Human Rights Act 1998

Baroness Kennedy of Shaws Excerpts

Thursday 14th July 2022 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

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.