Human Rights Act 1998 (Repeal and Substitution) Bill

Charlie Elphicke Excerpts

Friday 1st March 2013 Commons Chamber

[Charlie Elphicke (Dover) (Con)]

I beg to move, That the Bill be now read a Second time.

I have brought the Bill to the House today because human rights are important. Human rights matter, but they are in crisis today, with a substantial majority of the British people regarding human rights as a charter for criminals and the undeserving. A new settlement is needed to restore trust and confidence in human rights—a settlement that works for Britain.

Before 1998, the United Kingdom had a home-grown human rights settlement that worked well. It had been built up over centuries, and it was accepted and even respected by the British people. In 1998, the Human Rights Act brought the European convention on human rights directly into British law, along with the European Court of Human Rights’ body of case law. That change has, without doubt, transformed human rights in the UK in ways that are wholeheartedly rejected by the British people.

It is not difficult to see why there is so much public concern. We see many cases reported in our newspapers day after day, week after week, that give us a sense that a great injustice has happened and that the balance is not right. I will give the House some examples. An alleged Rwandan war criminal, suspected of committing crimes in the 1994 Rwandan genocide, could not be deported because he could not get a fair trial in Rwanda to answer for his crimes. Today, he is to be found driving a taxi around Essex. I do not think that that strikes the right balance, and I think that most people would agree with me.

A Honduran man could not be deported to answer charges of murder because of the family life that he had established in the UK since he arrived here after escaping from custody in Honduras. He killed someone, then came here and established a family, and was able to use that family as a shield against facing justice for the crimes that he is alleged to have committed.

A failed asylum seeker could not be removed from the UK even though he had committed a string of criminal offences, including a hit-and-run incident in which he killed 12-year-old Amy Houston, because of the family life that he had established in this country illegally. I am sure that it strikes us all as odd, if not thoroughly wrong, that someone can deny family life to another yet have their own family life protected.

[Dr Thérèse Coffey (Suffolk Coastal) (Con)]

I strongly agree with my hon. Friend. What would he say to people who are very concerned about supposed family life being used as an excuse? If a family is together, does it matter where in the world they live? Perhaps the wife or husband and children should move back to their own country. That view is often put forward; what would my hon. Friend say about that?

[Charlie Elphicke]

That is a fair point. I think we need to look at the individuals asserting a right. They might say “I have established a family; I have a right to family life” and we say, “Yes, family life is important and it does matter”. In view of the fact that someone else’s family life has been taken away, however, how could anyone stand on that right? How can that be right? A key part of my Bill is that anyone who asserts a right cannot just stand on that right and say “That’s my right”. The courts need to look at the wider circumstances of the case, including at the person’s conduct, to establish whether they come to justice, as it were, with clean hands themselves. Their own conduct should be examined and taken into account. We need to assess whether it is in the interests of justice in the round for those people to be able to assert that right.

[Mr Christopher Chope (Christchurch) (Con)]

I wholeheartedly agree with what my hon. Friend has said and I congratulate him on bringing this Bill forward. He refers to the common law principle of equity, which has always been part of the English law. It means that people cannot expect to get a remedy from the courts if they do not come before it with clean hands. Does my hon. Friend believe that that is the essence of what we are talking about—restoring the principles of equity?

[Charlie Elphicke]

I absolutely agree with my hon. Friend who makes a characteristically forceful argument. For too long, human rights have been interpreted under the convention in what lawyers have called an “objective test”. It asks people “Do you have a family?” and “Do you have a right to family life?”—and if the answer is yes, end of story. The British common law way, however, asks people “Do you have a family?” and if the answer is yes, it says it is important to preserve it, but it also asks whether they have acted in such a way according to a subjective test to establish whether that right should be allowed as far as that person is concerned. That is a key point, which goes to the heart of why human rights are in such crisis in Britain today, and it is a key plank of the change I am seeking to make through the Bill.

There are more cases. A Pakistani man was found by the deportation tribunal to be an al-Qaeda operative who posed, and still poses, a serious threat to the national security of the United Kingdom, and another man was found to be willing to participate in the former man’s plans for a mass casualty attack in the UK—in other words, these people were plotting terrorism. The man could not be deported back to Pakistan because of the risk that he would be maltreated by the Pakistani intelligence service.

[Bob Stewart (Beckenham) (Con)]

If someone cannot be tried properly in their own country, the International Criminal Court may well try him or her—and I speak as someone who has given evidence for the prosecution in five ICC trials. I think it is quite a good system. It is one way round the problem we are discussing.

[Charlie Elphicke]

I thank my hon. Friend, who speaks with great experience. He is not only a war hero himself, but has pursued justice and kept the peace in dangerous places throughout the world for so many years, dedicating his life to such causes. I completely agree; there should be such a system. If we have a system in which we have to second-guess the justice of other countries, putting them down by saying they are not good enough and will not come up to the standard, perhaps there should be an international mechanism for people to be tried and made to answer their crimes.

I feel very uncomfortable about the fact that someone can butcher people and commit genocide in Rwanda, yet still be allowed to drive a taxi around Essex today. That is wholly wrong. I worry about the passengers in that taxi, who may not know the driver’s background, previous conduct or behaviour. They may be literally putting their lives at risk by getting into that taxi. My hon. Friend’s idea of having an international court for these cases is one that should be explored.

[Rory Stewart (Penrith and The Border) (Con)]

Will my hon. Friend clarify why the idea of an international court should be considered, given that the problem with the European Court of Human Rights is presumably the entire notion of trying to create a set of universal international rights that can be applied irrespective of the political codes of individual countries? Would not the movement from the European Court to an international court simply exacerbate the problems that my hon. Friend describes?

[Charlie Elphicke]

I thank my hon. Friend for his intervention. I think either option would provide a way forward. The issue I am touching on is justice in Britain and how to ensure that people who are a threat to our national security, who threaten the livelihoods of others or who have committed criminal acts are allowed to escape answering to justice anywhere. We seem to be saying that because the courts of those people’s countries are not safe, they should not face justice at all. That is wrong-headed, and I believe most British people would say that it is wrong-headed and not the right way to go.

Let us take the example of Abu Qatada, a Jordanian who could not be deported to Jordan on national security grounds because of the real risk that evidence obtained by torture might be submitted against him in his own country’s trial for terrorist offences. The answer of the current code is, “Well, let him not face justice at all.” I think that is unwise, and that is what the debate is about. There is no real risk that Qatada himself would be tortured, and the ruling was made despite an earlier finding by the deportation tribunal that the case for his deportation had been well proved on national security grounds as he was seen by many as a terrorist spiritual adviser, whose views legitimised violence.

[Andrea Leadsom (South Northamptonshire) (Con)]

Does my hon. Friend agree that it is extremely difficult for British taxpayers to face the fact that they are going to have to pay huge sums of money for the security of an individual whose outlook on life threatens their style of life and existence? Is it right for British taxpayers to be footing the bill?

[Charlie Elphicke]

I do not think it is, and I noted in an answer given by the Home Office to a question from the Chairman of the Home Affairs Select Committee that the legal aid bill in the case of Abu Qatada has been over £500,000—a substantial investment of taxpayers’ money. Most people in this country would say that that money was not well spent.

[Andrew Bingham (High Peak) (Con)]

I congratulate my hon. Friend on his Bill. The Abu Qatada case got a lot of publicity. Does he agree that the public’s sense of outrage about this case has created disaffection not only with the Human Rights Act, but with democracy generally and even with this place altogether? People have seen how powerless and helpless we appear to be to bring this man to the justice that he should surely meet.

[Charlie Elphicke]

I completely agree with my hon. Friend’s timely and telling intervention. This case has undermined confidence in human rights, but it has also undermined people’s confidence in Parliament and its ability to legislate, to be sovereign and to stand up for Britain.

In another case, an Albanian man returned to the UK illegally after being told to leave. Following his conviction for robbery in this country, he could not be deported— despite being convicted of yet another crime since his return—on the grounds of the family life he had established in the UK. A Sudanese man was convicted of raping a 12-year-old girl in the UK. He could not be deported because of the risk that he would be subjected to maltreatment in the Sudan. Most people would have very little sympathy with a paedophile rapist and would think that this man should not be in the UK. Despite being found by a deportation tribunal to pose a threat to UK national security, an Algerian man could not be deported to Algeria because of the risk that he might commit suicide while in custody there. All those cases have caused widespread public concern, which is why a key plank of the Bill is that the Human Rights Act should be repealed.

Let us look at the opinion polls. A few moments ago, my hon. Friend the Member for High Peak (Andrew Bingham) pointed out the level of public concern. For nearly a decade, opinion polls have consistently shown that the British people reject the UK’s current human rights settlement.

In 2008, a research project was undertaken by the Ministry of Justice—and let us be honest, that Ministry is not exactly sceptical of human rights as an institution and under the previous Government it was not exactly sceptical of European human rights provisions either. Notwithstanding that, having analysed results collected between 2004 and 2006, it found that 57% of respondents agreed that

“too many people take advantage of the Human Rights Act”,

while just 14% disagreed. Forty per cent. believed that the Act

“has caused more problems than it has solved”,

while 24% disagreed with that. Despite the existence of the Act, 56% agreed that

“this country lacks a shared sense of rights and responsibilities”.

So a central plank of my Bill is that we should talk not only about rights, but about responsibilities. Given that that was a Government-sponsored report on the policy of the then Government, it strikes me as a less than ringing endorsement of the human rights settlement that the country has today.

In May 2010, a YouGov opinion poll found that 53% supported the introduction of a British Bill of Rights to replace the Human Rights Act, while 24% wanted to keep the Act. I believe that, in presenting the Bill, I am acting in line with the wishes of the majority of the country.

In February 2011, another YouGov poll found that 63% thought that the British Parliament and the Supreme Court, rather than a foreign court, should have the final say on human rights matters, while 25% thought that it right that we should be subject to the Strasbourg court when it comes to appeals. Fifty-seven per cent. believed that

“Britain’s membership of the ECHR has been abused by lawyers making spurious cases on behalf of criminals and on balance a bad thing”,

while only 19% believed that

“Britain’s membership has been a valuable protection against the government ignoring the human rights of British people and on balance a good thing”.

[Rebecca Harris (Castle Point) (Con)]

My hon. Friend is making a very good point in citing evidence from opinion polls, but do we not all know on an anecdotal basis that the European Court of Human Rights, and human rights in general, have, tragically, become a watchword for abuses of the system? Indeed, they have effectively become a joke, and that is very damaging to the whole concept of human rights.

[Charlie Elphicke]

I could not agree more, and that is precisely why I am presenting the Bill.

The February 2011 YouGov poll also found that 55% thought that Britain should leave the ECHR altogether, and that we should have our own Bill of Rights instead, with the British Supreme Court as the final court of appeal. Just 24% thought that we should remain part of the ECHR.

[Mr David Nuttall (Bury North) (Con)]

Does my hon. Friend agree with that opinion poll finding? If so, why does the Bill not reflect the opinion that we should withdraw from the European convention on human rights?

[Charlie Elphicke]

That is a telling question. I tabled the Bill as a Member of Parliament and a law-maker, in relation to the laws of the land. Whether we remain signatories to the convention is a matter of royal prerogative, and a matter for the Privy Council and the Executive of the day. I drafted the Bill in such a way as to leave it open to the Executive to decide whether they wished to remain party to the convention or to withdraw from it altogether. I have sought to establish the cornerstones and foundation blocks of a uniquely British settlement, and to provide optionality in regard to whether we remain a signatory to the convention. I myself have grave doubts about the convention, but I nevertheless wanted to keep that optionality, just in case the Government of the day were not prepared to go as far as that.

