Constitution: Gracious Speech

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 25th June 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I want to touch briefly on the proposed British Bill of Rights. Of course, I recognise that a delay for consultation is now proposed, but there could be no clearer commitment than for such a Bill. Indeed, just two days ago in the other place, Dominic Raab, the new Justice Minister, full of enthusiasm, stated:

“We will legislate for a Bill of Rights to protect our fundamental rights, prevent abuse of the system and restore some common sense to our human rights laws”.—[Official Report, Commons, 23/6/15; col. 748.]

He continued by saying that, although leaving the convention was not the Government’s objective, no option was off the table.

There is time today to make only one or two brief points. First, in the debate on the gracious Speech on 1 June, the noble and learned Lord, Lord Mackay of Clashfern—whom I am happy to see in his place—with regard to our failure to implement Strasbourg’s judgment on prisoner voting, confessed to,

“a feeling of great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound”.—[Official Report, 1/6/15; col. 179.]

That of course was entirely consistent with evidence that the noble and learned Lord had given the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, as recorded at paragraph 92 of its report, HL Paper 103. Later in his speech, the noble and learned Lord, Lord Mackay, suggested a possible way of dealing with this sort of situation short of withdrawing from the convention. He suggested—as reported at cols. 179-80 of the Official Report for 1 June—that the convention should recognise the possibility that member states such as the UK whose Parliament is sovereign and not subject to having its Acts set aside or modified by the courts of that country should be exempt from the obligation to implement a decision of the Strasbourg court that one of its statutes contravenes the convention, provided only that the state’s legislature passes a resolution which, for stated reasons, declines to implement the Strasbourg court’s decision.

Clearly, the noble and learned Lord was attempting to avoid the unthinkable possibility of withdrawing from the convention and to put forward a constructive suggestion. However, with the best will in the world, it seems to me inevitably doomed. In the first place, it is surely inconceivable that all the states party to the convention would agree to such an amendment of the convention. In any event, would we really be happy to achieve a position where, for example, if the Russian Duma, or indeed the Irish Parliament, wanted to recriminalise homosexuality, it would be perfectly able to do so? In truth, we must recognise that our preparedness to accept the very occasional unwelcome ruling against us is the price we pay for the huge benefits to the wider population of the Council of Europe of subjecting less liberal states to the constraints and disciplines of the convention.

I should make it plain that I, too, regret a number, although in fact only a very small number, of Strasbourg’s decisions. Frankly, they do not include that on prisoner voting—a decision that we could satisfy simply by giving the vote only to those serving 12 months or less. Surely we are, after all, trying not to outlaw prisoners but to instil in them some sense of civic responsibility. However, I regret one or two Strasbourg decisions—for example, the cases of Al-Skeini and Al-Jedda, which are in direct disagreement with our own final court’s decisions, to which I was party respectively in this House and in the Supreme Court, and which tend to undermine our forces’ fighting capabilities in armed conflicts abroad. I am troubled, too, by the extent to which Strasbourg has extended the scope of the Article 8 right to respect for private and family life.

As to the application of the convention to warlike operations, there are possible solutions. Indeed, I canvassed them in a conference last month at Oxford, but there is not time to develop them today, although I hope that we may one day come back to them. With regard to Article 8 and, in particular, its impact on the deportation of foreign criminals, let us see how the changes to the legislation introduced by last year’s Immigration Act work out. According to the Times, there is shortly to be a Court of Appeal case which questions those changes.

There has been extensive debate during recent years about Section 2 of the Human Rights Act requiring our courts to “take into account” Strasbourg’s jurisprudence on the convention. High authority in our courts dictates that we should not only take account of that case law but, where it is settled, directly on point and authoritative —for example, a clear decision of the Grand Chamber—follow it. The object of the 1998 Act was, after all, to “bring rights home”. If our courts were to refuse to apply a clear Strasbourg decision, the inevitable consequence would be, as the noble Baroness, Lady Kennedy of The Shaws, mentioned, to drive the disappointed litigant back to Strasbourg to establish the claim there.

Of course, success in Strasbourg would bind the Government only in international law, as with prisoner voting, where primary legislation stands in the way of domestic enforceability. But I can see some arguments for preferring that to the present position, which, just very occasionally, requires our Supreme Court to follow a Strasbourg case against its own better judgment—those arguments were indeed canvassed by the noble and learned Lord, Lord Irvine of Lairg, back in December 2011. But it is one thing to elaborate Section 2 of the Act to spell out that our courts are not obliged to follow Strasbourg or, indeed, to repeal the 1998 Act—essentially reverting to the position before 2000, when we merely took account of the UK’s international law obligations—but quite another to legislate contrary to certain specific convention requirements as determined by the Strasbourg court, and that is what I understand the Government presently have in mind. We shall need to watch their proposals very carefully indeed.