Human Rights Act

Alistair Carmichael Excerpts

Tuesday 30th June 2015 Westminster Hall

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I beg to move,

That this House has considered the future of the Human Rights Act 1998.

I am delighted to welcome you to the Chair, Mr Betts, and to see that we have a healthy turnout of Members and non-Members here today. I am grateful to the organisations that provided briefings ahead of today’s debate. I should particularly like to place on the record my appreciation of the efforts of Liberty, Amnesty International, and the Equality and Human Rights Commission.

The Gracious Speech included a commitment by Her Majesty’s Government to introduce proposals for a British Bill of Rights. I was pleased that it was framed in such terms for two reasons. First, it is still apparently the policy of Her Majesty’s Government that it should be approached at least on a British, if not UK-wide, basis. Secondly, I was pleased that they are seeking to bring forward proposals and not, as in respect of other commitments in the Gracious Speech, legislation. I take it from that that we are in a place where there is still a debate to be had and where thinking is still going on within government, and I welcome that. I hope that today’s debate is an early part of the debate that will be conducted elsewhere, within the Chamber and the Select Committees in this House and the other place, and even within the various all-party groups. I also hope that this debate will, as befits a subject of this magnitude, be conducted in a thoughtful way and one that accepts good faith and differences on all sides.

The Minister has a significant background in the area of human rights and I do not question his good faith in this matter. I would probably disagree with him both on the definition of the rights and also on the way in which they might be perfected, but I certainly accept his background and his good faith. I hope that the debate in government will not take as its starting point the paper published last year by the former Lord Chancellor, the right hon. Member for Epsom and Ewell (Chris Grayling), which was entitled “British Bill of Rights and Responsibilities”.

The right hon. and learned Member for Beaconsfield (Mr Grieve), whom I am pleased to see in his place today, said that that paper contained a number of howlers which are quite simply factually inaccurate. Those who have known the right hon. and learned Gentleman for as long as I have will know that for him such language borders on the intemperate. Those within government who are considering how to proceed in this way would do well to listen to his words. I expressed that view at the time as a Cabinet Minister. I felt that that contribution to the debate failed to take proper account of the way in which the Human Rights Act had become part of the constitutional architecture of the United Kingdom.

The right hon. and learned Member for Beaconsfield also asked the question that goes to the nub of the issue: what are we seeking to achieve here? Having seen recent pronouncements within government, that remains the question. To answer that question, however, we first need an answer to a much more fundamental question: what is the Government’s intention in relation to the European convention on human rights? Is it that we should remain party to the convention, or will the Government at some future stage, if they are unable to achieve their stated aims, countenance withdrawal from it?

It is worth reminding ourselves of exactly what the Human Rights Act does and the change that it wrought after its implementation. In a dry legal sense, it allows access to convention rights through our domestic courts. Section 2 of the Act says that in reaching judgment our UK domestic courts must take account of the European Court of Human Rights judgments. Whether this was to be extended to make it a binding precedent was considered in the other place during the passage of the Bill and was expressly excluded, so I think the ambit and the extent of the operation of section 2 is an important part that is often misunderstood or just ignored.

The Human Rights Act has brought much more than dry jurisprudence to our legal system and to our constituents. It has offered many of our fellow citizens a basic, fundamental right to respect and dignity in their dealings with government and other public bodies. To take a few instances, it has allowed people with mental health problems the opportunity to retain some rights and some control over their own lives when dealing with the national health service; it has allowed victims of crime to insist on proper investigation of the crimes from which they have suffered; and it has allowed families to be kept together in circumstances in which the operation of the state might otherwise have kept them apart. At its most basic, it has in one instance ensured the right to life. In one case that was offered by way of a working example, a patient suffering from dementia was on a ward where he had been subject to a “do not resuscitate” order. On investigation, it was found that the doctor in charge of the ward had imposed such an order in respect of everybody on the ward without discrimination. At its most fundamental, the Human Rights Act protected the patient’s right to life.

I suspect that such cases are the easy cases. If we dealt only with the easy cases, we probably would not be here today. There is no denying that the application of the Human Rights Act has produced a number of controversial cases. The cases of Abu Qatada and those relating to the right of prisoners to vote are two that spring most readily to mind. This goes to the heart of the matter for me. Human rights are not just there for the nice people. If we are to defend human rights in a meaningful and worthwhile way, we have to be prepared to defend the rights of the unworthy individual from a legitimate authority, or the right of an unpopular minority against the popular majority. Perhaps I should declare an interest: as a Liberal Democrat, I know what it is to be part of an unpopular minority.