[Philip Davies (Shipley) (Con)]

I wholly agree with everything that my hon. Friend has said so far, but may I take up the point made by my hon. Friend the Member for Bury North (Mr Nuttall)? Surely, even if the Bill were passed, unless we withdrew from the European convention, we would merely be replacing perverse rulings in the United Kingdom courts by even more perverse rulings in the European Court of Human Rights. The Bill might introduce an extra barrier, but it would not stop the perverse rulings that both my hon. Friend and I object to so much.

[Charlie Elphicke]

That is a fair point. The European Court in Strasbourg does make an awful lot of rulings that right-thinking British people would consider entirely perverse. What I have sought to do with the settlement proposed in the Bill is take the European convention out of the UK legal system so that it is not directly effective, and need not be applied by UK judges day in, day out. As my hon. Friend says, if we remain party to the convention, on a case-by-case basis—I think that there are about 10 cases a year—there would potentially be rulings against the UK, and the Executive would then have to consider putting provisions before Parliament to change that, or not. My hon. Friend is right to draw attention to the potential risks, difficulties and challenges.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I want to raise the question not of the perversity but of the legitimacy of the rulings of the European Court of Human Rights. They have no support from the democracy of the United Kingdom. Allowing foreign judges to rule on our laws lacks legitimacy, even if their judgments are sensible.

[Charlie Elphicke]

I have a great deal of sympathy with that view, and, as my hon. Friend will have noted from the polling evidence that I quoted, a large majority of the British people have an enormous amount of sympathy with it, too. I hope that, if the Bill is given a Second Reading and if my hon. Friend becomes a member of the Bill Committee, he will table an amendment to clarify the provision in question, and we can engage in a wider debate on it.

In March 2011, a YouGov poll found that 51% felt that human rights laws were bad for British justice. Significantly, there was strong support for rights being dependent on the conduct of the individual asserting them, and 64% rejected the motion that everyone should be entitled to have their human rights protected even if they had broken the law themselves. That is a key aspect of what I said earlier about the objective versus the subjective test. As my hon. Friend the Member for Christchurch (Mr Chope) pointed out, British people have an instinctive feeling about the issue of coming to court with clean hands. The principles of equity run deep in the psyche of the British people.

Seventy-five per cent. of those polled believed that the Human Rights Act

“is used too widely to create rights it was never intended to protect”.

That too is a key issue, which people often talk about. In February 2012, a YouGov poll found increased concern, with 72% agreeing that

“human rights have become a charter for criminals and the undeserving.”

Just 16% disagreed with that proposition.

The polling evidence highlights the extent to which the British people reject the UK’s current human rights settlement. People clearly and consistently do not feel that the right balance has been struck to restore public trust in our basic rights. The UK’s human rights settlement ought to be revised, and that is why I tabled the Bill.

It is worth reflecting on the UK’s history in relation to human rights. We have a long and proud history of protecting the rights of individuals against the Government. The development of those rights—which we now call “human rights”—stretches back at least 800 years, and includes Magna Carta and the 1689 Bill of Rights. Various settlements and Acts have changed the constitution over a long period. Many people think that we do not have a written constitution, but of course we do: it exists in many different documents.

The magic thing about our constitution is that, because it exists in those various documents and because it was not set in stone 200 years ago like the American constitution, it is easy to change and easy to keep up to date. It is easy for our constitution to bend like a reed when the breath of fresh air of social change sweeps across the country, and I think that it works well.

[Bob Stewart]

So my hon. Friend’s change is a two-phase change. Phase 1 involves making a change here, and phase 2 involves changing the European Court of Human Rights so that it accords with what we want in this country.

[Charlie Elphicke]

My hon. Friend is right. The European convention is a document that was drafted 50 years ago following the tyranny of the totalitarian regimes in the second world war and the blood that they spilt across Europe. We ought to have a document that is living. One of the biggest problems with the convention is that it is not a living document, but a document that was set in stone 50 years ago, and it has not kept up with or changed with our times. Europe has moved on, but the European convention has not moved on with it. One of the key problems with the whole idea of having written constitutions is that they cannot change over time. The Americans spend an inordinate amount of their time arguing about whether they have the right to bear arms, which strikes us as absurd. We in the UK can easily change things.

[Jacob Rees-Mogg]

I thought I should remind my hon. Friend that the right to bear arms is in our own Bill of Rights, where there is the right to bear arms because of the need to maintain a Protestant militia—which fortunately has gone out of fashion in more modern times.

[Charlie Elphicke]

My hon. Friend is absolutely right: when something goes out of fashion in the UK, we change things and move on. We are able to adapt. The Americans copied that provision from our provisions, but are now stuck with having continual arguments about it, whereas for us it is a fragment of our history.

Individuals do not just have basic rights; they also have basic responsibilities that reflect what is required for a civilised society to function. That is at the heart of the social contract that underpins our way of life. It has long been understood that the nature of the social contract will change over time: what is acceptable in one age is not acceptable in another, and vice versa. It is in the nature of the UK’s legal and constitutional structure that changes in the social contract can be accommodated peacefully and effectively. As the UK has no formal codified constitution, laws can be passed by this Parliament, as required, to keep pace with social change. That has worked well for us. We last had a revolution some centuries ago, whereas across Europe and elsewhere revolutions are commonplace. Our constitution can, and does, adapt; it keeps up with the times.

We have drawn on that heritage very helpfully in respect of the European convention on human rights, which we signed in 1950. We played a significant role in drafting it. It developed in the wake of the tyranny and inhumanity that characterised the fascist powers defeated in the second world war, and with an eye on the Stalinist terror behind the iron curtain. The purpose was to hold states to a range of basic human rights, to prevent the repugnant treatment of individuals in some parts of Europe in the 1930s and 1940s from ever happening again, but the UK resisted joining the European Court, the institution that would adjudicate on individual’s claims that the state had violated their convention rights.

The UK was concerned about the potential for unintended consequences and loss of national autonomy. Different nations have different cultures and diverse social norms that are unsuited to a one-size-fits-all approach. That is why so often our discussions about human rights go hand in hand with a wider discussion about Europe and how we can shape our way of life and our own unique British identity within the context of a larger organisation across the channel.

For a long time the binding jurisdiction of the Strasbourg-based Court of Human Rights and the ability of individuals to file claims that their convention rights had been breached was optional for convention states. It was only in 1994 that the UK agreed to the jurisdiction of the Court, including in cases brought by individuals, becoming a compulsory part of the convention. Even then, our agreement was reluctant.

The convention, including the rulings of the European Court of Human Rights, in cases to which the UK is a party is binding on the UK as a matter of international law. As discussed earlier, whether we should remain part of the convention is a wider question, which I have not sought to answer directly through the Bill, although I hope that when my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) serves on the Committee scrutinising it, he may wish to explore the issue further. Under the UK’s dualist approach, however, treaty provisions do not have force in the UK unless Parliament legislates to incorporate them, and it was long felt that the incorporation of the convention into UK law was unnecessary as it already protected the convention rights.

We then had the Human Rights Act 1998. Soon after winning power in 1997, the Labour party introduced the legislation that eventually became the Human Rights Act. Effectively, it copied and pasted into UK law the text of the convention rights that the UK has accepted internationally. Former Prime Minister Tony Blair wrote in the White Paper that this

“will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg. It will enhance the awareness of human rights in our society. And it stands alongside our decision to put the promotion of human rights at the forefront of our foreign policy.”

It will be recalled that putting human rights at the forefront of our foreign policy did not last too long and the whole ethical foreign policy idea was soon ditched, but the Human Rights Act has lived on a little longer.

The main provisions of the Human Rights Act came into force in October 2000. Most of the convention rights are very sensible—the right to life, prohibition of torture, prohibition of slavery, the right to liberty, the right to a fair trial. In fact we would not disagree at all with most of the convention. The issue has always been how these rights are interpreted by the European Court of Human Rights, which is a judicially activist court.

Difficulties have also been caused by section 2 of the Human Rights Act, which inserts the human rights code and the Strasbourg Court’s rulings directly into our legal system, so British judges have to apply those provisions in Britain whether they like it or not. My Bill would revise that section. Section 2 requires British courts, when applying convention rights, to take into account any judgment of the European Court of Human Rights that they believe is relevant. UK courts have taken this to mean they should follow clear and consistent jurisprudence from the Strasbourg Court unless there are exceptional reasons not to do so.

Real mischief—even evil—is done by section 3 of the Human Rights Act, which obliges British courts, along with everyone else, to interpret and apply UK legislation in a way that is compatible with the convention rights in the Human Rights Act, so far as that is possible to do. When introducing the Human Rights Bill, the then Government was clear that section 3 would introduce a radical change. They said:

“The Bill provides for legislation—both Acts of Parliament and secondary legislation—to be interpreted so far as possible so as to be compatible with the Convention. This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so.

This ‘rule of construction’ is to apply to past as well as to future legislation. To the extent that it affects the meaning of a legislative provision, the courts will not be bound by previous interpretations. They will be able to build a new body of case-law, taking into account the Convention rights.”

In other words, the Human Rights Act semi-entrenched the convention into our legal system and our constitution so that both past and future provisions of law have to be read in line with the convention or the rulings of the European Court. More than that, if the legislation is not totally incompatible, violence can be done to the language. That is a real threat to parliamentary sovereignty, as my hon. Friend the Member for High Peak (Andrew Bingham) made very clear.

[Jacob Rees-Mogg]

This is an incredibly important point, because this is a constitutional extension of the most extraordinary kind. It makes the Human Rights Act superior legislation, a concept previously unknown in the British constitution, arguably with the exception of the European Communities Act 1972. Having superior legislation is a direct threat to our constitution and the ability of Parliament to bind its successors.

[Charlie Elphicke]

I entirely agree. In my view, this is the worst part of the Human Rights Act, which is why one of the key provisions in my Bill is to change that.

[Mr Chope]

Does my hon. Friend think that his Bill is compatible with section 3 of the Human Rights Act and with the convention?

[Charlie Elphicke]

I do, because I believe that we need to deal with the margin of appreciation and proportionality. The European Court in Strasbourg has taken a disproportionately narrow view of the idea of the margin of appreciation, and so this is a key change that we should make. We should not be shy in doing this if we are to get the right settlement for the UK.

Since its entry into force, section 3 of the Human Rights Act has had a far-reaching effect on how British judges apply legislation in the UK. Before that provision, the British judiciary’s interpretation of an Act of Parliament centred on the ordinary meaning of the Act’s words when viewed in their context, taken together with the intention of Parliament when enacting the words. However, in his opinion in the leading case on the application of section 3—Ghaidan v. Godin-Mendoza—Lord Nicholls stated that

“the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation.”

That is a crucial point in terms of how Acts of Parliament are interpreted. I think they should be interpreted in line with what Parliament intended, not with what a group of judges from overseas might seek to rule.

Another impact of section 3 is that the courts are empowered to strike down what the HRA classifies as “subordinate legislation”—what we call secondary legislation or statutory instruments—if it is not possible to read this legislation as being compatible with ECHR rights, and the primary legislation under which it is made does not prevent the subordinate legislation’s incompatibility from being removed. Under the HRA, subordinate legislation includes most legislation that is not in itself an Act of Parliament but is made under the authority of an Act, including much legislation approved by resolution of each House of Parliament. That position is a concern and we should change it.

Section 6 of the HRA obliges all public authorities in the UK to act in compliance with European convention rights in the HRA, except where an authority cannot act compatibly because of a provision of primary legislation or where the authority is giving effect to a provision of and made under primary legislation that cannot be interpreted in a way that is compatible with convention rights. In other words, this reaches into not only our legal system, but our public authorities, as an obligation that they need to follow. We can see that the HRA has been incredibly far-reaching.

On that note, I want to deal with the key changes that I am seeking to make in this Bill to address the mischief that I have described. We need to restore balance in this entire area, so the Bill would repeal the HRA and replace it with a new settlement, which would draw on the framework of the HRA but vary it in relation to the key concerns that have arisen. There are 10 pillars to the reform I am proposing. First, the UK Supreme Court should be the final court of law for human rights matters.

