European Convention on Human Rights

Lord Falconer of Thoroton Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, it has been an impressive and important debate. Not one speaker suggests that we leave the European convention or resile from the incorporation of the convention rights that we have incorporated into our law.

I join noble Lords in congratulating my noble and learned friend, Lord Irvine of Lairg, on procuring this debate. There are people who have played their part in procuring the incorporation of the human rights convention into our law. The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill, are among them. However, one person above all others stands out in procuring it as part of our law. There is no doubt that it would not have become a part of our law without him—the noble and learned Lord, Lord Irvine of Lairg.

I point to two particular things that the noble and learned Lord did. First, he persuaded my party—and we were the only party who took this view—that we should make it a part of our commitment to the future. He did that by persuading Mr John Smith and Mr Tony Blair, and when we got into Government he made sure that it happened. Remember, this sort of law is not popular among politicians. I can assure you, having been there, that without the noble and learned Lord, Lord Irvine of Lairg, it would not have become a part of the domestic law of this country. I agree with my noble and learned friend Lord Hart of Chilton that it is better than any statue or portrait that one has the Human Rights Act 1998 as one’s achievement. The Act has had a profound effect on our law and on the culture of our constitution. The right reverend Prelate the Bishop of Bath and Wells might well be right when he says that it provides a positive contribution to humans on a spiritual journey.

The twin pillars of our constitutional settlement are our parliamentary democracy and the rule of law. The rule of law carries with it two principles. The first is that the conduct of individuals should be judged in accordance with the law applied equally to all by an independent judiciary. The second is that each of us is entitled to have our human rights protected. The incorporation of the convention into our domestic law confirmed that the rule of law did indeed carry with it the entitlement to the protection of our human rights, and it provided, for the first time in English law, a definition of what those rights were.

For all the strengths of the common law, it had never, before the Human Rights Act 1998, offered a comprehensive definition of what an individual’s human rights were. In consequence, it had not provided to the individual protection of those rights. Real protection of human rights can come only from the law and not through politics. Politics reflects domestic democratic tides. Politicians are swayed by what is popular. The people, or a majority of them, will frequently favour courses that do not respect the rights of individuals. If the rights of individuals cannot be protected against the state expressing the will of the majority, irrespective of an individual’s rights, there is in reality no adherence to the rule of law. I strongly agree with what the noble Lord, Lord Pannick, and my noble friend, Lord Wills, said when they said that one of the purposes of our convention is to protect people who are unpopular and who the majority, given a chance, would not protect.

The effect of introducing the convention into our domestic law is that there is immediate and real protection for people’s basic rights. Let me give just one example. In the mid-1990s, three members of our Armed Forces were investigated by the military because it was thought they might be homosexual. The investigation discovered that they were homosexual and they were dismissed from the forces. They appealed to the English courts, saying, “This can’t be right”, and the English courts said that it was not right, but nothing could be done about it because no part of English law protected them. The men went to the European Court of Human Rights, which held that their treatment was a breach of the convention, but the court could do nothing for them, because it happened just before the convention had been introduced into our domestic law. Now the position is different. Such rights can be enforced in our domestic courts. As a consequence, when people talk about human rights, the “basic fundamental rights”, as Lord Bingham described them, exist and there is protection.

Since the Human Rights Act has been passed and these rights have been incorporated into our law, they have been the subject of sustained criticism and attack—not just because the media want to publish salacious stories, but because, in essence, the rights are frequently there to protect people who cannot protect themselves because they are not powerful enough or are unpopular.

The right to privacy comes from the convention. It is a right that prevents the publication of personal secrets. It is a right that prevents the newspapers revealing that a child has AIDS. It is a right that allows you to make telephone calls without someone else listening in to see whether they can publish the contents of those calls. It is a right that allows you not to have your voicemail box hacked into by the press. It is a right that allows you to live your family life behind closed doors without anyone knowing what is going on.

My noble friend Lord Prescott put his finger on it when said that we can make a choice as a society; we can say that press freedom is so important that anything goes and you can publish anything you like about people’s lives, or you can make the choice that we rightly make whereby certain things are private and should be kept private. If you are serious about a right to privacy, it has to be enforced by the courts. That means looking at each individual case and asking, “Is this part of someone’s private life?”. If it is, we will protect it unless there is a public interest—for example, if that person is taking a hypocritical, commercial or political stance that entitles people to know about it. Otherwise, they should be entitled to privacy. The only way in which that can effectively be enforced is by the courts looking at each case.

The consequence of my noble and learned friend Lord Irvine’s courage is that that is effectively the current law. Do not change it. Do not listen to the beguiling appeal of the press, which says, “We want to be able to tell you which footballers are having affairs, even though we know it will damage their children. They should have thought about that before they had the affairs”. How does that protect their children? There may well be footballers who are acting purely for commercial interests, but the courts can draw the balance between the two.

The effect of incorporating the European Convention on Human Rights is that we have a law that is there and is sensible. The attacks on the judges are, with the greatest respect to those who do so, utterly misplaced. All those noble Lords who have said in this debate that the judges are only doing what the law says are absolutely right. That is but one example of the effects of incorporation. There are so many. For example, the European convention ensures that you will not be separated from your wife when you are elderly because it is convenient for the local authority to put one of you in one care home and one in another. That would be a breach of Article 8. The convention also helps you if, for example, you are in a care home and left for long periods on a commode because the local authority will not provide adequate care for you. That is part of your personal dignity which the Human Rights Act ensures will be protected.

The effect has been not only on individual rights but on the culture of the courts. No better example was given than that given by my noble friend Lady Kennedy of The Shaws on the comparison between Belmarsh, where the judges see themselves as having to protect individual rights, and Liversidge v Anderson, where the judges, in the middle of the war, saw their role as being simply to back up the Executive. That is a very significant change.

What changes have been suggested? It was suggested that the European Court of Human Rights act more quickly—I agree. More money should be spent on it—I agree. There should be better parliamentary scrutiny—I agree. The margin of appreciation issue should be addressed—yes, but that does not require a change in the law. The coalition has set up a commission of distinguished people, including the noble Lord, Lord Lester, and the noble Baroness, Lady Kennedy of The Shaws. They will ensure that incorporation is not retreated from. However, I think this is a mistake. The important thing is to defend the principle of those rights and their incorporation into our law. Setting up the commission raises expectations that something will change when, as I understand it, it does not intend to change anything.

I ask the Minister to give a guarantee that the Government are not going back on the incorporation of human rights into law. He will give that assurance because he is a decent man who represents a political party that is not going to go back on incorporation. Do not create the expectation that we are going to change the position. Say that we are proud that we incorporated these rights and that it has made a real difference. It was a moment in time when we did it, because my noble and learned friend was there and he managed to achieve it. It would never happen now, because political parties are not brave enough, but there is no going back. That is a very good thing, and I hope that the noble Lord, Lord McNally, will say so.