Safety in Custody and Violence in Prisons

Alistair Carmichael Excerpts

Monday 9th May 2016 Commons Chamber

[Andrew Selous]

These issues are not easy. Our prisons are not like the Eden Project: they do not have a dome over the top of them. Unfortunately, it is all too easy to get things over a prison wall, as I saw when I went around HMP Rochester last Thursday morning. My hon. Friend raises an important issue. All of us, particularly as Members of Parliament, have a role in getting the message out in our communities that new psychoactive substances are lethal. They do terrible harm to the loved ones of families who inadvertently bring them into prisons. We need local communities to work with us and the police to try to stop the terrible flow of evil drugs over prison walls.

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

The Minister is absolutely right: prison officers do an exceptionally difficult job. They need and deserve our fullest possible support. That has to be more than a platitude. For that to be the case, staffing levels have to be addressed. The other issue that has to be addressed is prison overcrowding. The prison population is now in excess of 90,000 inmates. In the past 15 years, the length of sentences has gone up by 33%. Can the Minister assure me that, as he tackles this issue, he will look at it in the round; that he will look not just at prisons in isolation but at how they interact with police, prosecution and court authorities?

[Andrew Selous]

I thank the right hon. Gentleman for his praise for the work of our outstanding prison officers. We are consulting on sentencing issues, which have a bearing on overcrowding. We are also determined to bring down reoffending. Our success in reducing reoffending will help to reduce overcrowding.

Oral Answers to Questions

Alistair Carmichael Excerpts

Tuesday 26th April 2016 Commons Chamber

[Mr Vara]

All decisions on whether or not legal aid is paid are made independently of Ministers. They are made by the Legal Aid Agency, on the basis of individual cases and individual facts. As the hon. Gentleman will appreciate, I cannot comment in the House on a specific case.

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

13. When he plans to publish a consultation on a British Bill of Rights.

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

We look forward to presenting proposals for a Bill of Rights in due course, and we will consult on them fully.

[Mr Carmichael]

The Minister will recall saying to me, on 30 June,

“the United Kingdom has a strong tradition of respect for human rights that long predates the Human Rights Act 1998. The Government are proud of that tradition and will be true to it in delivering our reforms. As I explained…our plans do not involve us leaving the convention. That is not our objective.”—[Official Report, 30 June 2015; Vol. 597, c. 429WH.]

Is that still Government policy?

[Mr Raab]

The right hon. Gentleman was absolutely right when he said last month that the Human Rights Act was not the last word on human rights. I look forward to debating the proposals with him.

The Government’s position on the European convention on human rights remains clear. We cannot rule out withdrawal forever, but our forthcoming proposals do not include it, not least because we have been clearly advised that if we withdrew from the convention while remaining a member of the European Union, that would be an open invitation to the Luxembourg Court to fill the gap, which could have far worse consequences, and also because the convention is written into the Good Friday agreement.

We are confident that we can replace the Human Rights Act with a Bill of Rights and reform our relationship with the Strasbourg Court, and that is precisely what we intend to deliver.

Human Rights Framework: Scotland

Alistair Carmichael Excerpts

Wednesday 2nd March 2016 Westminster Hall

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

I congratulate the hon. Member for Dumfries and Galloway (Richard Arkless) on obtaining this debate. I apologise for being a little late, but I caught up during the latter stages of his contribution. I was interested to hear the speech by the hon. Member for Rutherglen and Hamilton West (Margaret Ferrier), who dealt with the threat posed by the discussion that is clearly going on within Government on the future of the Human Rights Act 1998. Without disagreeing with what she said, this is a moment where we might stop and take stock. If the Government are conducting a good-faith exercise, it need not be a threat, and it could be an opportunity.

Let us not forget that the implementation of the Human Rights Act brought a greater and more immediate degree of access to convention rights. The convention was written in the 1950s and the framework of human rights and wider jurisprudence was very different from the one we have today. Nowadays, there is a whole range of different rights, including employment rights and social and economic rights, that are worthy of protection and of being given the same status as the right to a family life, for example, which is an important part of the ECHR. Those are the sorts of rights that I would like to see brought in. If this is a good-faith exercise on the part of the Government—that remains to be seen, and I am prepared to give them the benefit of the doubt for the moment, because we have never heard much by way of progress, although perhaps the Minister will have something to tell us today—I am happy to engage with them on the basis of broadening and strengthening the human rights covered by the Human Rights Act.