[Mr Nuttall]

This follows on from my earlier intervention. Clause 7 specifically states that a “public authority” is defined as including “a court or tribunal”. However, although clause 17, which deals with the application of the convention, includes “any public authority” in its provision, it does not explain that a “public authority” in that clause includes a court. I just wonder whether what my hon. Friend has just said is borne out by what is in the Bill.

[Charlie Elphicke]

My hon. Friend makes a powerful point, and I hope that he, too, will consider joining the Committee to scrutinise the Bill to ensure that we get the right balance. I hope that he will table amendments to take forward the debate, even perhaps on whether we should remain part of the treaty. He might join forces with my hon. Friend the Member for North East Somerset on that issue. Such issues are important and they need to be explored. This is a Second Reading debate, so it is a sighting shot as to what a British Bill of Rights would look like. I have no doubt that the Bill could be dramatically improved in Committee and that the new settlement could be made even more ideal.

As I said, my first principle is that the UK Supreme Court should be the final court in UK law for human rights matters. Secondly, serious foreign criminals and persons in the UK illegally should not be able to avoid deportation by using human rights claims, as has happened in the past. Thirdly, the right to family life should not be available as a tool to avoid justice and escape answering criminal charges. Fourthly, suspected foreign terrorists should not be able to subvert national security or our personal security, or avoid deportation, by using human rights claims.

Fifthly, freedom of thought, freedom of conscience and freedom of religion should be protected to a greater extent than they are today. We have seen too many attacks on people’s thoughts, feelings and beliefs. There has been too much aggressive secularism, which has sought to attack the Church and people who have deeply held religious beliefs. We have seen that in the case of the Plymouth Brethren and the Charity Commission, and in the constant attacks on the Church and on religion both in Parliament and outside it. We must ensure that there is a space for people to have religion and religious beliefs in this country, and that people should be able to set out and preach what they think. Their right to free speech should be better protected.

[Rory Stewart]

I wonder whether my hon. Friend might reflect on a broader application of his provision. Would he see it as applying to Islam as well as to Christianity in terms of people’s freedom of speech and freedom to express what they believe, and the inability of the state to interfere in personal beliefs?

[Charlie Elphicke]

Yes, I would. It is important that every British citizen should be able to hold a belief. I may be a Christian, but I think we need to respect Muslims following the Islamic faith, as well as people following the Jewish and Catholic faiths, and Protestant Christianity. All those faiths are important. This freedom should not be unlimited; I have been careful to say in the relevant provision that freedom of religion does not extend to inciting physical harm or undermining national security. We cannot have a situation where freedom of religion could be used to promote terror, as has happened too often. That important limitation is in place, but it is important that we have religious freedom.

[Rebecca Harris]

Does my hon. Friend agree that the British public saw no mischief being created in British culture prior to our entering into the convention and that it is only since our entry that they have seen a slew of wealthy barristers getting much wealthier by doing a lot of things that seem to subvert our traditional culture? There was no apparent reason to introduce this convention in the first place, and that is a great cause of concern and confusion for the public.

[Charlie Elphicke]

My hon. Friend is absolutely right in what she says. I have been roundly criticised on social media by people who, oddly, seem to be lawyers in this area. I wonder whether part of the reason for their criticism is that they feel that I might be threatening their livelihoods. They are milking the system and the legal aid budget for every penny and pound they can get out of it in order to put forward their too-often spurious human rights claims. As a former lawyer, I have little sympathy for lawyers who seek to milk the taxpayer to fatten their wallets. That is important, and I have made it clear in my responses to people that they have a conflict of interest in terms of human rights issues and their own livelihood.

The sixth pillar is that the right to vote should not apply to convicted prisoners, a matter on which this House has expressed concern. The seventh is that legislation passed by Parliament should be changed only if Parliament so decides. Courts believing that legislation breaches human rights should declare their opinion, yet Parliament should make the final decision on whether laws ought to be changed.

The eighth pillar is that public authorities should not be penalised for applying legislation that is approved by Parliament, because that has happened too often, creating uncertainty and making their lives extremely difficult. They think they are doing what they have been told to do by Parliament and suddenly end up with a human rights claim and a member of the Bar pursuing a compensation claim, not only on his or her client’s behalf but on his or her own behalf, to get money out of the taxpayer. The ninth is that UK law should not be automatically interpreted in line with the rulings of the European Court of Human Rights. In deciding human rights cases, UK courts should take into account centuries of common law rulings from the UK and elsewhere in the common law world.

Finally, the UK social contract is not just about rights. It is about responsibilities and the contract should include responsibilities as well as rights.

[Bob Stewart]

I am not a lawyer, but it seems to me that there is a worry here. If my hon. Friend’s principles are put into law, will anyone in this country who disagrees with them and wants to avoid extradition, for example, have any right to go to the European Court and say, “This is wrong, may I appeal to you?” in order to delay the process? Will that process be negated by the Bill?

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[Charlie Elphicke]

The answer is that if we are a member of the treaty, of course they could go to the European Court of Human Rights. That is why the question of whether we should remain part of the treaty is important. Nevertheless, the decision would not take place in the UK legal system so they would not be able to stand on those European rights before UK courts or seek relief before the UK courts unless they had British rights under the British settlement. That is the key part of what we might call the dualist approach and obviously the Strasbourg machinery clanks more slowly and does not take every single case going, as the British courts are required to do. We would see a massive reduction in the level of cases but also in the level of public concern.

On the detailed provisions on UK rights and UK responsibilities, the Bill does not simply copy the text of the convention rights; it is a UK Bill of Rights and the rights it contains are referred to as British rights. The convention text is varied where needed.

Let me take the House through a few of the major headline changes. The main qualification is that the right to life is brought more into line with domestic law on the ability to use force in self-defence and to prevent crime. The prohibition of forced labour is clarified so that it explicitly does not prevent people from being required to undertake work or training as a condition of receiving welfare benefits. The right to respect a private and family life will no longer be available as a tool to avoid trial and punishment for criminal acts. The scope for limiting the right to manifest one’s religion or belief is reduced, and the right is limited only to stop the causing or incitement of physical harm to others so far as is necessary to protect public order. It is made clear that the right of free elections does not confer a vote on convicted prisoners or those who are not British citizens. I hasten to add that we have constitutional settlements that allow European, Irish and Commonwealth citizens to vote in certain cases, which are matters for Parliament to extend as it sees fit. The basic right should be that British citizens who are not prisoners should be able to vote.

The rights should not be used by those who are not British citizens to delay or avoid their deportation or extradition from the UK. They could not be used to prevent public authorities from taking action in relation to a person to uphold national security or public safety when the authorities reasonably believed that a clear and present danger to national security or public safety was presented by that person, although such action would not include the killing of that person, because we do not believe that Governments should go around killing people, unless it was already allowed under the right-to-life provision. Such action would also not include the use of torture or inhuman and degrading treatment or punishment. By getting the settlement right, we can put national security at the heart of our constitution and our constitutional rights, ensuring that the Government can protect our national and personal security. To my mind, that is the first call on Government.

In addition, the Bill includes rights not set out in the text of the European convention. They are: in England and Wales, the right to use force against intruders in a home, so long as that force is not grossly disproportionate; the right of a parent or guardian to challenge in court without undue delay the lawfulness of any removal of a child from their custody when the child is placed in custody by a public authority; and the right for a British citizen to challenge extradition to another country on the basis that they should have the right to trial in the UK if the alleged crime is committed while the person in question is in the UK. It does not displace basic rights in the UK legal order, so all our other constitutional documents from Magna Carta onwards remain, but provides an additional baseline of rights that apply in our nation.

Alongside the rights, the Bill includes a list of basic individual responsibilities. A person’s basic responsibilities include obedience to the law; rendering civil or military service when this country requires his support or defence; supporting, nurturing and protecting minor children to the best of his ability; respecting and upholding basic public order without placing himself in significant danger; seeking to support himself without recourse to a public authority to the best of his ability, including but not limited to seeking work or gainful employment where he can; and rendering help and assistance to other persons where reasonable and to the best of his ability, including but not limited to help for elderly and disabled persons. Those responsibilities are not direct obligations on individuals, nor would they automatically confer new powers on public authorities. Instead, they will be taken into account when a court considers a UK right.

[Mr Nuttall]

I appreciate that my hon. Friend is being very generous with his time in giving way. Article 23 in schedule 1 sets out the responsibilities that he has just listed. How does he think it would be enforced if an individual was thought not to have followed those basic responsibilities? We already have courts that people appear before if they break the law. What is the purpose of this provision and what more will be achieved by its inclusion in the Bill?

[Charlie Elphicke]

That intervention takes us to the key issue of determining whether a person should be able to stand on their UK rights. British courts must take into account all the facts and circumstances of the case, including the conduct of the person seeking to assert the UK right and his adherence to the responsibilities set out in article 23, in considering whether it is fair, equitable and in the interests of justice for such a UK right to be applied to the question at hand. It is effectively the heart of the subjective test to which my hon. Friend the Member for Christchurch referred earlier as coming to equity with clean hands.

An important point that goes to the heart of the Bill is that rights must be matched by responsibilities. If someone has not discharged their responsibilities, that is taken into account when they seek to stand on a right. In other words, if they have broken their half of the social contract, that will go against them when they seek to assert the part of the social contract or rights on which they want to rely. It is right that judges and the courts should be able to consider the case in the round to determine whether a person can avail themselves of those rights. As I have said, someone should not be able to use the right to family life to stay on the run. That is a basic part of the subjective test.

The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights. Those broader considerations should include whether a person seeking a basic right has kept his part of the social bargain and the social contract. That is incredibly important. If we talk to a person in the street about the social contract, they will say, “Well, there are two halves, aren’t there? There are rights, but there are also obligations”—or responsibilities, as I have called them. That recognises the duality of the social contract that lies at the heart of our society.

When it comes to interpreting UK rights, the Bill removes the provision of the Human Rights Act that requires British courts, when interpreting and applying the rights in the Bill, to take into account rulings of the European Court of Human Rights. Instead, the Bill makes it clear that UK courts may take account of judgments from a wide range of sources, including but not limited to the Strasbourg Court, with courts of common law jurisdictions getting top billing, and rightly so, because we are a common law country, and there is a common law world out there that we helped to establish in the days of our empire, which now proceeds with common law jurisprudence. Australia, New Zealand, the United States and Canada are all countries that have common law foundations and have given much thought to many of the issues that often come before our courts. Why would we not look to them first, before we looked at the civil law jurisdictions of Europe? I think that is the right balance for us to have.

The Bill removes the provision of section 3 of the HRA, which requires UK courts to interpret and apply legislation in compliance with human rights so far as is possible. Instead, the courts are directed to give legislation its ordinary and natural meaning. Where the meaning is ambiguous, the courts would typically presume that a possible meaning that complies with UK rights is intended. In that way, we would give primacy back to Parliament and restore the confidence of the British people that Parliament decides. We would have a uniquely British code of rights that is right for this country.

[Jacob Rees-Mogg]

Surely we should give confidence to the British people that the British people decide—they, through their Parliament, rather than Parliament in isolation.

[Charlie Elphicke]

I entirely agree. I am happy to be corrected by my hon. Friend about the emphasis. He is right. We are not here to represent the Government to our constituents. We are here to represent our constituents to the Government and to Parliament, and to ensure that their will is carried through. That is a central part of what my Bill is all about.

We need to restore the sovereignty of Parliament when it comes to human rights. We need to restore confidence in human rights with a uniquely British settlement that the British people will respect and trust, with the right balance of rights and responsibilities, and also with the right balance to ensure that Acts of Parliament are not just turned over by the courts, but that courts apply Acts of Parliament passed by the lawmakers, which is the way it should be. The horse should always go before the cart, not the other way around. We need the right settlement for the UK—a settlement that people can trust and have confidence in, so that they will feel once again that it is a British settlement for the British people, and that strikes the right balance and has the right balance in fairness, which, to my mind, is the cornerstone of the British psyche and the British way of life.

