Bill of Rights

Lord Ponsonby of Shulbrede Excerpts

Thursday 23rd June 2022 Lords Chamber

[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?