At this stage, it is useful to remember the history of the debate that brought us to where we are today. Essentially, the creation of the Human Rights Act and the terms in which it was introduced were something of a fudge. Throughout the 1990s and back into the 1980s—and possibly before that, for all I know—there was ongoing and substantial debate about the creation of a British Bill of Rights. I say that it was a fudge because the creation of a Bill in the terms that were discussed would have brought with it a fairly substantial challenge to the conventional Diceyan view of parliamentary sovereignty and the sovereignty of this place.

The justiciability of decisions taken by Government and Parliament was something that Tony Blair just did not have the stomach for taking on, even in the early years of the 1997 Government. For that reason, he came forward with a fudge, albeit an elegant one. It compelled courts to bring consideration of convention rights in an immediate way that meant that citizens did not have to go through the whole rigmarole of taking things to the European Court of Human Rights. Indeed, it has worked well ever since. In the time since the Human Rights Act was introduced, we have seen a substantial revision of the Diceyan view of parliamentary sovereignty. If we were to start with a Bill of Rights today, it would not scare the horses in the way that it clearly scared Tony Blair back in the late 1990s.

[Joanna Cherry]

Like me, the right hon. Gentleman is a Scots lawyer. Does he agree that the Diceyan view of the sovereignty of Parliament is very much a doctrine of English constitutional law? In Scottish constitutional law, there is a very strong foundation, recently reiterated by Lord Hope in the Supreme Court, in Jackson v. Attorney General, that the doctrine of parliamentary sovereignty is an English doctrine and that in Scotland the people are sovereign.

[Mr Carmichael]

That was a debate that we enjoyed in the 1990s—I say “enjoyed”, but I use the word in the loosest possible sense—in the days of the constitutional convention. It was the underpinning of the claim of right that led to the Scottish Parliament being founded. There is a fairly long pedigree of jurisprudence in Scots law. Dredging my memory of the days of constitutional law, I go back to the case of MacCormick v. Lord Advocate, where that view was well-founded, albeit in obiter dictum.

The opportunity is there for something more to be done with human rights and a new Bill of Rights that would build on the Act that we currently enjoy. I hope the Minister would be open to that. More important and more fundamental to me than the Human Rights Act is that this country should remain a party to the European convention on human rights. If the worst predictions of the hon. Member for Rutherglen and Hamilton West were to come true and the Human Rights Act were repealed, that would not deprive us of the convention rights; it would just make them that much more inaccessible. It would take us back to the situation we had before the 1998 Act, when citizens could access their convention rights, but it ultimately required going all the way to the European Court of Human Rights. That would be a genuine retrograde step.

To pick up the point made by the hon. Member for Dumfries and Galloway, that would also put us in rather poor company. In fact, leaving the convention on human rights would leave the United Kingdom sitting—I hope rather uncomfortably—with Belarus.

[Richard Arkless]

The right hon. Gentleman is putting a typically articulate view. What is his view on the potential legalities and problems that the UK Government might have in either an imposition of the British Bill of Rights, repeal of the Human Rights Act, or withdrawal from the ECHR? That is what I would like the debate to focus on.

[Mr Carmichael]

To take each point in turn, the imposition of a British Bill of Rights would require an Act of Parliament. If that were to extend and build on convention rights, and if it were not in contravention or conflict with convention rights, I would see no difficulty with that. If we were to seek to withdraw from the convention, that would bring with it enormous problems. It would bring the political problems that I have already touched on and would put us in the company of nations that, frankly, I do not want to find myself with. Beyond that, it would put us in breach of treaty obligations, because the convention rights are built into the Good Friday agreement, which, above all else, is a treaty between ourselves and Ireland. It would also throw our own constitutional structure into disarray, because the Human Rights Act is hardwired into the devolution settlement in Scotland, Wales and Northern Ireland. Again, this is one of those things that was probably not given consideration when the Conservatives set up their commission 10 years ago. That probably explains the fact that this seems to have landed in a pile of things in the Ministry labelled “a bit too difficult to deal with; we’ll maybe look at it next month”.

[Richard Arkless]

I thank the right hon. Gentleman for his answer. He makes the position clear from a UK point of view, but I am interested in his view on whether a potential imposition of a British Bill of Rights would require a legislative consent motion from the Scottish Parliament and whether, in his view, that consent is likely to be given by any party of any colour or any Government in Scotland?