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[Rory Stewart]

Before my hon. Friend intervenes again, let me be absolutely clear that the distinction is this: when I say that somebody has a right not to be tortured, I am saying that they may not be tortured. I am not saying that they will not be tortured; there might be a horrible situation in which their Government do torture them. The statement is a moral statement, not a prediction about the future. It is a statement about what we morally give permission to do: “You may not be tortured; you may not be killed.” It is then possible to state certain threshold circumstances in which our moral intuitions in terms of human rights shift to moral intuitions in terms of a consequentialist world view in which we say, “One person might be killed for the benefit of a million.” These are nice questions of moral philosophy that do not usually come up in our everyday life, which is based on the dignity and inviolability of the human being regardless of circumstance.

[Charlie Elphicke]

My hon. Friend is making a very powerful argument in which he highlights a key difference between civil law and common law. In common law, we would take a utilitarian approach. If a plane were heading to London with 100 people on board and a nuclear bomb, we would say “Save the city”, but in Germany, under the civil law code, people would say, “You can’t touch the plane because of the inviolability of the right to life.” That is at the heart of some of the problems that I have been wrestling with in the Bill.

[Rory Stewart]

The example of the plane is a very good one. It is an exact example of where our moral intuitions collide. My instinct would be that neither ourselves nor a German legislature would be comfortable with the decision either way. These are terrible, terrible decisions involving two very deep moral intuitions. The first of those is that individuals should be treated as ends in themselves and not means to an end. As my hon. Friend so rightly points out, the German supreme court holds that a plane could not be brought down in those circumstances because it feels deeply that that would be to treat the people on it as a means to an end rather than an end in themselves. In effect, it would be doing to them something similar to killing one person in order to harvest their organs to benefit five others. The calculus is that five having benefited is not enough to outweigh the harm done to one. That is an important moral intuition.

However, my hon. Friend is correct to suggest that in the end most of us would disagree with that notion. I personally would disagree, as would, presumably, my hon. Friend the Member for Dover. In a situation of that sort, where 1 million people are going to be killed by an atom bomb, another deeper, stronger moral intuition arises which we often describe in terms of common sense but is in fact a utilitarian calculus—that there is a certain threshold of absurdity beyond which the protection of the rights of the individuals in that plane no longer makes sense. My hon. Friend the Member for North East Somerset has been very good at pointing out the contradiction that these are two separate philosophical principles, and at raising the question of where the threshold comes in. The terrible judgment that a politician would need to make in that situation is not one that can be resolved except through a deep understanding of the particular facts of an individual case.

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[Rory Stewart]

There is a disagreement here and it is not one that we can paper over. The question is: where should we put the weight of sovereignty? How important is sovereignty? Does sovereignty confer some form of immunity? Is there some magic in this Chamber that allows the legislators in it to do whatever they want? Is it the case, as Lord Hoffmann suggested in his judgment, that if this Chamber wished, it could simply flout human rights? Is that a statement about political fact in institutions, or is it about morality? Do we think that it is simply a fact that this Parliament could do whatever it wants, or do we think that this Parliament ought to be able to do whatever it wants? On this is based our whole conception of democracy.

Those who feel that this Chamber not only could, but ought to be able to do whatever it wants are basing their argument on one principle only, which is the principle of majority representation. Where I suspect there may be a disagreement between myself and my hon. Friend the Member for North East Somerset is on the notion that democracy is based not on one, but on two principles—majority representation and the protection of minority rights—and that, in the absence of the second criterion, we cease to be, in the full sense, a democracy.

This is a very difficult argument to make, because in this country we have every reason to be proud of the performance of this Parliament. Although theoretically, constitutional anxiety leads us to believe that this Parliament could do truly barbarous things, as a matter of fact it has not. In fact, consistently this Parliament has shown itself very respectful of the unwritten laws of the British constitution. When Parliament has attempted to fundamentally change the constitution of the United Kingdom through a simple majority in the House of Commons—as, indeed, it did with the proposal to abolish the House of Lords—it refused to take that opportunity. It backed away from it. Parliament’s reluctance, innate conservatism and caution with regard to issues relating to the constitution have meant that, from 1911 to the current day, people pushing for a written constitution or more formal constraints on the power of Parliament have not won.

That is good and it shows two positive things. First, it shows the important principle of common sense. Everyone in this Chamber agrees that we do not want to live in a world of technocrats. We like the fact that the British public have a say and that their common sense permeates this Parliament. At our best—we are not always at our best—we are a lens that connects the Executive to the voting public. We act as a mediator between public opinion—the sentiment, imagination and culture of the British people—and the laws passed in Parliament. Nobody in this Chamber wishes to pass to a world where we vest our power in technocrats or experts, such as a Mario Monti-type figure with great insight, who think they know what is best for the people. Our unruly common sense means that the public have tended to respect their landscape, to challenge the Government on, for example, wind turbines, and to refuse to co-operate—in a similar way to that in which the French public occasionally refuse to co-operate on farming—with the theoretical ideas of experts and Government.

The second reason to be proud of the sovereignty of Parliament is that it reflects a culture, but the question for my hon. Friend, who is one of the great supporters of untrammelled parliamentary sovereignty is this: do we have the confidence that the unwritten rules, the culture of this House and the deep understanding of the history of the British constitution—which meant in 1911 that Members of Parliament were very cautious about changing it—still hold, or did our vote on the House of Lords Reform Bill take us close to the brink? Is it possible that we are suffering from collective amnesia and that one can no longer say that the British Parliament is so deeply entrenched in its constitutional history that it can be guaranteed never to change fundamentally the British constitution?

If we are moving into a world that takes us into that danger zone, I believe that we need to follow the example of every other advanced democracy in the world and separate constitutional and normal law, and say that, in order to make a fundamental change to the constitution, which would affect the rights of citizens—this is why this is relevant to the European Court of Human Rights—we must ensure that special procedures are followed. The special procedure that we have tended to develop through precedent over the past 40 years is, of course, a referendum. We may not want a referendum to be the fundamental means by which we change the constitution. We may want to adopt a different procedure, such as a two-thirds majority or a free vote in the House—which, of course, is what the previous Government used to deal with the issue of the House of Lords—but we are moving to a world in which we need a proper procedure.

The reason why that is relevant to this debate is that the question of parliamentary sovereignty and its relationship with the European Court is the nub of the issue. The argument against the European Court cannot simply be that Parliament is sovereign, absolute and always right and that it should never be challenged. We have developed a doctrine of international intervention with regard to the notion that sovereignty does not confer immunity—that the rights of a country’s individual citizens can trump the sovereignty of a Parliament.

The second argument—moving on from sovereignty, with apologies for having paid so much attention to it—is about the question of moral relativism, although my exchange with my hon. Friend may have covered this issue adequately. The idea of moral relativism states that the question of prisoners voting is purely relative. I like chocolate ice cream, Mr Deputy Speaker, but perhaps you like strawberry ice cream—that is a question of taste, not of moral decision. The Spanish believe that prisoners should have votes and the British do not, but to argue that such things are purely relative and that there is no way of resolving them is very dangerous, because all these questions about rights are fundamentally issues of morality. Moral language is a statement about what is right and what is wrong—what we ought to do and what we ought not to do. It is not a statement of personal taste akin to saying, “I like red, you like blue, and that’s the end of the discussion.” What one says is, “You are wrong.” We must believe it is possible to resolve the question of who is right and who is wrong on the issue of prisoners voting and to do so through moral investigation and debate.

[Charlie Elphicke]

I thank my hon. Friend for giving way; he is being very generous in taking interventions. I would say that the issue is slightly different. The Spanish think that prisoners should have the vote and the British do not, but the error is the one-size-fits-all approach taken by the European Court. There should be an acceptance that different countries will arrive at different solutions. A universal morality should not be thrust on all.

[Rory Stewart]

The powerful argument made by my hon. Friend is, indeed, the same as that made by Lord Hoffmann, who says that universal rights, such as those under the European Court of Human Rights, are simply aspirational and that any universal code is aspriational, but it is always national in its application. The argument made by Lord Hoffmann and my hon. Friend is that the European Court of Human Rights and the convention are purely aspirational: they are a good way of encouraging people to behave better, they are a good way of doing political lobbying and they are a good way of applying pressure, but in their application, human rights can only be national. The notion is that human rights are relative to a particular historical or political context. In the view of Lord Hoffmann and my hon. Friend, but not in my view, the question of whether prisoners should vote should not be determined by moral debate because it is specific to a particular historical or national context. For them, the real answer to whether prisoners should vote depends on the difference between Spanish culture and British culture.

That is, of course, a position that I reject. I cannot accept it because rights are absolute, universal and inviolable. It cannot be the case that one’s possession of rights is relative to the circumstances of a particular culture. It cannot be the case that the mere fact that somebody lives in Saudi Arabia means that they have fewer rights as a woman. It cannot be the case that the mere fact that somebody lives in Taliban Afghanistan means that they do not have freedom of the press. Those rights, if they are rights at all, rest on one fact and one fact only: the fact of one’s humanity, not the fact of one’s nationality.

[Charlie Elphicke]

Lord Hoffmann said that human rights are universal in their abstraction, but national in their application. I think that what he was saying was that one-size-fits-all does not work and we need room for what used to be called subsidiarity, but which in this debate has been called proportionality or the margin of appreciation. The margin of appreciation is central to getting the right settlement that all countries can live with.

[Rory Stewart]

My hon. Friend brings us neatly to the third question on the Bill: the question of subsidiarity and triviality.

To move on from the big questions of sovereignty and meta-ethics, the central argument that my hon. Friend has made, which is an important one, is fundamentally about triviality. Lord Hoffmann may be suggesting that although at a theoretical level it may be possible to resolve whether prisoners should vote, as a practical point, the issue does not really matter. It is subsidiary—that is, it should be left to individual countries—because it is just too disruptive to the international system to try to impose, as my hon. Friend puts it, a one-size-fits-all approach. The argument is that trying to resolve the issue of whether prisoners should have the vote is disruptive to the international system.

That is a strong intuitive argument and one that we might have a lot of sympathy with in this House as politicians. It is obviously not a moral argument, because Lord Hoffmann’s argument does not hold water as a moral argument. It cannot be the case, as a question of ethics, that nationality is the prime determiner of one’s rights. However, that may be true as an issue of practicality. We might want to allow some flexibility in the process for the sanity of the international system. Although that is really tempting, the reason why we should not go down that path is twofold.

For a legal system, the question of triviality cannot be relevant. It is not possible for a judge to determine a case simply on the basis of whether they think that the question of prisoner voting is important in the grand scheme of things. The judge is there to make a decision on the basis of the law. That is why we often get frustrated and often find the system very peculiar.

The classic example, which is something that I hate about the European Court of Human Rights, is the case that was brought by the man who did not want to give his name when he was caught speeding. That case went all the way up through the courts system. The man argued that he should not have been obliged to give his name when spotted by a speeding camera because he had a right of privacy and a right to silence. He objected to the fact that he was going to be fined for giving his name.

Throughout the process, the courts did not say, “This is a trivial issue. It is a minor speeding fine, so we’re not interested.” The case went all the way up to Lord Bingham who, at great length and with enormous politeness, explained to the gentleman that his right to silence did not extend to not giving his name in relation to a speeding fine. At that point, the gentleman applied to the European Court which, perhaps to the delight of speeding motorists, seemed for a moment in a majority judgment to say that the man should not have to give his name because of the right of privacy.

