Human Rights Act 1998 (Repeal and Substitution) Bill

Debate between Charlie Elphicke and Christopher Chope

Friday 1st March 2013 Commons Chamber

[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.

--- Later in debate ---

[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.

Backbench Business Committee

Debate between Charlie Elphicke and Christopher Chope

Tuesday 12th June 2012 Commons Chamber

[Mr Chope]

Perhaps that is possible, and I am grateful to my hon. Friend for his intervention. The debate gives the Deputy Leader of the House the opportunity to confirm for the avoidance of doubt, as lawyers would say, that the commitment in the coalition agreement will be complied with, and when he gives that commitment perhaps he would also answer my hon. Friend’s question on whether there will be a House business committee and the Backbench Business Committee or just one covering both important subjects.

It would also be wrong if the Members present tonight did not pay tribute to the work of the Backbench Business Committee in the previous Session, which was a very long Session and the Committee’s inaugural one. Its members were effectively pioneers and I think that they served the interests of fellow Back Benchers with dedication and distinction. I would like to mention three Members in particular: my hon. Friends the Members for Wellingborough (Mr Bone), for Kettering (Mr Hollobone) and for Shipley (Philip Davies). They are not on the list of Members to be reappointed to the Committee, and I think that when hon. Members look back on its work over the previous Session they will realise what an enormous contribution those three hon. Members made.

In the previous Session the Backbench Business Committee ensured that Back-Bench debates, to a large extent, reflected the priorities of Back Benchers and our constituents, rather than those of the Government, which I think was a very refreshing change from our previous procedures. Notable highlights included the debates on prisoner voting and on the case for a referendum on our relationship with the European Union. It should be noted that both debates were on substantive motions on which the House was able to express a clear view. I think that the Government certainly found the expression of a view on prisoner voting helpful, although perhaps they did not find the expression of a view by 81 Conservative Back Benchers on an EU referendum quite so helpful. Nevertheless it was an opportunity for the Government to hear what Back Benchers thought on those subjects.

I would urge the new members of the Committee whom we will appoint tonight not to be intimidated by the Whips into always selecting for debate bland subjects that do not have substantive motions with teeth, because if we always did that, we would not be serving the best interests of Back Benchers and our constituents. I urge those Members to ensure that we have some substantive motions.

[Charlie Elphicke (Dover) (Con)]

One of the best things about the Backbench Business Committee is that it includes votable motions, and Back Benchers should be able to table motions and have them debated and voted on to ensure that if the Government or, indeed, the Opposition of the day are going off kilter the temperature and viewpoint of the House can be taken.

[Mr Chope]

I agree absolutely.

I raise this little subject because, immediately after the election and certainly on the Conservative side, one of those who was successful sent out a circular, saying that he would try to ensure that there were no motions on which we could vote on Thursdays. If the Government and the Whips decide that the only day to be allocated for Back-Bench business is going to be a Thursday, and Backbench Business Committee members throw in the towel early on and say, “We’re not going to have any substantive motions on which we can vote on Thursdays,” we will be in a rather sorry state of affairs, so I hope that those people who are on the Committee, and who may aspire to be on the House business committee in due course, realise that Back Benchers want some substantive motions. That does not mean every time—but quite often.

Finance Bill

Debate between Charlie Elphicke and Christopher Chope

Tuesday 28th June 2011 Commons Chamber

[Mr Chope]

In the same way as it was enforced before, as my hon. Friend the Member for Mole Valley says. As the insurance companies will be the beneficiaries, in a sense, because more business will be created for them, the provisions of the new clauses require those insurance companies, in effect, to participate in a regulatory regime supervised by the Treasury. That is the reasonable safeguard that we had before, and it would be a reasonable safeguard in the future. I am delighted if the hon. Gentleman’s only objection to the new clause is that whingeing technical objection, because that must mean that he is in favour of the substance of it.

[Charlie Elphicke (Dover) (Con)]

Perhaps my hon. Friend can help me. I am puzzled that Labour Members oppose the new clause as creeping privatisation, because when they were in office they privatised large sections of the NHS, with the independent sector treatment centre programme. I do not see how those two views sit together.

[Mr Chope]

As so often, my hon. Friend makes a telling point, which has got Opposition Members back on their haunches as a result of that good intervention.

Let us look at the total contribution made to health spending in this country by the private sector. The hon. Member for North Durham (Mr Jones) quoted from the Institute for Fiscal Studies report that came out in 2001. It said:

“Despite the increase in use of the private sector, private spending on health care makes up only 16.3 per cent of total health spending in the UK, which is lower than in any other G7 country.”

It goes on to describe how low health spending was as a percentage of gross domestic product. I concede, and am pleased, that since then health spending as a percentage of GDP has increased, but the percentage of private contributions to health care has not increased commensurately, as it should have done.

Big Society

Debate between Charlie Elphicke and Christopher Chope

Monday 28th February 2011 Commons Chamber

[Charlie Elphicke]

Exactly so—my hon. Friend makes a powerful point. I have said how the big society can be big, but it can also be big in many small ways. Small initiatives are an essential part of the big society. It is not simply about proposals such as the large, eye-catching port of Dover example, but about small things that are done on a day-to-day basis, whether that is the individual volunteering—dare I say it?—to help the elderly lady to cross the road in the example that is so often given, or the small tenants’ association that wants to run its estate, or public sector workers who want to set up a social co-op in the private sector. We should foster such changes by getting the state to back off a bit and by giving communities, individuals and small and big groups room to breathe, and a greater say in, and a greater sense of, their future direction.

[Mr Christopher Chope (Christchurch) (Con)]

My hon. Friend makes a powerful case for a change in the regime of the port of Dover, which seems to accord with the Government’s vision of the big society. Do the Government support his vision for the port of Dover?

[Charlie Elphicke]

I am unable to confirm that, because as my hon. Friend knows, that is subject to a quasi-judicial process. Even if the Government are supportive, they would be unable to say so, lest they attract a judicial review. Nevertheless, I hope the Government review the criteria of the bidding and privatisation process to enable a community bid to go through, and indeed that they will price in social and community enterprise value in privatisations or movements out of the public sector and into the private sector. In that way, communities will have a fair and a good chance to take over assets that are important to them and that matter to them.

I hope the Government produce revised proposals and that they give firm consideration to making that change. In doing so, they will send a strong signal that communities and decentralisation matter, that we want to give the balance of confidence to communities and that we want those economic benefits. Our proposal would give Dover a massive confidence lift and help to drive our local economy.

Regions throughout the UK need more confidence and to be more able to grow, prosper and do well, so that we can heal the divide between London, where all the prosperity seems to be, and the regions, which are left out. The regions will then have much more economic vitality and energy, which will make a massive difference in the future of the big society.