[Mr Carmichael]

We would have to see what the terms of the Bill were before deciding whether it required legislative consent. There are a lot of social and economic rights where the Bill would of course cut across devolved areas and would need a legislative consent motion. Employment rights, for example, are clearly reserved. We would need to see what the terms were. Like all such changes—if I can expand the thought for a second—these things are based on building consensus before introducing a Bill, so that everybody knows exactly what it will cover. I am talking about my fantasy Bill of Rights and the things I would like to have in it, which are not reflected much in a great deal of what we have heard from the thinking of the Government. However, I am ever the optimist, so we do not know what we might we get from them.

If we were to get a Bill of Rights that built on the convention rights, did not interfere with them and left us still a party to the European convention, I think that would be well received in Scotland. I would be disappointed to think that, just because such a Bill had been initiated here in Westminster, it would not be accepted by people in Scotland. The protection of human rights has been reserved broadly since the days of devolution, and people in Scotland would still respect that, having voted to remain part of the United Kingdom.

I shall be interested to hear what the Minister has to say. The last time we went round this course in Westminster Hall, he assured us that we would be hearing more. We have not heard quite as much as I had hoped we would; we have heard just as much as I thought we might. We shall wait to hear what he has to say. I hope that at some point we will get the answers to how the Government are going to get out of the hole they have been digging for themselves, in terms of the constitutional difficulties that any repeal of the Human Rights Act would bring.

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairpersonship, Mrs Main.

My hon. Friend the Member for Dumfries and Galloway (Richard Arkless), who secured this debate, made it clear that he specifically wanted to talk about legalities. He has argued that human rights are integral to the devolution settlement, and he referred to the fact that the European convention on human rights is written into the Scotland Act 1998 in sections 29 and 57, which provide that the Scottish Parliament cannot pass any legislation that is contrary to any of the convention rights, and a Scottish Minister or a Member of the Scottish Government cannot pass legislation or carry out any act that is contrary to convention rights. Neither of those sections would be changed by a simple repeal of the Human Rights Act, because they are part of the Scotland Act.

My hon. Friend also made the point that if we look at the scheme of devolution that was devised by the late Donald Dewar, who was the first ever First Minister of Scotland, his plan was simple and, in my view, to be lauded: everything would be devolved unless it was specifically reserved. We find in schedule 5 of the Scotland Act a list of the matters that are specifically reserved to the United Kingdom Parliament, but one will search in vain for any mention of human rights in schedule 5, so in my respectful submission it is not correct to say that human rights are a reserved matter. They are a devolved matter. My hon. Friend asked the Minister to confirm whether he agrees that, as a matter of statutory interpretation, human rights are not reserved to the United Kingdom Parliament.

It must be recognised squarely that in terms of schedule 4, the Human Rights Act cannot be modified or repealed by the Scottish Parliament. The Scottish National party and the Scottish Government accept that. However, we argue, as my hon. Friend did, that because human rights are not reserved in terms of the Scotland Act, if the British Parliament wants to repeal the Human Rights Act and replace it with a British Bill of Rights, it will be legislating in the field of human rights, and under the Sewel convention it must seek the legislative consent of the Scottish Parliament. Hopefully, by the time we get to that stage, the Sewel convention will be on a statutory footing as proposed in clause 2 of the Scotland Bill.

I reiterate my hon. Friend’s question to the Minister: does he accept that for repeal of the Human Rights Act, and for repeal of anything in the Scotland Act, a legislative consent motion would be required from the Scottish Parliament? Also, does he appreciate that as recently as the end of 2014, more than 100 Members of the Scottish Parliament indicated that they supported the Human Rights Act? A cross-party majority was in support. Is he also aware that the First Minister of Scotland, Nicola Sturgeon, has made it very clear that her Government, which has a majority in the Scottish Parliament, would never support repeal? So does he accept that, with regard to the future framework for human rights not only in Scotland but across the UK, the British Government could not repeal the Human Rights Act and replace it with a British Bill of Rights without the consent of the Scottish Parliament and that that is extremely likely to be withheld? The third question that my hon. Friend posed was the question of whether the British Bill of Rights will apply to Scotland. If it is going to apply to Scotland, does the Minister accept that there would have to be a legislative consent motion?