That case shows that the triviality argument does not operate and, much more importantly, that judges are not politicians. It is not for a judge to determine whether it would be politically disruptive or inconvenient for a particular judgment to be passed. They may intuitively, in the back of their mind, be influenced by what they have read in the newspaper and they may be anxious that if they pass a judgment that is objectionable to the public, it will undermine the legitimacy or reputation of the judiciary, but those cannot be formal considerations in their decision. It cannot be that the European Court, which by its very nature has sanctions, can consider whether making a certain decision is disruptive to the international system or undermines the legitimacy or reputation of the Court itself. Those cannot be the terms on which moral or legal decisions are made, although we may often feel that they are the terms on which political decisions should be made.

A good example of that is the question of gay marriage, which has been a controversial issue in this Chamber. It makes perfect sense for a political Chamber to say, “This is a philosophical question and we feel, for political reasons, that this is not the appropriate moment to raise it because it would cause too much disruption and unhappiness.” However, at the point at which the issue is raised and put to the vote, it no longer makes sense to talk purely in terms of public opinion and disruption, particularly in a case that relates to morals or ethics, and it becomes necessary to look at the merits of the case and examine it philosophically.

The argument for why the European Court should not get involved in prisoner voting therefore cannot be that the issue is trivial or disruptive. The reason why there must be subsidiarity and why there cannot be a one-size-fits-all approach cannot, from a moral or legal point of view, be that it causes inconvenience.

Before I move on to the fourth and final part of the argument, I will go over the three arguments about the European Court that we have considered and that do not hold water. The first is the argument that the European Court should not exist because Parliament is absolutely sovereign. As a moral principle, as opposed to a statement of constitutional fact, that is objectionable. The current evolution of British culture and the behaviour of the British Parliament over the past 20 years suggest that it would be dangerous to put the entire reliance for our constitutional system and the protection of rights on the individual decisions of a temporary majority in a sovereign Parliament.

The second argument that we have rejected is that questions such as prisoners’ voting rights are purely relative, that there are no moral absolutes and that such questions cannot be resolved in a philosophical sense. The contention is that moral arguments are simply a question of, “You think this and I think that,” and there is no way of resolving them, as if they are just a question of taste, as in the trivial example that I gave of one person liking chocolate ice cream and another liking strawberry ice cream. No; we believe very strongly that moral arguments are different from arguments of taste. There is an answer to these questions.

There is therefore an answer to the question of whether prisoners should have voting rights. It is based on whether we believe that the dignity and inviolability of the prisoner’s status as a moral actor—as a human—requires them, always and in all circumstances, to have a vote or not. Personally, I do not find that argument convincing. A prisoner is not entitled, as a fundamental element of their human dignity and inviolability, to a vote in all circumstances. That is not, however, simply a question of taste. It is a question of moral argument.

The third argument we are rejecting is that it is simply inconvenient to talk about such matters and that it disrupts the international system. That is a tempting argument, because we set up the Court; David Maxwell Fyfe essentially drafted this document and steered it through. Britain is in the rather unfortunate situation of embarrassment. We were proud of this Court, and if we wished to tease ourselves a little bit, we could point out the fact that for 40 years we rather enjoyed the fact that the Court told other countries how to behave. We felt—probably intuitively—that the point about the Court was that it would hopefully drag others up to what we rather pompously felt was “our level”.

We became anxious about the Court only once it turned round and started telling us, as opposed to foreigners, what to do—a difficult and embarrassing situation. We liked the Court when it did a good job of insisting that countries in southern Europe should have habeas corpus and no detention without trial. We became anxious only when the countries that we had cheerfully made accord with British legal norms for 40 years turned round and tried to demand that we accord with their legal norms on prisoners voting. There is a good reason to feel politically and institutionally, in terms of public opinion, that we do not like that idea and would allow subsidiarity simply to avoid political embarrassment. However, as I have argued, that is not a moral or legal position; it is purely a question of expediency and convenience, and no moral principle can be based on expediency.

The fourth and concluding argument concerns what we should do about the European Court. We should not give up the notion that there are inviolable and universal human rights, or that the sovereignty of Parliament must respect the rights of the individual. We should not give up the notion of moral absolutes or accept the notion that political expediency can override moral or legal principles. We must return to the fundamentals and challenge the moral and legal argumentation of the European Court, and we would do that in exactly the way that my hon. Friend the Member for Dover has so eloquently explained.

From my point of view, my hon. Friend is not producing a measure that would lead us to leave the European convention, but he points out that the Court’s current operations are resulting in absurd, surreal consequences. The way to address that problem is to look again at the European convention on human rights, and consider how it was drafted in 1950, what ingredients lie within it and how much latitude that gives the Court. A Court that one year ago had 100,000 cases waiting to be heard—an absurd number—needs to say no to far more cases. The Court must understand that the 1950 drafting of the convention allows it very little latitude, and that it is currently engaged with many issues that are outside the purview of the original convention on human rights.

A classic example of that is prisoners voting. The point is not that the question of prisoners voting cannot be resolved legally or philosophically but that it cannot be resolved on the basis of the European convention on human rights. Nothing in the convention provides sufficient detail or cogency to allow a judge, purely on the basis of the nostrum of a democratic society, to derive from that vague and abstract principle the conclusion that prisoners should have a vote. Such a thing could be done, but not by the European Court. It could be done by the British Parliament or by a British court, because it requires a much deeper background of legislation. In our case it would require the corpus of the common law; in Spain it would require the corpus of its continental legal system. To reach such a conclusion requires far more than the brief statements in the European convention on human rights.

That does not mean that the European convention on human rights is useless—far from it. The convention with its fundamental principles is an incredibly useful, dynamic document that is unambiguous and clear—as it should be—on questions of torture. It makes every sense for the European convention on human rights and the European Court to rule on the protection of fundamental political rights of the sort contained in that document. It is not that torture, genocide, arbitrary arrest and arbitrary imprisonment are the only issues that matter. Many other issues of human rights also matter, but those are the only issues covered in the convention and on which the Court should be ruling. That is why the Brighton declaration brought together by this Government as the President of the European Council—the statements by the Secretary of State and the Lord Chancellor—are correct.

We require fundamental reform of the European Court. We must radically reduce the number of cases it deals with and clarify its legal and philosophical basis to determine on which cases it should and should not rule. The notion of subsidiarity, which was raised so eloquently by my hon. Friend the Member for Dover, is not a moral, legal, or philosophical principle but concerns the ingredients of the European convention on human rights. Those things are subsidiary because they are not covered in that document. We should not lose confidence in the notion of rights and in a convention that we were proud to create and which was created by a Conservative Member of Parliament and Lord Chancellor.

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[Mr Nuttall]

I am grateful to my hon. Friend for that intervention and I might be able to address that point in the course of my remarks. This is a matter of great concern to our constituents, and there is, perhaps, less of a philosophical disagreement among our constituents than that which we witnessed in the passionate and erudite speeches of my hon. Friends the Members for Penrith and The Border and for North East Somerset.

I warmly congratulate my hon. Friend the Member for Dover (Charlie Elphicke), who I am pleased to see back in his place. I understand that he quite reasonably took the chance to nip out for some sustenance, having made such a wonderful opening speech. It is entirely thanks to my hon. Friend that we are here this morning and I know that he has put in an enormous amount of hard work over many months to put the Bill together. I know that he had the help of others, but I shall leave it to him to decide whether he wishes to name them.

[Charlie Elphicke]

I thank my hon. Friend for giving way and for his typically generous comments. I should place on record my thanks to Robert Broadhurst, who helped me to put the Bill together and make the case for it. He has done a fantastic job. I also thank the members of the official Commission on a Bill of Rights, particularly Anthony Speaight and Martin Howe, whose learned input has helped, I hope, to improve the Bill.

[Mr Nuttall]

I am grateful to my hon. Friend for that intervention and I associate myself with his comments. The whole House is indebted to them for their work and diligence in putting together this Bill. I might not agree with every particular of it, as my hon. Friend the Member for North East Somerset has just said, but that is not the point. The point is that the House has been given an opportunity to debate a matter that is of great consequence and concern to our constituents.

We must not forget the manner in which my hon. Friend the Member for Dover managed to obtain the slot for the Bill in the first place. As Members might be aware, I am a member of the Procedure Committee, along with my hon. Friend the Member for North East Somerset. We had the pleasure of listening to my hon. Friend the Member for Dover when he came before us to give evidence as part of our inquiry into the private Members’ Bills procedure. My hon. Friend regaled the Committee with the manner in which he obtained the slot to introduce the Bill as a presentation Bill—I think that is right, and he is nodding in assent. He slept overnight outside the Committee Room—in the corridor, I understand—with little by way of sustenance. I think he mentioned that he might have slipped out for the odd beer, which is quite understandable. He stayed in the corridor overnight to ensure that he was first in the queue the next morning to secure a slot and have first pick of the dates for Second Reading. It is as a result of his hard work and diligence on that occasion that we are here today. The whole House should be grateful to my hon. Friend for that. He has done us all and the country a great service.

Looking at the Bill, one can see that it is no ordinary private Member’s Bill. Such Bills often run to just one or two pages, but this is a substantial Bill, which runs to no fewer than 21 clauses and has a schedule of several pages annexed to it. That gives some measure of the work that has gone into preparing it and bringing it before the House this morning. It should have been introduced as a Government Bill. Had a majority Conservative Government been formed after the last general election, perhaps it would have been. On page 79 of the Conservative manifesto at the last general election the following commitment was made:

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”

We all accept, of course, that the Conservatives did not win that general election and it is therefore understandable that the Government, being a coalition Government, have not introduced a Bill that was foreshadowed only by the Conservative manifesto. The coalition agreement provides for a commission, about which we heard this morning, to be established to look into the appropriateness of replacing the Human Rights Act with our own UK Bill of Rights.

--- Later in debate ---

[Mr Nuttall]

I can only speculate that it is perhaps as a result of yesterday’s by-election in the parliamentary constituency of Eastleigh, which I am sad to say was won not by the party to which both my hon. Friend and I belong, nor by the party of Her Majesty’s loyal Opposition, but by our coalition partners in government, the Liberal Democrats. It may be that, inexplicably, they found it necessary to celebrate long into the wee, small hours of the night their success in holding what was a Liberal Democrat seat in the first place, and that as a result of that celebration not one of them has managed to make it on to their Benches this morning.

[Charlie Elphicke]

I thank my hon. Friend for his extremely generous comments. Would he care to comment on the absence of Labour Members? Considering that they made this massive change to the British constitution, putting us under the hegemony of a foreign court and undermining our justice system so wholeheartedly, is it not amazing that they have not turned up to defend it?

[Mr Nuttall]

It is indeed disappointing that we have not yet had the pleasure of hearing Opposition Members’ thoughts and observations on the Bill. I hope that we will hear from them later in proceedings. Perhaps, just as I am disappointed not to have heard from them, they are disappointed about their by-election performance and are commiserating with each other.

Let me say at the outset that I would have preferred the Bill merely to repeal the Human Rights Act and to make it clear that we would no longer accept the rulings of the European Court of Human Rights. I appreciate what my hon. Friend the Member for Dover said about the nature of international treaties, but it ought to be for this House to give a steer by stating that we think it is time to pull out of the European convention on human rights. I will explain, over the course of my comments, why I think that would be reasonable and feasible, why we could do it without any loss of international influence and why it would be entirely in tune with what the British people expect us to do.

My mind is taken back to the run-up to the last general election, when I detected two common themes that were brought up on the doorsteps, in street surgeries and when I chatted to people on the phone. I am not saying this to be directly critical of the previous Administration; this is just a fact and how I found it. First, people were concerned about what has been described as the “something for nothing” culture. I will not go down that avenue, because it has nothing to do with today’s proceedings. Secondly, they were concerned about the whole arena of human rights and the way they had been enforced in the years following the passage of the Human Rights Act. There was a feeling that we had somehow been dragged down a road that meant that criminals—I will hopefully have an opportunity to explore this in more detail later—are the one group in society who have the time to analyse in depth the detailed provisions of human rights legislation. That group, spurred on by lawyers, seem to have adopted the whole field as a lucrative source of income while incarcerated in one of Her Majesty’s prisons. That, above all, is what has caused my constituents, at least, to feel that somehow the system is letting them down. To put it in a nutshell, that is bringing the whole field of human rights into disrepute.

