kind are not so much about the creation of new rights as about appointing a different set of people to arbitrate rights or to come and interpret between competing claims? Can he identify any specific advantages that have come to this country as a result of our adherence to the European convention?
Lord Bellamy (Con)
My noble friend is quite right that the rights in this country go back many years. I will not, as a cliché, invoke Magna Carta, but it is perfectly plain that this country has a long and proud history of freedoms—they were not called human rights then—over very many years. When the Human Rights Act 1998 was introduced, the Government of the day described it as bringing rights home. I agree with my noble friend that they never actually left in the first place.
Viscount Waverley (CB)
My Lords, freedom of speech is to be a central pillar of the UK Bill of Rights. Article 8 has been referred to on multiple occasions this afternoon. Is it anticipated by the Government, in light of this statement on the protection of sources, that the case of Mr Assange could indeed centre around that right under a future UK Bill of Rights?
Lord Bellamy (Con)
I will resist the temptation to refer to a pending case. I hope noble Lords can forgive me.
Lord Brown of Eaton-under-Heywood (CB)
By reference to the question of the noble Lord, Lord Hannan, does the Minister remember a time when, for example, prison staff read all prisoners’ correspondence to stop them petitioning? There were a number of practices with regard to prisoners, but it was only under orders of the Strasbourg court—orders which the Home Office was happy to lose; I was arguing them—that our prison regime was brought into an acceptable state and prisoners were allowed any rights at all.
Lord Bellamy (Con)
Historically, of course, the noble and learned Lord is completely right, as one would assume. At this point, I take my ministerial hat off and put my personal hat on and take this opportunity to pay tribute to the European Court of Human Rights over the years, and indeed to the Council of Europe. In answer to my noble friend Lord Hannan, I say that the very fact of our membership and the dissemination of rights through the Council of Europe that it has enabled is a very positive element for Europe in general, in my humble, respectful and personal view. That does not mean that everything is necessarily fine, and the Government’s view is that it is time, after over 20 years of the Human Rights Act, to look at it again and do some rebalancing.
Lord Faulks (Non-Afl)
My Lords, is it not right, in fact, that we will gain a great deal by still looking at decisions of the European Court of Human Rights in the future, but that we should also look at other courts in other jurisdictions? There has perhaps been a danger of the common law developing since the Human Rights Act based almost exclusively on Strasbourg jurisprudence, while there is wisdom elsewhere in the world as well.
Lord Bellamy (Con)
I respectfully and fully agree with my noble friend; there are many other sources. The Canadian charter of rights is a prime example of what he says. Having worked personally in both the civil system and a common-law system in other lives, no one is more convinced than I am of the strengths of the common law on which we should draw for our freedoms.