For such reasons, the Human Rights Act is inevitably going to be unpopular in government, because it stops Ministers doing what they might otherwise wish to do and what they might otherwise find it expedient to do. That is why, if the protections are to be meaningful, they must be overseen by the judiciary, and not by Parliament or by the Executive, who are insulated from the mood of public opinion at any given time. That brings us back to the question posed by the right hon. and learned Member for Beaconsfield: what are we hoping to achieve here? In truth, the Abu Qatada case and the right of prisoners to vote are cases that, before the Human Rights Act, would have got to Strasbourg. Those are exactly the sorts of cases that we saw going from this country over the years.

The question that then arises is if we are trying to get round these cases by somehow seeking to repatriate jurisdiction, what does that mean for the United Kingdom’s future as a contracting party to the European convention on human rights? When the Minister responds to the debate, I hope he will answer this question: what is the Government’s position in relation to our continued future as a contracting party to the convention on human rights? Are there circumstances in which the Government would be prepared to leave the convention? Doing so would put us in rather select company: it would be us and Belarus, and that is not the company I envisaged the United Kingdom finding itself in. In previous Parliaments, I worked with Amnesty International and other organisations on the worldwide abolition of the death penalty. I campaigned with various groups in the United States, South Korea, Japan and elsewhere. The UK has tremendous standing on human rights across the world. We would lose a lot if we walked away from the convention and put ourselves in the company of Belarus. We should be doing what we can to bring Belarus within the convention; we should not be seeking to join it outside.

I want briefly to consider the constitutional architecture of which the Human Rights Act is now such an important part. For example, it is hardwired into the devolution settlements in Scotland, Wales and Northern Ireland.

[Fiona Mactaggart (Slough) (Lab)]

Before the hon. Gentleman gets to that issue, he has just been dealing with UK jurisdiction delivered by the 1998 Act. Is he aware of the appalling delays that existed before the Human Rights Act? For example, in the case of Abdulaziz, Balkandali and Cabales, which I was involved in when director of the Joint Council for the Welfare of Immigrants, women were separated from their husbands for seven years before getting a judgment that proved that the then British immigration rules breached their human rights.

[Mr Carmichael]

Indeed; the time it took to get such cases to court—and the need to have the means to do so—was a glaring injustice, and that situation was affected by the introduction of the Human Rights Act. People needed money, or somebody behind them with the means, to get access to human rights. We should not return to that.

On the devolution settlements, the Scottish Parliament and the Welsh Assembly both have the Human Rights Act hardwired into them: their Acts must be compatible with it. It has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention. Given recent votes in that Parliament, I do not see how that is going to happen.

The situation in Northern Ireland is even more acute, because there the Human Rights Act is the subject of part of the Good Friday agreement. The second part of the “Rights, Safeguards and Equality of Opportunity” section of the agreement states:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

The creation of the Police Service of Northern Ireland and the body overseeing it, the Northern Ireland Policing Board, have given effect to that.

[Ms Margaret Ritchie (South Down) (SDLP)]

The right hon. Gentleman makes compelling points about the need for the Human Rights Act to be retained. In relation to the devolved settlement in Northern Ireland, the Good Friday agreement was enshrined in the Northern Ireland Act 1998, with a direct coincidence of human rights provisions. Is the right hon. Gentleman aware that the Northern Ireland Committee on the Administration of Justice recently stated unequivocally that any breach of human rights legislation, or any plan to withdraw it, would be a breach of the provisions of the Good Friday agreement and of the Northern Ireland Act 1998?

[Mr Carmichael]

Indeed. That illustrates perfectly what I say about the Human Rights Act being hardwired into these agreements, including that settlement. Underpinning that, we should remember that many parties on both sides—in both communities—in Northern Ireland took a massive leap of faith when entering into the Good Friday agreement in the first place. Many of them were prepared to take that leap of faith because of the assurances given by the Government about protecting human rights. Let us not forget that the roots of the civil rights movement are to be found in that conflict; for many people, human rights have always been at the heart of that movement. We should also not forget that the peace process remains a very delicate animal, as was made apparent just before Christmas. We should never take its continuation for granted.

Let me return to the question: what are we seeking to achieve here? If there is a risk to the stability and sustainability of the Northern Ireland peace process, is it worth it? Either there is a UK Bill of Rights with the widest possible operation or we will end up with different standards of human rights protection applying in different parts of this—I use the term advisedly—United Kingdom. That is not what my party, and other parties represented in this Chamber, campaigned for last September. Human rights protection should be uniform across the whole United Kingdom.

I fear that in introducing this proposal the Government have created more problems for themselves than they have realised. I offer the Minister one piece of assistance before I conclude. My learned noble friend Lord Lester of Herne Hill recently delivered a lecture entitled “Do we need a new Magna Carta?” in which he spoke about how human rights can be protected by a British Bill of Rights. I will happily send the Minister a copy, if he needs it.