Perhaps I would not have introduced the Bill in exactly the same form, but it is nevertheless absolutely a step in the right direction. In common with my constituents, I am far from satisfied that the current position is acceptable, and what the Bill proposes would be far preferable. It would establish a situation that was much more even-handed and fair to the British people than currently, where our constituents feel that it is entirely wrong that time and again what they see as a foreign court is telling our courts and, in essence, this House what they should and should not be doing.

[Charlie Elphicke]

Is not the key and central point that we need to get the convention and the European Court of Human Rights out of our legal system so that our courts are not hog-tied by the European Court but can follow the hundreds of years of case law that has been developed in the English legal system?

[Mr Nuttall]

I am grateful to my hon. Friend for that intervention, because he hits the nail on the head. Part of the problem with the whole arena of human rights legislation is that, as the years have passed, particularly as the process has speeded up since 1998, we have ended up in a situation where because of judicial activism there is almost no end to the triviality of the cases that are being brought before the Court. I have some figures on that to which I may refer later. That brings the whole field of human rights into disrepute.

People traditionally thought of human rights in the context of what happened during the last century when unspeakable atrocities were inflicted on men and women by, principally, the Nazis in the second world war, and also behind the iron curtain. My right hon. Friend the Lord Chancellor said in an article in, I think, The Daily Telegraph before Christmas that anyone who is concerned about human rights should be aware of what Alexander Solzhenitsyn wrote in his portrayals of the brutality of the Soviet gulags under Stalin and his successors. Local Communist party members were sent to labour camps without trial for crimes as trivial as being the first to stop applauding at the end of a meeting. Peasant farmers were driven off their land and literally dumped at the end of a railway line in the heart of Siberia and left to fend for themselves or die. People were tortured to death in the basement of Moscow’s Lubyanka prison.

It was having in mind the atrocities that had happened in parts of Europe in the 1930s and ’40s that inspired Winston Churchill and other democratic leaders to come to together in the aftermath of the second world war to forge the European convention on human rights, which was signed in Rome back in 1950. It set out the fundamental rights regarded as the absolute basis for a democratic nation at the time, such as the right to life, the right not to be tortured and the right to a fair trial, which are not the sorts of things that we have seen litigation on in recent times.

It would be remiss of me not to welcome my hon. Friend the Member for Cheltenham (Martin Horwood) to the Chamber, given that we have commented on the absence of Liberal Democrats. We are delighted to see him here—he obviously did not celebrate last night’s result in Eastleigh too much—and look forward to hearing the Liberal Democrats’ views on the Bill later.

I have set out the background against which the 1950 European convention was crafted. What has gone wrong? We seem to have moved away from those very high moral principles. Although I hesitate to venture down that road, I will dare to do so in the absence of my hon. Friends the Members for Penrith and The Border and for North East Somerset. We have moved a long way from the sorts of rights that were in the minds of the draftsmen of the 1950 convention to where we are today.

Claiming that an individual’s human rights have been infringed has become something of a niche industry in the legal sector. There are now lawyers who appear to do very little else but engage themselves in making claims that one or other persons have had their human rights infringed. It is obviously a lucrative business. They often work at the taxpayers’ expense, thanks to the availability of legal aid. I would be interested to know—perhaps the Minister will be able to tell us this—how many of the claims relating to human rights legislation that go through the courts are funded privately. I venture to submit that there are very few indeed and suspect that the majority are funded through legal aid, a no win, no fee agreement, or charity sponsorship. I suspect that very few individuals pay for their own cases to go to court.

That is a double whammy for the taxpayer, because as well as paying the costs of bringing the case, the British taxpayer picks up the bill if the case is lost but the European Court of Human Rights finds that there has been a breach of an individual’s human rights. In fact, it is probably a triple whammy, because as well as paying the legal aid bill and any damages awarded, we also have to pay the costs of those Government lawyers and civil servants who defend the case. As we have heard from my hon. Friend the Member for Dover, it was revealed recently in a parliamentary answer that Abu Qatada has received about half a million pounds of taxpayers’ money through the legal aid system to pursue his apparently never-ending series of appeals. I do not think that my constituents are alone when they express to me their outrage at the current system.

[Charlie Elphicke]

My constituents take the view that the half a million pounds that Abu Qatada has been given in legal aid could have been used to great effect to employ more teachers, nurses and doctors and to provide better public services. One reason why people are very critical of Labour for having brought in the Human Rights Act is that it has put an even greater strain on the public finances.

[Mr Nuttall]

My hon. Friend is absolutely right. Our constituents are outraged not because of human rights per se, but because of the knock-on effect and where it is leading us as a country. They see the hard-earned money that they have handed over to the Government in taxes being spent on cases, the majority of which are seen as trying it on. They see criminals behind bars bringing cases that are nothing more than fishing expeditions. The criminals have nothing to lose personally if the cases fail and everything to gain if they are successful. From the lawyers’ point of view, if they are being funded through the legal aid system, as is the case with prisoner voting, and they are successful with one case, they can go farming among the prison population to find dozens, hundreds or perhaps even thousands of other cases that they can adopt and bring forward for adjudication in order to claim damages.

[Charlie Elphicke]

Is it any wonder that the overwhelming majority of people tell pollsters that they see the Human Rights Act as a charter for criminals, the undeserving and lawyers? That is a key reason why we should have a new settlement to rebalance the situation and get some real justice back in the UK.

[Mr Nuttall]

My hon. Friend is absolutely right. That is one of the key reasons why the majority of people in this country would support the Bill.

We have not heard from the Opposition or our friends in the Liberal Democrat party. Perhaps they have been convinced by the strength of the arguments this morning, but they may well oppose the Bill. However, I find that supporters of all political parties support what my hon. Friend’s Bill seeks to do. It is not a party political issue among ordinary voters. They are all equally outraged at some of the cases that have hit the headlines in recent years. I agree with my hon. Friend that people see the Human Rights Act as something that diverts their hard-earned taxpayers’ funds away from the things that they should be spent on, such as providing more doctors and nurses, to paying lawyers to bring forward spurious cases.

Perhaps I could refer the House to one such case. Samuel Betteridge was a young man who raped a 14-year-old girl after luring her to his flat and forcing her to drink alcohol. In 2005 he admitted at Lincoln Crown court two counts of rape and one of attempted rape. His minimum jail term of five years was later reduced on appeal to three and a half years. His parole hearing was fixed for May 2009 but later postponed until January 2010.

Through his lawyers, Mr Betteridge appealed to the European Court of Human Rights on the grounds that the delay in his parole hearing violated article 5 of the European convention on human rights—the right to a speedy hearing. The Strasbourg judges, needless to say, agreed with Mr Betteridge’s submission and found in his favour. They said that

“the delay in reviewing Mr Betteridge’s case was the direct result of the failure of the authorities to anticipate the demand which would be placed on the prison system following the introduction of IPP sentencing”.

Those are indeterminate public protection sentences which, as the hon. Member for Hammersmith (Mr Slaughter) and other hon. Members know, are now being abolished—[Interruption.] Yes, changed; effectively abolished, perhaps.

[Mr Nuttall]

If my memory serves me rightly, together with my hon. Friend the Member for Shipley (Philip Davies) I took a similar view on that matter and— I think—went into the Division Lobby to try to avoid it happening. There is a place for such sentences but I do not want to be drawn down that avenue. This debate is not about sentencing policy, but that was the subject of the case I mentioned and it is therefore right at least to touch on how it came about.

The High Court in London originally dismissed the case, but the European Court of Human Rights backed Mr Betteridge and awarded the rapist £640 in damages plus £1,710 in legal fees—I bet that did not go far towards paying those fees. According to my information, Mr Betteridge was apparently not alone in receiving payments for delayed parole hearings and was one of 100 prisoners who has received in total more than £313,000 over the past three years as a result of an alleged breach, found to be an actual breach, of their human rights. Most of our constituents would agree with Robert Oxley of the TaxPayers Alliance who said:

“It’s disgusting that taxpayers are being made to pay for an award to a rapist thanks to European Court meddling.”

Of course, he was referring to the European Court of Human Rights, not the European Court of Justice.

As the House is aware, that was not the only case to hit the headlines. A case with an even more substantial effect, certainly on proceedings in this place, was that of Hirst, which was, in effect, the leading case on prisoner voting rights. In 1979, John Hirst used an axe to kill his landlady in her own home. In the following year he was convicted of manslaughter on the grounds of diminished responsibility and sentenced to life imprisonment with a tariff of 15 years, after which he could be released on licence. In fact, he was not released until May 2004 because of concerns that he might present a danger to the public; for example, he was found guilty of an offence under prison rules when, in 1998, he slammed a van door against a female prisoner officer.

Mr Hirst used his time in prison to teach himself law. He became a student of human rights legislation and a serial litigant against the authorities. There is no time this morning to go into his various cases, but suffice it to say that in one of them the court ordered that the Government pay Hirst £1,000 in damages and a further £7,500 in costs. That was before what we might call his cause célèbre—Hirst v. United Kingdom (No. 2)—which was to prove far more controversial, and related to whether his human rights had been violated because he was not able to vote while he was in prison.

[Charlie Elphicke]

The case of Hirst is entirely clear-cut. He is a man soaked in blood. He is remorseless and unapologetic, yet he uses taxpayers’ money to seek the right to vote. I am hard pressed to think of a more despicable and evil person in this country.

[Mr Nuttall]

My hon. Friend echoes the views of many millions of our constituents across the country. Hirst submitted a claim to the European court based on article 3 of the first protocol—the right to free elections—which states:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

The wording of article 3 does not actually confer individuals with a right to vote. When the Grand Chamber gave its judgment, it stretched a point; the court had already decided in the case of Mathieu-Mohin and Clerfayt v. Belgium that article 3 included an individual’s right to vote and to stand for election.

It is illuminating to consider how Hirst built on the previous Mathieu-Mohin case. It shows how rights are developed incrementally, case by case, salami-slicing common sense and gradually moving away from what most people would think article 3—in this case—actually meant. As was discussed during our debates on prisoner voting, the Court ruled that this issue had not been considered here. I submit that it was considered in section 3 of the Representation of the People Act 1983. It may not have been debated specifically—I was not here at the time—but presumably that was because both sides of the House took it for granted that prisoners would not have the vote. That was accepted by the whole country and the whole House.

--- Later in debate ---

[The Minister for Policing and Criminal Justice (Damian Green)]

I start by congratulating my hon. Friend the Member for Dover (Charlie Elphicke), not only on the powerful case he made in his introductory speech and on choosing such a central and serious issue for his private Member’s Bill, but on the depth of the Bill itself. My hon. Friend the Member for Bury North (Mr Nuttall) made the point that this Bill is different from some of those debated here on a Friday morning, in that a huge amount of thought has clearly gone into the detail. My hon. Friend the Member for Dover is to be congratulated on that and on framing his speech in the way that he did. It was instructive that his speech and this Bill provoked the speech made by my hon. Friend the Member for Penrith and The Border (Rory Stewart) and the modern version of a Socratic dialogue between him and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). A Friday morning when this House is forced to confront the difference between deontological and utilitarian responses to the moral consequences of our actions cannot be described as a Friday morning wasted. I think we all felt better educated and informed at the end of that dialogue, and that was even before my hon. Friend the Member for North East Somerset added to the philosophical wisdom we had from my hon. Friend the Member for Penrith and The Border with his own inimitable lecture on the history and the necessity of our being cognisant of the importance of history in all this House’s deliberations.