The First Minister of Scotland has been keen to emphasise on several occasions that she wants to preserve the Human Rights Act for the whole of the United Kingdom, not just for Scotland. There is no question of the Scottish Government doing a deal whereby Scotland would get out of the repeal of the Human Rights Act and leave the rest of our partner nations in the United Kingdom swinging in the wind. My hon. Friend the Member for Rutherglen and Hamilton West (Margaret Ferrier) stressed the universality of human rights, and the First Minister of Scotland has argued that it is important they are kept for the whole of the United Kingdom, so it is not the intention of the Scottish National party or the Scottish Government to do any deal. We would like to be involved in the cross-party movement to keep human rights for the whole of the United Kingdom.

That feeds into another point made by both my hon. Friends. The repeal of the Human Rights Act would send out completely the wrong message to the world about the United Kingdom’s direction of travel on human rights. It is striking to look at the testimony of Hossam Bahgat, the director of the Egyptian Initiative for Personal Rights. He was involved in the Tahrir square uprising five years ago and said:

“The most important thing that the British can do to support human, rights in Egypt is to support human rights in the United Kingdom...It is significantly more difficult for us to fight for universal human rights in our country, if your country publicly walks away from the same universal rights.”

To his great credit, the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve), made a similar point when he recently highlighted the fact that Russia is already using the UK’s position on human rights to delay implementing European Court judgments and that the UK is being cited by countries such as Venezuela as justification for ignoring obligations under the American convention on human rights.

When the right hon. and learned Gentleman spoke in Edinburgh last September, he described the ECHR as

“arguably the single most important legal and political instrument for promoting human rights on our planet.”

He has previously stated that if the UK is

“instrumental in damaging its effectiveness it will sit very strangely with our settled policy of promoting human rights globally.”

That is a voice from the Minister’s party supporting the notion that it would be unfortunate if Britain sent out the wrong message about our support for human rights.

[Mr Alistair Carmichael]

I very much agree with the hon. and learned Lady on the question of universality. When I went to Cameroon a few years ago to work on a Voluntary Service Overseas-funded project that provided legal aid to people who could not afford it, I was struck by the fact that when I went into lawyers’ offices and courts, there was the universal declaration of human rights. We always think of it as being quite high-flown and possibly even overblown, but they rely on it in courts of first instance. Does the hon. and learned Lady agree that the Human Rights Act need not be the last word in human rights? Legislation could be introduced in several areas to give protection that is more contemporarily relevant than that envisaged in the 1950s.

[Joanna Cherry]

I absolutely agree with the right hon. Gentleman. As my hon. Friend the Member for Dumfries and Galloway indicated, the Scottish Government are already attempting to hard-wire human rights into all their social policy—not only the human rights enshrined in the ECHR, but social and economic rights. For example, the Scottish Government have made it clear that when they have the additional powers they hope to get to develop a social security system for Scotland, respect for the dignity of the individual will be at the heart of the system. We are keen to move the human rights debate on in Scotland, which is why the Scottish Government brought in Scotland’s national action plan for human rights. When the Council of Europe’s Commissioner for Human Rights visited Scotland in January, he singled out the national action plan for support.

I totally agree with the right hon. Gentleman that socioeconomic rights are important. Many other countries in the world recognise that and have such rights in their written constitutions. The constitution of the new Republic of South Africa, which was drafted, at least in part, by one of the finest lawyers on the planet still living, Albie Sachs, recognises the importance of socioeconomic rights, which are embedded in it. Some of the Nordic states’ constitutions also embed socioeconomic rights. As my hon. Friend the Member for Dumfries and Galloway said, it is our hope that when we become independent we will have a constitutional convention to write a constitution for an independent Scotland. We will look at the models and examples of other forward-looking democracies—not only in the west, but including examples such as South Africa—and seek to write socioeconomic rights into our constitution.

There is universal recognition among all those who have spoken so far of the importance and universality of human rights. We are of one voice, across the SNP-Lib Dem divide, in saying that socioeconomic rights are important and that the rights in the ECHR are only a floor for human rights, not a ceiling. The right hon. Member for Orkney and Shetland (Mr Carmichael) expressed the hope that the currently proposed consultation might be brought forward and might look at socioeconomic rights. I am far less of an optimist than he is. All the noises I have heard coming from the Government Benches have suggested that it will be an exercise in reducing rather than bolstering human rights protections. Regardless of the purpose of the exercise, do the Government accept that human rights are devolved, not reserved, and that the legislative consent of the Scottish Parliament must be sought before there is any interference in the human rights regime that effects Scotland?