If we are to move beyond the Human Rights Act, it can only be done in a way that improves, not diminishes, the protection that is available to our citizens.

[Mr Clive Betts (in the Chair)]

We are going to struggle for time, so I am putting a five-minute time limit on speeches. I hope that everyone keeps to that, or makes shorter speeches if they can, to help us through.

--- Later in debate ---

[Mr Raab]

The hon. Gentleman is alluding to the idea of having a middle course between throwing the baby out with the bathwater, as some have described it—tearing up human rights, getting rid of the convention and not replacing it—and trying to reform the current model by looking at the way the convention has been applied and interpreted. There are not huge numbers of objections to the black letter law of the convention’s text, but the way it has been applied and extended is a matter of concern. All that will be the subject of debate and consultation.

[Mr Alistair Carmichael]

I say, in passing, that I hope we never get to the stage where the implementation of law by the courts is entirely to the satisfaction of the Government. Surely the problem is that if we get to a point where we have a British Bill of Rights but remain a contracting party to the European convention, which has a higher standard of human rights protection, anyone dissatisfied with their rights as applied in the UK domestic courts under the British Bill could still have recourse to the wider protection of the European Court in Strasbourg.

[Mr Raab]

The right hon. Gentleman is tempting me to prejudge the substantive content of the Bill and the consultation. He has raised some interesting points, which we will no doubt thrash out in due course; I look forward to that.

I will refer to some of the principal concerns about the Human Rights Act, as that is the subject of the debate. Given the time restraints I will refer to just a few examples from what is by no means an exhaustive list. The first is the exponential expansion of rights that the design of the Human Rights Act, whether tacitly or otherwise, has promoted. It has encouraged a rights inflation that, as has already been acknowledged, has tended to undermine the so-called liberal model of human rights, shifting away from what people like Isaiah Berlin would refer to as negative liberty, or the John Stuart Mill model of shielding the citizen, towards imposing obligations on the state rather than constraining it. If that were in any doubt, the textbooks—I am sure hon. Members across the House are familiar with them—are littered with examples of the celebration of that, whether through the living instrument doctrine in Strasbourg or our own case law.

The practical effect of rights inflation has been to dilute personal responsibility. The growth of rights—the expansion of the realm of rights—increases the power of the individual, however nefarious or otherwise, to trump the good of the rest of society. The more that extends beyond the bedrock of core liberties, the more corrosive the effects. I will give one brief illustration, to highlight the fact that personal responsibility is being eroded or diluted: the claim that the Government’s welfare to work policy amounted to forced labour under the European convention.

I should say straight away that that claim failed, but the fact that it made its way through the UK court system to the Supreme Court is telling. It is striking that lawyers thought they could stretch an article of the convention that was designed, after the experience of concentration camps during world war two, to address grave issues of slavery and forced labour so as to attack the principle of conditionality in welfare reform. It is just one illustration of how the HRA has proved rather malleable material for the ingenious twisting of the basic conception of human rights, rather than simply bringing rights home, which was the Act’s explicit contention.

The second concern I will raise about the HRA is its effect on the rule of law, and in particular the effect that some of the haphazard case law has had on legal certainty. I refer hon. Members to the tragic case of Naomi Bryant, and the review by HM Inspectorate of Probation of the case, which found that the licence conditions placed on Anthony Rice on his release were too lax and noted that lawyers had whittled away the conditions by deploying arguments to do with the Human Rights Act. I will not go into that further—I have the quotes with me but will not read them out—but if anyone wants to look into that case further, they should look at that report.

The third issue I will raise is the way that the Human Rights Act has exposed us unnecessarily to too much judicial legislation from Strasbourg—for example, in the case of prisoner voting. In truth, as we should not make this into some strictly European bogey, there have been examples of domestic judicial legislation as well, about article 8 in particular—we should deal with our home-grown problems, too. That is easy to do without bringing into question our membership of the European convention.

Finally, I hope the right hon. Member for Orkney and Shetland has had the opportunity to read the excellent article by Baroness Faulkner, Liberal Democrat spokesperson on foreign affairs, in May’s edition of Prospect. In case he has not, and for the benefit of this wider audience, I will quote a few choice words:

“Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken... A British Bill of Rights is a good idea.”

I do not agree with the whole article but it is well worth a read.

I congratulate the right hon. Gentleman on securing this debate and welcome his contribution. I hope he will not mind if I encourage him to circulate that article among the other members of his party.

Question put and agreed to.

Resolved,

That this House has considered the future of the Human Rights Act 1998.