The Bill would make significant changes to the existing UK human rights framework to attempt to address a number of concerns that have been expressed throughout this debate. Those changes include: repealing the Human Rights Act; having the UK still bound by the European convention on human rights but with the convention no longer forming part of the UK legal system; and the creation of a new set of UK rights, which add to and alter the existing rights in the European convention. That would, for example, remove the possibility of using the right to family life as a means to avoid deportation.

It is probably sensible for me at the outset to set out the Government’s policy, as was requested by the hon. Member for Hammersmith (Mr Slaughter), who speaks for the Opposition. I should congratulate him as well, because that was the shortest speech I have ever heard him make. [Interruption.] He says from a sedentary position that he was under orders. It is another unusual experience in this House to find someone under orders to speak for less time than they would like rather than for more, which is the normal Whips’ instruction, in my experience. Let me make it clear for him and for the House that the Government remain committed to the European convention on human rights and to ensuring that those rights continue to be enshrined in UK law.

However, we are also closely involved in the process of reform of the Strasbourg Court and we must ensure that it can focus more quickly on the cases that need its attention. I hope that there is agreement across the House on the need to reform the Court, and that the Brighton declaration, which I shall come to later in my speech, is testament to our hard-won efforts in realising the Government’s pledge to reform that Court. We must recognise that much more needs to be done, however. The achievement of the previous Lord Chancellor, the Minister without Portfolio, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), in bringing about that important reform and persuading many countries to go along with it is extreme, but there is still more to do.

I agree with my hon. Friend the Member for Dover that one of the biggest problems is the misrepresentation of the Human Rights Act and public bodies misapplying the concept of human rights or using them as an excuse for bad decisions. That has been at the root of many of the problems in this country with judgments of the Court, some of which have been brought up in the course of the debate and with which I shall deal later.

The other main changes that the Bill would make include ensuring that legislation passed by Parliament can only be changed by Parliament and setting out in statute a list of individual responsibilities that would not impose direct legal obligations on individuals but would be taken into account when courts were considering the application of the new UK human rights. The issues raised by the Bill inevitably attract a wide range of views, although the House should note that most of the views expressed in the debate were supportive of my hon. Friend, and the debate has been helpful in airing them.

The coalition’s programme for government was clear about the importance we as a Government attach to the question of civil liberties. Human rights are an essential element of any wider consideration of civil liberties in a modem democratic society. My ambition in the course of the debate, which will clearly go on for a number of years and, conceivably, into future Parliaments, is to reclaim human rights from the position of being almost a “boo” phrase. There is something absurd about a situation in which people can regard human rights and support for them from Parliament or the courts as leading to bad consequences. Something has gone seriously wrong when we reach that stage and we need to reclaim human rights so that they are, as they ought to be, the motherhood and apple pie of politics. There is no reason for anyone to object to human rights being applied to as many societies as possible throughout the world. Nevertheless, we are where we are and the legislative framework for human rights in the United Kingdom is a subject on which there are strongly held and often conflicting opinions.

The programme for government recognised those opinions and contained a commitment to

“establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties.”

It also hoped to

“promote a better understanding of the true scope of these obligations and liberties.”

In accordance with that commitment, the independent Commission on a Bill of Rights was established in March 2011. The commissioners were experts who reflected the full range of views in the UK human rights debate, and included public supporters of all the main political parties.

The commission carried out two written consultation exercises and undertook a programme of seminars and visits to all parts of the United Kingdom in order to discharge its terms of reference. It reported to the Deputy Prime Minister and to the Secretary of State for Justice on 18 December.

I hope the House will agree that the commission’s final report was a thoughtful and detailed consideration of the key human rights issues and the human rights landscape in the United Kingdom today. The Government are grateful to the commission for the diligent way in which it discharged its terms of reference. Unsurprisingly, the commission’s report covers many of the issues and concerns that appear in the Bill. For reasons that I will set out later, the Government do not believe that now is the right time to decide on the changes proposed in the Bill, but if the House is minded to take the Bill into Committee, I will later set out a number of points that may assist the House in its further consideration. In doing so, I will make use of the very helpful work done by the commission, which is set out in detail in the final report.

Let me deal first with the points made by my hon. Friend the Member for Dover in his introductory speech. He explained that one of the 10 pillars of his Bill is that freedom of thought, conscience and religion should be protected to a greater extent than they currently are. He further explained that this greater protection is necessary because of the attitude to religion and belief. I am sure many will agree with him on that. He may be aware that the Strasbourg Court recently gave judgment in four cases concerning article 9—the article that deals with freedom of thought, conscience and religion—and that in each of those four cases the applicant was Christian.

The outcome of those cases confirmed that, for example, our law allows people to wear crosses at work, and that British employers are generally very good at being reasonable in accommodating people’s religious beliefs. We welcome any reasonable steps that employers can take to accommodate the wishes of their Christian employees or of those who hold a different religion or belief. Under the Equality Act 2010, employees of all religions and belief are protected against discrimination. Employers can lawfully stop their employees wearing jewellery, including a religious symbol, at work only if they can show that their policy does not disadvantage people belonging to a particular religion or belief or, if it does, that it is a proportionate means of achieving a legitimate aim. There are obvious examples of health and safety reasons why a particular item might be thought to be dangerous.

Those decisions were widely welcomed. My hon. Friend the Member for North East Somerset said that he could not remember any acclamation for a judgment of the Court, and he is of course right. Nevertheless, it is fair to say that the response to that particular raft of judgments, which touched on one of the most sensitive areas involved in modern human rights legislation, were perhaps slightly grudgingly welcomed by those, particularly in the media, who would not normally think of themselves as friends of the Strasbourg Court.

My hon. Friend the Member for Dover raised a huge number of other important issues, including that of self-defence. It would be interesting—and perhaps for later discussions—to understand how the Bill’s additional provision in relation to self-defence is intended to relate to law in England and Wales or Scotland outside the Human Rights Act, in particular the provisions currently before the House in the Crime and Courts Bill.

[Charlie Elphicke]

I was pleased to serve on the Committee scrutinising the Crime and Courts Bill. The moves made in this area are welcome. My contention is that that should be far more fundamental to our way of life, rather than in a particular provision, which is why I tried to detail the articles in the Bill.

[Damian Green]

I am grateful and the House will be grateful to my hon. Friend for that important clarification. He also spoke, rightly, about section 2 of the Human Rights Act and the obligation for the courts to take into account Strasbourg jurisprudence. He entered the discussion that has been taking place for some time about what exactly that should entail. The Commission on a Bill of Rights noted that Lord Phillips, then President of the Supreme Court, said in evidence to Parliament:

‘If the wording “take account” gives a message at all, it is that we are not bound by decisions of the Strasbourg court as binding precedent.’

I think that many will welcome that clarification.

My hon. Friend the Member for Dover also mentioned the International Criminal Court and terrorist trials. Not only are there offences of universal jurisdiction—this was debated by my hon. Friends the Members for Penrith and The Border and for North East Somerset—but there are clearly offences, such as war crimes and genocide, that have universal jurisdiction and are of such seriousness that they can be tried anywhere. There have been trials in the UK for such offences, and indeed Parliament chose to extend the possibility for that in the Coroners and Justice Act 2009.

My hon. Friend the Member for Dover also raised a point of debate—one of continuing importance—on the balance between rights and responsibilities, arguing that the possession of rights must inevitably entail some responsibilities. The commission had points to make on that as well. It concluded that rights should not be made conditional on the exercise of responsibilities. It concluded that a Bill of Rights may allow the courts, when awarding damages, to take into account the conduct of the applicant, but my hon. Friend’s Bill would go further in incorporating the notion of responsibilities in determining whether a right has been breached. It concluded that any provision on responsibilities should only be declaratory.

I would like to deal with some of the points my hon. Friend the Member for Bury North made in his thoughtful speech. He said that the Brighton declaration had not been successful, but I must part company from him on that, because I think that the declaration is a substantial package of welcome reforms. Their implementation is being negotiated in Strasbourg. No changes have yet been made to the text of the convention, but once the reforms are realised we expect their net effect to be that more cases will be resolved at a national level and fewer will go to Strasbourg. The European Court will be able to focus on the more important cases, which is what it was originally set up to do, and, equally importantly, to do so more quickly.

I am conscious that in previous debates on the subject, particularly those relating to individual cases, and often those involving extradition, including from this country to the United States, Members on both sides of the House have expressed understandable frustration about the delays in the legal process. That is because British citizens have been kept in British jails for many years not because of delays in the British legal process—of course, there are also delays in that process—but specifically because of delays in the European Court. The measures that will follow the Brighton declaration, which I think will lead in the long run to cases appearing before the Court more rapidly and, therefore, more rapid decision making, will have a direct effect on individual human rights, because they will mean people spending less time in jail.

[Damian Green]

I am grateful for my hon. Friend’s clarification. I completely agree with him that the sooner implementation can happen, the better it will be not only for us but for individuals.

My hon. Friend also made the point about rule 39 applications about the stay of deportation, and the UK’s supposedly very high numbers in this regard. Under rule 39 of the Strasbourg Court, the Court may, on application, advise a stay of deportation, for example. This is about indications, not violations per se, and the Court has become stricter about granting such requests. As a result, fewer than one in 20 requests made for interim measures against the UK are now granted. In real numbers, that is only about 30 or 40 requests a year.

Various hon. Members have talked about prisoner voting. I think that everyone would recognise that the strength of feeling in this country is clear, and we have been clear in our view that it should be a matter for national Parliaments to decide. The Government are under a legal obligation to bring forward legislation. We have therefore published a draft Bill that presents a range of options, including banning prisoners sentenced to four years or more from voting, banning prisoners sentenced to more than six months from voting, and reaffirming the current ban on prisoners voting. We have asked a Committee of both Houses to examine the Bill. In the end—the point made most eloquently, as ever, by my hon. Friend the Member for North East Somerset—Parliament is sovereign and it will decide on whether to change the law, and the draft Bill is the first step in Parliament’s considering the issue.

[Charlie Elphicke]

I note that the draft orders for the Committee are on the Order Paper. Can the Minister tell the House how many proposed members of the Committee have legal training?

[Damian Green]

Off the top of my head, I do not know which of its members have legal training. As a matter of principle, however, I suspect that a Committee considering such legal matters would benefit from having a mix of legal experts and people who are not legal experts but are capable of asking simple but important questions. The interplay between legal expertise and the lack of legal expertise can often result in good and practical legislation. As a final thought on this, I should point out what my right hon. and learned Friend the Attorney-General has said, which is very clear:

“Parliament is sovereign in this area; nobody can impose a solution on Parliament”.

There was an exchange between my hon. Friend the Member for Bury North and the hon. Member for Hammersmith about indeterminate sentences for public protection. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced a new legal framework for dangerous offenders which has now been commenced and which replaces the IPP with a new extended determinate sentence. However, prisoners currently serving IPPs will not be released unless the Parole Board authorises it on the usual basis of risk assessment. It is important to set that out.

Having dealt with some of the points made by hon. Members, let me deal with the Bill itself. It is unusually serious and detailed for a private Member’s Bill, and it deserves a detailed and serious response. The Bill draws on the structures of and mechanisms in the Human Rights Act 1998 but makes important variations, deletions and additions.

Clause 2 deals with the interpretation of the new UK rights set out in schedule 1. Under the Bill’s new framework, clause 2 would replace section 2 of the Human Rights Act 1998, which deals with the interpretation of convention rights. Section 2 requires courts and tribunals, as I have said, to take into account rulings from Strasbourg when determining a question that has arisen in connection with a convention right. Clause 2(1)(a) to (c) lists a wider range of sources that the UK courts may take into account when determining a question that has arisen in connection with a UK right.