[Andy Slaughter (Hammersmith) (Lab)]

It is a pleasure to serve under your chairmanship, Mrs Main. I, too, commend the hon. Member for Dumfries and Galloway (Richard Arkless) for securing this important debate. For him and for you, Mrs Main, these are obviously fresh and interesting developments, but for the rest of us there is an element of groundhog day. The Minister, the hon. and learned Member for Edinburgh South West (Joanna Cherry) and I were present on 30 June last year for what I think was the previous human rights debate in Westminster Hall, which was secured by the right hon. Member for Orkney and Shetland (Mr Carmichael). One would have thought that in eight months we might have moved on somewhat, but we have not moved far at all.

First, I shall explain what we now know that we did not know then, and then I shall outline what we still do not know. The hon. and learned Lady made essentially the same point as she made in the previous debate:

“Ministers…suggest that they believe that the UK Government could repeal the Human Rights Act without reference to the Scottish Parliament. They argue that the Sewel convention would not be engaged because human rights are a reserved matter. That is wrong and legally illiterate. Human rights are not a reserved matter and are not listed as such in schedule 5 to the Scotland Act 1998.”—[Official Report, 30 June 2015; Vol. 597, c. 424WH.]

I do not have the benefit of the expert legal advice that the Government have to enable me to comment on that—I am not sure whether Minister himself does these days, as he and the Lord Chancellor are in that interesting lacuna in which the outers currently find themselves—but I can at least say that this is a hotly debated matter. This is one of the most intractable issues in which the Government have engaged in since beginning this rather sorry and unwise attempt to unravel the Human Rights Act, which was introduced by the last Labour Government.

If nothing else, the Lord Chancellor is candid and answers questions as honestly as he can. When called upon to give answers about this matter, he struggled and said that it was still under review. That is probably right. Given the proximity of the Scottish Parliament elections, there is an additional problem: we will shortly be entering a period of purdah. The former leader of the Labour party, now Chair of the Joint Committee on Human Rights, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), wrote to the Lord Chancellor asking him to confirm that

“no part of the consultation period will overlap with the period where purdah applies or the Scottish Parliament will be dissolved”.

The response simply said that the Lord Chancellor will

“adhere to any Cabinet Office guidance”.

Can the Minister shed some more light on those matters? It might not be important now as it does not look like there will be any movement before the Scottish Parliament elections or, indeed, the EU referendum. Nevertheless, I would appreciate some clarity. If the positions of the devolved authorities—not only the Scottish Parliament but the Northern Ireland Assembly—are going to be significant in any legislation that is drafted, there will need to be a full consultation, which cannot be done properly during a period of purdah.

Let me throw one other thing into the mix. The Scottish Conservative general election manifesto—a rather recherché document that I am not sure we are all terribly familiar with—said:

“The Scottish Parliament will retain the final say on the role of the European Court of Human Rights in relation to the Scotland Act 1998.”

The Minister may wish to clarify the Government’s attitude to the European convention on human rights. From what both he and the Lord Chancellor have said recently, it is pretty clear that they now do not envisage our withdrawing from the convention, but that is always hedged with the phrase, “Nothing is ruled in and nothing is ruled out.” It would be helpful if the Minister ruled that out, because that would remove one of the major problems that we face.

That is the territory we are in and those are the questions that we can glean answers to. Although it is always valuable to run these issues around the Chamber again, until the Government actually bring something forward, we are all stumbling around in the dark.

[Mr Carmichael]

I agree with what the hon. Gentleman said about the timetabling. It is unlikely that we will see anything this side of the purdah period for the Scottish, Welsh and Northern Irish elections. It is impossible at this stage to consult with the Administrations in any of the devolved regions before the elections. However, it would be exceptionally unwise thereafter to start a consultation in the middle of the referendum campaign. This discussion is best conducted in a period of relative calm and stability. I fear that the period between 6 May and 23 June is not going to be—

[Mrs Anne Main (in the Chair)]

Order. Interventions are getting rather long and are not in the form of questions.

Prisons and Secure Training Centres: Safety

Alistair Carmichael Excerpts

Monday 11th January 2016 Commons Chamber

[Michael Gove]

I am grateful to my hon. Friend for stressing the range of services that exist to help ensure that young people are kept safe. When an allegation or a series of allegations such as those in the “Panorama” report are made we must of course take them seriously. It is also important to stress that the Youth Justice Board, the Ministry of Justice and others have continually striven over the years to try to ensure that young people are kept safe in custody. Of course we can never do enough, but he is quite right that there have already been interventions that have been designed to ensure that young people are safe.

