British Bill of Rights

Baroness Kennedy of Shaws Excerpts

Thursday 20th June 2013 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I, too, thank the noble Lord, Lord Lester, for securing this debate, and I join with others in paying tribute to him for his life’s work in supporting human rights here and around the world.

The public would be right to ask the question, “Whatever happened to that commission?”, because, of course, the commission’s report was published six months ago and we have not heard very much about it since. This is perhaps best answered by the fact that the commission was really set up to answer a political problem. Here was an issue on which the parties to the coalition were deeply divided. Some Conservatives hold strongly that the European Court of Human Rights and the European Convention on Human Rights are an abomination and that we should be putting an end to them as soon as possible. Other Conservatives may take a more sensible view. The Liberal Democrats are deeply committed to human rights and to the whole framework for securing respect for human rights throughout Europe and the world. So there was this division, this problem of hostility to the Human Rights Act and commitment to abolishing it within the Conservative Party, and, on the other hand, the commitment of the Liberal Democrats to the very opposite. That is why the commission was set up.

I pay tribute to the fact that the Liberal Democrat end of the appointment process decided to make a broad church and invited in a judge from the European Court of Justice, who is not politically aligned, myself—a member of the Labour Party who sits on these Benches—and the noble Lord, Lord Lester, an academic and practitioner. There was a broader church on the Liberal Democrat end than I think there was on the Conservative end. We gave consideration to these issues over some 18 months.

Sensible Conservatives know that the European Convention on Human Rights has nothing to do with the European Union. However, I am afraid that there is a large number of the membership of the Conservative Party who do not seem to know that. Perhaps when we talk about doing some public education, we should start there.

Secondly, many sensible Conservatives know that it was, of course, Conservatives who drafted the European Convention on Human Rights. They should feel proud of that. I listened to the noble Lord, Lord Faulks, saying that those who drafted it would be concerned about the rather activist way in which law has developed. However, I would say to him that that is the nature of law. Society changes and develops, and so it is right that courts should take account of the way in which our societies evolve. Sensible Conservatives know that it is to Britain’s global credit that we are one of the leading nations promoting human rights. To in any way sacrifice that would be folly.

It has already been referred to that Philippe Sands and I were part of a minority who did not go with the general view of the commission that there should be a commitment to a British Bill of Rights. In fact, the word British, which was used when the commission started, was abandoned when it was pointed out to those who thought this up that a British Bill of Rights would send rather unsatisfactory messages to certain parts of the United Kingdom which prefer to be referred to under the rubric, United Kingdom. We changed the title of the commission to one looking at a UK Bill of Rights.

We entered into it, as the noble and learned Lord, Lord Brown, mentioned, on the understanding that there was a baseline, which was to accept and to build upon the European Convention on Human Rights. All I would say to the noble and learned Lord is that if one takes a closer look at the publication that was produced, one will find that reference to that baseline somehow gets lost in the writing up of the report, and that a number of people are not prepared to accept the European convention as a baseline.

Philippe Sands and I have written about this matter in a number of journals, including the London Review of Books. We started out with an open mind as to whether a UK Bill of Rights was needed and whether it was a good thing. We ended up with very strong views as to why we could not sign up to it. The main reason was that the case was not made. The evidence we took showed that, beyond the Daily Mail, the Daily Telegraph and the activist sections of the Conservative Party, up and down the country, particularly in the devolved nations, there was a great deal of support for the European Convention on Human Rights.

We also received a great deal of evidence. In fact, we had consultations on two occasions. After the first, there was the suggestion, “If you don’t like the first consultation’s answers, let’s have another one”. The second consultation reached the same conclusions: namely, that the general public, when invited to express their views, were supportive of the Human Rights Act and of being part of this greater fabric across Europe of protecting human rights.

We also took the view that we could not support this because the timing was absurd. A decision had just been made to have a referendum in Scotland on whether there should be independence for Scotland. To be rocking the boat and talking about, first, a British Bill of Rights, and then a UK Bill of Rights, did not seem an appropriate or sensible thing to be doing at this moment. Indeed, dependent on the outcome of that referendum, it may be that we will embark on a set of constitutional changes that would involve us having to look at all our arrangements. That might be a time when we could look at this again. It certainly is not timely at the moment.

The third matter for us was that there was very little thinking of the long-term implications constitutionally or, indeed, legally—as has been described so powerfully by the noble and learned Lord, Lord Brown—and of what it would mean for judges trying to interpret the law. We also felt very strongly, as the noble Lord, Lord Gold, powerfully explained, about how this would be seen around the world and read internationally.

I emphasise that as the commission continued with its deliberations, we became aware of the real motivations of some of our number: namely, that they feel so strongly about being part of the European system protecting human rights that they want to remove themselves from the European Court of Human Rights and the European convention, and that creating a British or UK Bill of Rights is a Trojan horse in order to have something in place in order to decouple from Europe.