Further consideration needs to be given to whether the courts need to be conferred a discretion in legislation in order to take into account the sources listed in clause 2. Courts already cite judgments from other jurisdictions, such as Canada, when determining human rights issues. Paragraph (b) is unnecessary, because by repealing section 2(1) of the Human Rights Act, domestic courts would no longer be obliged to take into account Strasbourg jurisprudence.

Similarly, the Government are not certain that it is necessary to state in legislation that the ordinary rules of precedent continue to apply. Considering the obligations under section 2(1) of the Act, Lord Bingham held that courts should continue to follow binding precedent.

Section 6 of the Act makes it unlawful for public authorities in the UK to act in a manner that would breach a person’s convention rights and goes on to define what is a public authority for the purposes of the Act. Section 6 and the definition of public authority attracted a lot of comment and attention when the Commission on a Bill of Rights sought views on the existing legal framework. In the conclusions of its final report, the commission said of this important matter:

“The one area where we conclude that a case for change should certainly be considered is in respect of the definition of a ‘public authority’. In line with a majority of those respondents who expressed a view on this issue, we conclude that the growing prevalence of the outsourcing of once traditional publicly provided functions to private and third sector providers means that the current definition should be looked at again if a UK Bill of Rights were to be taken forward.”

Clause 7 of the Bill covers similar ground to section 6 of the Act, but it does not address the issue of definition directly. Instead, the clause’s focus, as described in the Bill’s explanatory report, is on ensuring that public authorities should not be penalised for applying legislation approved by Parliament.

[Charlie Elphicke]

I thank my right hon. Friend for giving way; he is being very generous in taking interventions. Does he recognise and accept that the majority of people in this country have lost confidence in the European Court of Human Rights and its judgment and that it should reassess its entire approach and look at striking a better balance in interpreting the convention rights?

[Damian Green]

My hon. Friend is right that many people in this country now have little confidence in the judgments of the Court. A separate issue has been raised by my hon. Friend the Member for North East Somerset about the legitimacy of the Court whether we agree with individual judgments or not. As I have said, the Brighton reforms introduced by the previous Lord Chancellor are designed to remove one source of irritation with the Court, namely its current backlog, delays and concentration on the types of cases that I do not think its founders intended it to concentrate on. The Court was set up to deal with big, international human rights issues and to drive forward human rights in countries with no history of Parliament, courts or the free press—all things that we in this country should not, but perhaps do, take for granted. I agree with my hon. Friend the Member for Dover that there is widespread feeling that the Court has gone off-track. That is precisely why the Government set up the commission and why the commission’s report is so interesting.

As my hon. Friend the Member for Cheltenham (Martin Horwood) made clear, there are no contradictions in the views of the two coalition parties on this matter. We simply disagree about how best to preserve and enhance human rights in this country. That disagreement will form part of the debate.

Clause 7 would introduce a new test, at least in terms of our existing human rights legislation, of whether an act of public authority could

“reasonably be regarded, in all the facts and circumstances of the case, as compatible”

with the new UK rights. The explanatory document on the Bill makes the point that that provision contrasts with the strict test under the Human Rights Act of whether an act is compatible with convention rights. The document goes on to explain that

“there are different precise interpretations of human rights, and if the public authorities are within the bounds of what a reasonable person could regard as satisfying the requirements of the UK rights, they should be allowed to get on with their job without being second-guessed by the courts”.

Deviating from the current supervisory approach of the courts would require significant further consideration before we legislated on this subject.

In a similar vein, article 20 of my hon. Friend’s Bill of Rights would ensure that nothing in certain articles of the rights

“shall be regarded as preventing restrictions on the political activity of aliens.”

Under that American usage, “aliens” means people who are not citizens, as was understood when the convention was drafted in 1950. However, that is not the current UK formulation and I suspect that we may wish to use different language if we proceed with the Bill.

One of the major issues raised by the Bill, and one that has been at the heart of our debate this morning, is our relationship with the convention. I understand that it is my hon. Friend’s intention that his proposals would sit alongside the UK’s obligations under the convention. Indeed, the Bill makes specific provisions in relation to the convention. However, it would be the effect of his Bill that the convention rights would no longer be directly effective in our domestic law. Our domestic courts would instead make their decisions under the new, adapted code of UK rights.

With that in mind, it would be helpful for the House better to understand the intention behind clause 9(4). If my hon. Friend’s intention is to sever the link with the convention, why does the Bill provide for our courts to continue to have regard to the scale of damages awarded by the Strasbourg Court?

[Charlie Elphicke]

I am happy to provide clarification on that. There is a history in our courts of granting damages that are entirely run-away. The one area in which most of us can agree with the European Court of Human Rights is in its more level-headed and sanguine awards of damages, because it is taxpayers who have to foot the bill. That is the one area where the jurisprudence of the European Court holds some water.

[Damian Green]

I am grateful to my hon. Friend for that clarification. He is right that the European Court might prove a better friend of the UK taxpayer than our courts in that regard.

That is not the only area in which it is possible to regard what comes out of the Strasbourg Court as more sensible than what emerges from our courts system. In my previous job as Minister for Immigration, I was struck that the Strasbourg Court had a more sensible test of what rights should apply when deciding whether someone should be removed from this country than was sometimes applied in our domestic courts. It may be unusual for a Minister to wish for European jurisprudence to take precedence over UK jurisprudence, but there were some cases in which I did so. My hon. Friend makes a good point about damages, but that is not a unique area in which the Court can be regarded as quite sensible.

It would be reasonable for the House to debate a number of other detailed technical issues, but I hope that over the past few minutes I have illustrated that, as one would expect, there would have to be significant scrutiny of large parts of this Bill were it to proceed further.

I wish to say a bit more about what will happen now because, as I have said, a twin-track approach is needed and we must know what will happen during the rest of this Parliament. As several hon. Members have said, the United Kingdom played a pivotal role in shaping the original human rights framework in which the rights were, literally, fundamental. Indeed, then hon. Members from across the House, including David Maxwell Fyfe and Hartley Shawcross, were architects of what was at the time a document that everyone in Britain was very proud of.

The convention was designed to address terrible abuses of human rights in a fractured continent. We have all read in history books about the state of post-war Europe, and it is important to put this debate into an historical context. Today we talk about European rows and problems, great though they are, but just 70 years ago—it is not ancient history—the continent was completely fractured. We now have a Europe in which we can argue about how human rights are best enforced, rather than a Europe in which we have to enforce basic human rights. The situation is immeasurably better now than it was, and that change has taken place during our lifetimes. We have come a long way from the time when the convention was absolutely necessary, but not everything has changed and our concern then—as now—was to give those who most needed protection from the excesses of state power a clear understanding of the rights and remedies available to them. That means that the human rights framework must be accessible and proportionate in its application.

The convention should be used to defend the most vulnerable, but because of the way some articles in the convention have been interpreted by the Court, people do not feel that that basic fairness is being applied any more. Indeed, the desire to ensure that the mechanisms in place to protect the most vulnerable exist for that reason and no other was at the heart of the programme of reform that turned into the Brighton declaration, just as it is at the heart of our calls now for further reform of the Court of Human Rights.

The Court is important for the protection of human rights from Iceland to Turkey, but as I have said it faces a huge backlog of nearly 130,000 applications. Some of those may include examples of the type of fundamental abuses that Maxwell Fyfe and others sought to remedy back in 1950 and in a very different world. However, if the Court is to retain its legitimacy—this point has rightly been raised in the debate—it must focus on its core functions. The UK helped draft the convention and there is no controversy about its values, which everyone still supports, even those most sceptical about the value of the Court. Many more people are extremely sceptical about the Court’s performance yet they nevertheless sign up to the basic values in the convention.

It cannot be repeated too often that the convention has contributed to important changes for the good in many countries across Europe; for example, the decriminalisation in many countries of homosexuality, or the recognition in former Soviet countries of religious freedom. Given our discussions today, and the frequent public discussions, about the necessity of protecting people’s capacity to express their religious views, it is worth remembering that in other countries the convention has been extremely helpful in allowing people to express their basic freedoms.

There are other examples. Legal systems and police behaviour have been improved by the convention in countries where the tradition of democracy and the rule of law is less than it is in ours. I hope we can all agree that the problem is not the convention itself, but how it is sometimes interpreted.

Our concerns about the Court bring us back to its fundamental role; it is supposed to focus on the most egregious violations of human rights throughout Europe. We might think that the UK would rarely, if ever, be found in breach, and I am happy to say that is the general situation. Last year, the Strasbourg Court ruled against the UK in only 10 instances. The underlying question we need to consider is whether those cases, and the apparent breaches, were of a magnitude that the founders of the convention would recognise. We have to ask ourselves what we expect of the Court today and how we can help to restore its legitimacy. Those are the questions we are dealing with now.

We would like the Court to have the following priorities, particularly after the Brighton declaration. First, it should not involve itself in cases that national courts have already decided properly. In this country, one would expect that to be so more often than not. Secondly, the Court should focus its resources on the most deserving cases; on the surface, a backlog of nearly 130,000 suggests that is not happening. Thirdly, the Court should not delve into our own legislation without very good reason. The margin of appreciation must be observed. Fourthly, judges adjudicating serious cases must be of the highest quality. Each of those priorities would involve a big programme of reform for the Court, but individually and collectively they are extremely important to ensure continuing support for the legitimacy of the Court. We may yet need deeper and more fundamental reform to preserve the role of the convention.

At the outset, I mentioned a Commission on the Bill of Rights, and I referred to its findings in relation to the provisions in my hon. Friend’s Bill. I remind the House of some of the commission’s key conclusions.

--- Later in debate ---

[Charlie Elphicke]

I thank those who have spoken today: my hon. Friends the Members for Penrith and The Border (Rory Stewart), for North East Somerset (Jacob Rees-Mogg), for Bury North (Mr Nuttall) and for Christchurch (Mr Chope), the Minister and the shadow Minister, the hon. Member for Hammersmith (Mr Slaughter). This has been a very useful, interesting and wide-ranging debate. I thank the Minister for his detailed remarks about the Bill, which I hope will help me to improve it if I present it again in the next Session.

May I make a short plea? When the members of the Committee that will consider the draft Bill on prisoner voting are being selected, can we ensure that at least some of them have legal training and that there is a wider reflection of the views of the House as a whole, so that all views are represented as well as possible? This is an important issue which has been very controversial for the House, and there are deep and passionate feelings about it. I thank the Minister for setting out his own views.

I particularly thank my hon. Friend the Member for Penrith and The Border for his interesting argument about the issues of morality and universality. The issue of morality was explored by Lord Justice Laws, a Court of Appeal judge, in a speech in November 2012 entitled “Do human rights make bad citizens?” Let me gently point out in response to my hon. Friend, who, sadly, is no longer in the Chamber, that Lord Justice Laws said this:

“the entrenchment of rights in the culture of the State carries with it a great danger. It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake.”

As for universality, Lord Hoffmann, a well-known leading Law Lord for many years, said in a 2009 speech entitled “The Universality of Human Rights” which he delivered shortly before his retirement:

“at the level of abstraction, human rights may be universal…At the level of application, however, the messy detail of concrete problems, the human rights which these abstractions have generated are national. Their application requires trade-offs and compromises, exercises of judgment which can be made only in the context of a given society and its legal system… If one accepts, as I have so far argued, that human rights are universal in abstraction but national in application, it is not easy to see how in principle an international court was going to perform this function of deciding individual cases, still less why the Strasbourg court was thought a suitable body to do so.”

Let me finally say in response to the hon. Member for Hammersmith that it is a great shame that Labour did not take the opportunity to reconsider its approach to human rights, and a great shame that he is more enthusiastic about the spending of taxpayers’ money on human rights claims than about funding for the White City estate and its important public services.

Having said that, Mr Deputy Speaker, I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

Bill withdrawn.