European Convention on Human Rights

Lord Thomas of Gresford Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the introduction of the Bill of Rights into Hong Kong in 1991 towards the end of British government put into effect the International Covenant on Civil and Political Rights in that territory. It was a Conservative Government who introduced it and, with the aid of the noble Lord, Lord Wilson of Tillyorn, and later the noble Lord, Lord Patten, negotiated that the Bill should be enshrined in the basic law which now applies to Hong Kong.

That Bill of Rights remains as a bulwark of the right to life, to freedom of expression, assembly and religion, the right to equality and to the presumption of innocence, the right to property and to privacy, a right to travel, and a prohibition against arbitrary arrest, detention, imprisonment, search and seizure. I mention these matters because you have only to go a few miles over the border to see what it is like to live in a country where no such rights are enshrined in the constitution or, if they are, they are not put into effect. It is a stark contrast with what happened in Hong Kong.

The Bill of Rights in Hong Kong in its original form gave the courts the power to strike down any law that was incompatible with those rights. The Privy Council here in the case of Lee Kwong-kut in 1993, in which I was involved, tested that power in relation to a criminal charge where the burden of proof had been reversed. The noble and learned Lord, Lord Woolf, who gave the judgment in that case, concluded:

“The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and will be debased in the eyes of the public ... It must be remembered that questions of policy remain primarily the responsibility of the legislature”.

The Labour Government, led by the noble and learned Lord, Lord Irvine, and possibly in the light of that 1993 judgment, were less ambitious than their predecessor. The remedy for a breach of the European Convention on Human Rights under the 1998 Act, as the noble and learned Lord has already said, is merely a declaration of incompatibility, and it is left to Parliament to remedy the defect that the court demonstrates.

We have yet to consider the legislative reaction of this Government to the decision of our Supreme Court in the case of F in April 2010, to which the noble and learned Lord, Lord Irvine, has already referred. When a Statement was recently made by the Home Secretary and repeated in this House, I said that I was shamed by the language used. The noble and learned Lord has referred to the Home Secretary using expressions such as “disappointed and appalled” and to the Prime Minister finding the judgment “offensive” and questioning the sanity of the court.

We have not heard any more about that. The issue was whether a person could have the right to apply to remove his name from the sex offenders register and not have to give notice of wherever he happened to be in the world. Perhaps it is now realised that the solution put forward by the Home Secretary—that it should be left to the discretion of a policeman to revoke the order of a court—has not been further advanced because clearly it would not survive scrutiny.

I concur with the wise words of the noble and learned Lords, Lord Irvine and Lord Mayhew, about current criticism of the European convention. I will deal with the beneficial effect of the incorporation of the convention by illustrating the changes that have taken place in courts martial, largely as a result of the work of Gilbert Blades and John Mackenzie, who took a highly unsatisfactory system of courts martial to be examined by the European court. I was surprised two weeks ago to be approached by a senior judge advocate who praised the reforms to the system that had been caused by the application of the European convention. I thought that he might have been one of those crusty old judges, but he was not.

The court martial system was challenged in the European court by Corporal Findlay in 1996. The soldier had pleaded guilty at his original trial, but complained that the system whereby the convening officer appointed the members of the court and the prosecutor, directed the charges and then, post trial, became the confirming officer, was not independent. The European court upheld his complaint, which was the catalyst for the Armed Forces Act 1996. Parliament passed the Act, which set up an independent Army prosecuting authority with prosecuting officers who were drawn from professionally qualified lawyers and were independent of the chain of command. Further cases followed in the European Court that led to other changes. Some noble Lords may recall that it led to the ending of the practice in naval courts martial where the defendant was pushed in at the point of a cutlass.

The Armed Forces Act 2006 created a single tri-service prosecuting authority, known as the Service Prosecuting Authority, under the leadership of an independent director of service prosecutions. There was opposition. When I proposed that the pool for the panel should be widened, a noble and gallant Lord said to me in the corridor on the way to the Bishops’ Bar: “You should be shot”. The first DSP is Bruce Houlder, a civilian Queen's Counsel. He has introduced further excellent changes that make the system the envy of military courts in other jurisdictions, as I found out last month at an international seminar at Yale University. That is the way in which the European convention has changed the military justice system so much for the better. It is no longer a case of “march the guilty bastard in”, but a court that gives justice to the defendant.

I consider the Human Rights Act 1998 to be the outstanding piece of legislation of the previous Labour Government—next to the Government of Wales Act 1998. I congratulate the noble and learned Lord, Lord Irvine of Lairg, not simply on introducing the debate but on being the architect of an important piece in the structure of justice in our country.