Arguments were made about this being a rebranding exercise and that a new UK-type Bill of Rights would explain to the public better in language that they would know that it was nothing to do with Europe and was all about us. We were not persuaded that that was necessary. One only has to read a wonderful report from the British Academy on this subject to see why this is not an avenue down which we should go.

It was a convenient means to reduce rights, and a way of casting off Europe and returning to some delusional idyll of an earlier age of sovereign authority, unconstrained by obligations set out in international instruments. That was behind some of the motivations. We did not want to be party to that and lend our name to a document that was not going to be declaring its purposes as openly as it should.

The fault lines in the commission were real and deep. They related to the failure to grapple with the content of such a Bill and with what its real purposes were. The underlying desire was to decouple the United Kingdom from the European convention and the jurisprudence of the European Court. We were not prepared to go along with it. We see no benefit in creating a superficial consensus, which was why we made our separate entry in the report. We were also concerned that there was not enough emphasis on the benefits of the European convention. These benefits are important for Europe as a whole and for the United Kingdom. Individuals in 47 states can now take challenges to abuses of public power to an international court in Strasbourg. We should feel proud of being part of that.

At home, the convention has brought great benefits. For example, it has reinforced our commitment to due process in court proceedings. It has advanced children’s rights and the rights of the elderly in care homes. It has advanced freedom of expression and assembly, and protected individuals from unfair extradition. Perhaps most powerfully, it has reinforced the ban on torture and served as a source of international inspiration, which again are things that we should be so proud of.

We should keep in mind the way in which disregard of judgments flies in the face of the rule of law. For our Government to be talking about doing that is shameful. In the business, for example, of prisoners’ voting rights, the margin of appreciation meant that that could have been dealt with easily by providing the right to a postal vote to those on very short sentences. That would have satisfied honour in the European Court, but it is not how it is presented to the public in our tabloid press.

This is about a set of attitudes. At the heart of the differences on the commission were distinct beliefs about the reach and purposes of human rights. We were very separate. It was about the relationship between matters local, national and international. A UK Bill of Rights may seem harmless on the face of it and attractive at first sight, but alarm bells should be ringing for everybody who cares about human rights. For us, human rights are about working not just within our own country but with other countries to improve the human condition, engender respect for all individuals, protect those who are vulnerable and create the conditions for the delivery of justice and peace internationally.

To remove the glue that holds us together with other nations is dangerous. Our criticisms of the European Court should galvanise us to reform it, not cut ourselves off from it. I would say to the Liberal Democrats that the lesson for them is that there are some areas where you cannot do business with the Conservatives without selling your souls. That is what this commission has taught you. The message to you must be: here is the big divide. It should be the message to our nation as a whole. Human rights matter. They matter to all of us. Even to contemplate decoupling from this important way in which we join with Europe and the world in protecting human rights would be folly in the extreme. That was why Philippe Sands and I proudly distinguished ourselves from the rest of the commission. You cannot sign up for this, because it is about diminishing rights for the people who need them most.

--- Later in debate ---

[Lord Judd]

My Lords, as one who was at school with the noble Lord, Lord Lester, I can share with this House the fact that there was absolutely no doubt whatever among his contemporaries as students, or indeed the staff at the time, that he was going to make a powerful contribution to the future of this country. The fact that he has made it in the context of the realm of human rights is something from which a lot of us take a great deal of joy and satisfaction.

I have just indicated and underlined my age. At the age of 13, my father took me with him to an international conference he was organising in Geneva. At that conference, I had the privilege of meeting Eleanor Roosevelt and I had the pleasure of listening to Eleanor Roosevelt. As I listened to this debate and the anxieties that have been expressed, I reflect on the huge gap between life as it is today and life as it was in the immediate aftermath of the Second World War. There was a passionate conviction which gave her her strength and power, together with all those working with her, that human rights were not just a moral option in the way you organised your society. With all the searing experience of the human suffering of the Second World War, human rights were an absolutely essential and indispensable pillar of a stable and secure society. We have somehow lost that underlying basic philosophy and conviction. Discussion is all about the management of human rights, the operation of human rights law and the rest. We cannot repeat that conviction too often.

If I am allowed to draw on personal experience, as someone who has no legal qualifications whatever, but as somebody who has spent most of his life working in the humanitarian sphere outside this House, I can say that pretty well every month of every year in my practical work, I have seen again and again the crucial importance of human rights to the cause of improving the well-being and potential of our fellow human beings across the world.

I declare an interest as a member of the advisory board of the London School of Economics Centre for the Study of Human Rights. I think, and I say this sometimes at meetings of the board, that we have to take seriously the criticism that is sometimes loosely used about the human rights industry. To some people, there is a perception which we have to examine that there is a human rights industry—the chance of academic prowess and postgraduate degrees, a preoccupation with much legal discussion about it all, and the rest. It seems to me that we need to reconnect—that has come across in this debate very well—the whole cause and indispensability of human rights to real experiences and the real lives of people. That is an argument for a Bill of Rights which cannot just be dismissed. As I understand it as a layman, the strength of law at its best is when it underpins an ethic which is broadly there in society. It will never bring everybody on board, but an ethic is substantially there among people instinctively that this is the kind of society in which they want to live. This law underpins that reality and helps those who want to distort or abuse it to be dealt with.