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

I am sure that we will all watch “Panorama” with great interest, but, whatever we see, we have all known for years that there were problems with these institutions. That is why we have the recidivism rates to which the Justice Secretary referred. We must not be allowed to scapegoat the staff. They do an exceptionally difficult job, very often picking up the failures of other parts of the public services—the education system, the care system and the social work system. When he comes to give the remit to the inquiry that he has announced today, will he make sure that the work of all those different parts of the public services and others interacts with these young people before they end up in detention and is given proper scrutiny as well?

[Michael Gove]

That was a typically thoughtful intervention from the right hon. Gentleman. He is absolutely right. Ideally, we should prevent young people from getting into custody in the first place. Obviously, there are some people for whom custody is an appropriate response, but we should seek to intervene much earlier in the lives of these young people—whether that is through ensuring that they have appropriate education, that there is intervention from social workers in their family circumstances or that the criminal justice system is much more thoughtful in the way in which it treats them.

Women and the Economy

Alistair Carmichael Excerpts

Wednesday 9th December 2015 Commons Chamber

[Caroline Dinenage]

I like to champion everyone who goes out there and starts her own business, pursues her passion and creates employment. There are many obstacles that prevent women from starting and growing their own businesses, and as a Government we are seeking to overcome those obstacles. I shall come to that later in my comments. [Interruption.] We do have a long way to go. We are by no means complacent. There is so much more we can do to make sure women can play their full part in this economy, and the Government want to make sure that all women can fulfil their potential.

Over 1.5 million women already in work say that they would like to do more hours if they could. If they each worked just one extra hour each week, that would contribute 80 million more hours a year in productivity. As a country, we cannot afford to waste the talents of a single person, let alone those of half of our population. Although such economic arguments are of course very important and very powerful, frankly, gender equality is also just the right thing to do.

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

In the previous Government, I—along with the Minister’s predecessor as Under-Secretary of State for Women and Equalities, Jo Swinson—commissioned a report on womenomics, which was produced by Professor Lesley Sawers of Glasgow Caledonian University. What are the Government doing about that report?

[Caroline Dinenage]

I will come on to that a little later in my speech, but I join the right hon. Gentleman in paying tribute to Jo Swinson, my predecessor in this role, who did an excellent job.

This commitment to gender equality informs the difficult decisions that we have had to make to return the country to surplus and ensure that we no longer depend on debt. We must not forget, despite the mass amnesia that seems to have broken out on the Opposition side of the House, that we are in this position because of Labour’s financial mismanagement, which meant that we have had to take very difficult and unpleasant decisions to balance the books and live within our means. We know that women still earn less, own less and retire with less than their male counterparts.

Arrests of Chinese Protesters

Alistair Carmichael Excerpts

Monday 26th October 2015 Commons Chamber

[Mike Penning]

I think my hon. Friend is trying to drag me into a discussion on whether the arrests were lawful or unlawful. I am not willing to get into that discussion while there is an ongoing police investigation.

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

The Minister is absolutely right: operational matters are and must be for the police, but when the execution of these operational matters is done in such a way as to risk a chilling effect on freedom of speech, that becomes a matter for this House. I do not see how it would prejudice any future prosecution for the Minister to interrogate those responsible for the policy behind these actions now. Indeed, I suggest to him that he has a duty to do so. Will he do that?

[Mike Penning]

As I said in my opening remarks, before the state visit the Home Secretary was briefed by the Metropolitan Police Commissioner on how legitimate protests would be policed, and on the possibility of protests that were not legitimate or legal. Ultimately, what took place was still the result of operational decisions taken on the day, and of course those decisions will be reviewed. Today’s urgent question was about three people being arrested, and I cannot comment on that because doing so could jeopardise ongoing investigations. Of course, we must always learn from how policing is done, and I am sure that is exactly what we will do.

Saudi Penal System

Alistair Carmichael Excerpts

Tuesday 13th October 2015 Commons Chamber

[Michael Gove]

My right hon. Friend has made a characteristically wise point, and I absolutely agree with him. It is important that we put the interests of advancing human rights at the heart of everything that the Government do, and that is one of the reasons why I am pleased that my hon. Friend the Member for Esher and Walton (Mr Raab), is the Minister responsible for civil liberties, has revised the way in which the Ministry of Justice engages internationally in order to ensure that human rights enjoy greater prominence.