It seems to me that a gap has developed here because people do not feel they own human rights law. They see people, as it were, operating downstream in the context of the human rights law that has been created. It is very important to go back to source and reargue the case for human rights and their indispensability. We have to look at that, of course, in the context of our educational system and elsewhere, and look at how seriously we are taking discussion and debate about human rights, and why they are so important, in our educational system. As the noble Lord, Lord Lester, will remember, we were both involved in the Council for Education in World Citizenship in those days. It was a very lively body of sixth-formers across the country with the whole cause of preparing for citizenship. Taking these things seriously was central to our preoccupations. The Christmas holiday lectures were packed. I am talking about the enthusiasm, commitment and integrity of someone such as Eleanor Roosevelt and the passion that she brought to this because of her experience of the war years.

I apologise if I am reminiscing too much, but this is important because these were the formative years. I recall that, slightly precociously, we had a youth parliament in the constituency in which I lived as a youngster. In that youth parliament, by our own choice, we took the Universal Declaration of Human Rights and set about deciding and discussing how we would put it into action in our own society. These things were vivid in the culture at the time. There has been a certain amount of subjective interpretation about history, even in this debate. I can remember that there were Conservatives then who shared this concern and passion every bit as strongly as I did as a member of the Labour League of Youth. As the noble and learned Lord, Lord Woolf, emphasised, there seems to be a real need to regenerate this cause of human rights and to highlight their indispensability for society.

There is another issue. If I have come to one conclusion in the course of my life, it is that the first reality for all of us is that, from the day we are born, we live in a totally interdependent global community. I worry about any action on our part in this country that undermines that understanding and reality. It seems very important, in a realm as crucial as human rights, that we have objectives, aspirations and convictions towards which we try to encourage all our fellow citizens across the world community to strive. If we start a process which begins to suggest that human rights are things that you look at in a national context and put first into your national culture, I wonder how far we are helping the world to face up to this reality of interdependence and making a really constructive and imaginative contribution to the emergence of a better society and better values.

The noble and learned Lord, Lord Woolf, talked about the rule of law and its importance. As a layman, I know that I want to live in a society which observes the rule of law. However, there is a huge debate about what that law should be. It seems to me that what we are all seeking is justice. What matters is how we strengthen the debate about what justice is and how justice should be reflected in the law—it is not just about having a rule of law, it is about ensuring that the rule of law reflects the cause of justice, of which human rights are a part. Sometimes I wonder whether we have to use the term “human rights”—which has become so stereotyped—and to what extent we are really not just talking about justice.

I am afraid that you cannot look at this debate, and the possibilities for change, without examining the context of the dynamic in which it takes place. It would certainly be very naive to try to do that. If I am allowed to make so bold, noble Lords in this debate have been a little cautious about facing up to some of the crude realities here. I wonder whether people in years to come will see it as altogether a coincidence that, at a time when we have the reassertion of rather crude and unpleasant nationalist populism, there is debate about whether we could have a Bill of Rights for Britain.

Are the dynamics surrounding that exercise going to be about justice and the cause of humanity, and how far are they going to be about “Let us run Britain in a British way”—whatever we mean by Britain and a British way—with which everyone is expected to conform but which does not necessarily represent the realities of our society and the creative potential of our society as a multicultural society? This is a huge debate and we should not drift into it inadvertently. Debates like this are absolutely indispensable and I thank the noble Lord for having initiated it.

It has been a privilege for me to listen to so many wise speeches. I am a great friend and ally of my noble friend Lady Kennedy. I hope she will forgive me saying that I was not really very happy with her seeming to imply that there were no Conservatives who care about human rights and the things I have been talking about every bit as much as I do. In the noble Lord, Lord Gold, we have a classic example of a Conservative who not only feels these things but feels them so sincerely and deeply that he can express himself very well in a debate of this kind, in a way that is quite challenging to a lot of other people.

[Baroness Kennedy of The Shaws]

That cannot go unchallenged. I think that my noble and very dear friend Lord Judd, when he sees my remarks in Hansard, will see that I referred all the way through to the sensible Conservatives who recognise the value of human rights and realise that they are different from the European Union. I paid tribute to them all, and indeed paid tribute to the noble Lord, Lord Gold.

[Lord Judd]

My Lords, I am sure that the noble Baroness and I will continue this discussion in many places for long weeks ahead because we are very good friends. I certainly accept her qualification about the words she used. She also suggested rather that it was the Conservative Party with which it was impossible to do business. The society I want to live in by definition is one in which the Conservative Party is as committed to the things I am talking about as anybody else. We should be strengthening the elements within the Conservative Party who share our convictions and speeding the day when we can all speak together. Again, I say we should all be grateful to the noble Lord, Lord Lester.