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

The Secretary of State has made exactly the right decision today. He has done the right thing, and I think it important for him, in particular, to be given credit for having done it. In order better to inform the debate about the very difficult balancing act that he has had to perform—along with his ministerial colleagues—will he now consider publishing the documents behind this deal? In particular, will he publish the memorandum of understanding that was signed by his Ministry and the Home Office with Saudi authorities in March this year?

[Michael Gove]

I am grateful to the right hon. Gentleman for his generous words, but I must stress that this is a cross-Government decision. It was reached after discussion across Government, and it is a shared, collective decision of the whole Government. It is, of course, in that spirit that I entirely understand why the right hon. Gentleman would like further and better particulars. However, I must also respect the nature of diplomatic engagement. It is necessarily the case, and understandable, that when we are seeking to influence countries to act in a way which we believe to be in their interests but which may ultimately involve a change of policy at any given point, we wish to maintain confidence in the nature of that relationship, and that means that such conversations must sometimes remain confidential.

Assisted Dying (No. 2) Bill

Alistair Carmichael Excerpts

Friday 11th September 2015 Commons Chamber

[Lyn Brown (West Ham) (Lab)]

I am afraid that I cannot support this Bill. My concern is that we will fundamentally change the way that our society thinks about and deals with the terminally ill, severely disabled people and the vulnerable, troubled and elderly.

My mum died suddenly and unexpectedly, riddled by cancer, but I know that my mum, faced with a terminal prognosis in a world where there was the possibility of state-assisted suicide, acceptable and accepted by society, would have tormented herself during her last months with the question of when she should ask for that button to be pressed. She would have worried about the stresses that my sister and I would have endured, she would have worried about the weight of her care being shouldered by the nurses and the doctors, and she would have been anxious that folk would think that she was consuming too many resources, selfishly staying alive, costing money, when she could and should just die.

My mum was not vulnerable. She was not alone or a depressive. She was dearly loved; and yet I know that the mere existence of legal and assisted suicide would have placed an enormous burden on her. But what of those without a loving family? What of those elderly people—let us face it, they do exist—with families more interested in the cost of care, and its impact on their dwindling inheritance, than the priceless gift of life? Would not some of my more vulnerable constituents think that they ought to take a course of action because it is available and despite the safeguards in the Bill, which I acknowledge have been carefully crafted? Can we be absolutely sure that they would not be pressured into it?

It is naive to believe that we can prevent an elderly, expensive or asset-rich relative being encouraged, coerced or emotionally blackmailed into taking their own life. And if just one person makes that decision to end their life as a result of such pressure, that would be a tragedy.

The Bill seeks to provide the right to assistance in dying only to those who are terminally ill. I believe supporters of the Bill have real integrity and do not intend its scope to be extended further. But if the Bill is passed, I believe that its scope will be extended, partly by case law, to apply to more people. Holland introduced assisted dying for the terminally ill in 2002. Initially, hardly any patients with psychiatric illnesses or dementia sought suicide. Now, just 13 years later, assisted suicide is sought and granted to elderly, lonely or bereaved people. Pressure for doctors to accede to requests comes from patients and relatives, as I believe it will here.

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

The hon. Lady is talking about the consequences of giving the Bill a Second Reading. Will she address for a second, though, the consequences of not giving the Bill a Second Reading? Assisted suicide will be available; it will simply be available to those who have the means and the determination to go elsewhere. What does she think should happen for these people, and for those who are currently protected from prosecution by the DPP’s guidelines?

[Lyn Brown]

I am against this Bill because I worry that the mere existence of the process of assisted dying will make the vulnerable more vulnerable. It will change fundamentally the relationship between a patient and a doctor, and I oppose it most strenuously, because I think it will fundamentally, slowly but inexorably, change our society’s attitude to death and the dying, with a creeping invidious expectation that our elderly, infirm or disabled should take themselves out of the igloo of old, and die a dignified death, leaving the young, fit and able unencumbered by their burdensome, difficult, messy, expensive, pain-filled and challenging lives.

Life is precious. But the virtues in a society that set it apart as wholesome, decent and ethical are those which nurture and value that life. They are the qualities of tolerance, understanding, forbearance and, dare I say it, love, which are such precious commodities. They engender and sustain compassion and ensure a growing humanity, a more civilised society for the living, that shields and truly values life.

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.