Human Rights Act 1998 (Repeal and Substitution) Bill

Christopher Chope Excerpts

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.

--- Later in debate ---

[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.

[Mr Chope]

Would my hon. Friend comment on the conspicuous absence of Liberal Democrat participation in this debate? It is the Liberal Democrats who, in effect, prevented the Conservative party manifesto commitment on this being implemented.

--- Later in debate ---

[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.

[Mr Chope]

Is not one of the most critical issues the way in which the Court interpreted the amendment through the protocol, which was contrary to the rules of interpretation of the Vienna convention? If we had stuck to those strict rules, we would not have got into the difficulty we are in at the moment.

[Mr Nuttall]

I bow to my hon. Friend’s greater knowledge of these matters, and I am sure that he is absolutely right. We have allowed ourselves to stray from the original meaning of the article.

I will not detain the House for much longer on the prisoner voting case, but it strikes at the heart of the issue. The Court is, in effect, saying that this House cannot decide for itself what to do and who it can allow to vote in our elections, and that somehow people such as Hirst, a convicted axe killer, should be allowed to vote and decide who has the right to sit in this Chamber. Most of my constituents would say, without hesitation or doubt, that that cannot be right, and it is because of such cases that it is right for us to consider the Bill promoted by my hon. Friend the Member for Dover.

One problem with the European Court of Human Rights is that 47 nations—it is not the same as the European Union, which has 27 members, shortly to be 28—have signed up to the European convention on human rights. With a population of some 800 million, any one of whom can choose to bring a case at any time, it is unsurprising that an avalanche of cases has been brought before the Court. The evidence of the Court’s statistics calls into question how genuine some of those cases are. I looked briefly at the Court’s website, which lists what it calls “rule 39 requests” granted in the past five years for all 47 countries. That gives us an idea of how many countries out of the 47 did not have any cases against them at all. One would have thought that, if the convention were really dealing with serious breaches of human rights, the odd case might be brought before the Court from somewhere in Europe, bearing in mind that all the countries concerned are democracies that operate under the rule of law. One might expect the odd case, here or there, to be brought before the Court.

In fact, only Andorra and Montenegro had zeros beside their name on that list. At the other end of the scale, the United Kingdom soared up to the top with 5,176 cases. Using that yardstick, one would assume that we had a worse human rights record than any other country, but that makes no logical sense. I believe that those figures are, in fact, attributable to the assiduity of our human rights lawyers in bringing cases to the attention of our courts and then taking them to appeal in Europe, particularly since the passage of the 1998 Act, rather than to any failing on the part of our Government or, to be fair, the last Labour Government. Yet anyone glancing casually at those figures might assume that those Governments had been going around inflicting atrocities on people.

Mention was made earlier of the Brighton declaration, and I believe that the Government have done good work in that regard. It was entirely right that we should use our presidency of the Council to try to bring some common sense to the system and to reform the way in which the Court operates, but I am not sure that that endeavour has met with a great deal of success. I looked at the latest figures available, which represent a snapshot taken on 31 January this year. That makes them quite up to date in terms of Government and international statistics. They showed a total of 126, 850 outstanding applications to the Court, including 3,250 from the United Kingdom. We were not top of that particular chart; other countries had far higher numbers than us. Russia, for example, had 27,450 pending cases. This demonstrates the fact that, with 800 million people entitled to bring their cases before the Court, there is a huge backlog.

One advantage of my hon. Friend’s Bill for the British people is that, by effectively repatriating these powers back to the United Kingdom, it will make things far easier for anyone with a genuine grievance, and who genuinely feels that their human rights have been infringed, because their case will be dealt with entirely within this country.

My hon. Friend the Member for Dover has done a wonderful job. Much more could be said on this issue, and I fear that the time available today does not enable us to do it proper justice in many respects. I would have liked to deal with how we could withdraw from the European Court and the European convention and to explain why I believe that even if my hon. Friend’s Bill, which has much to commend it, were to become law, all we would be doing—unless we withdraw from the convention, as my hon. Friend the Member for Shipley said in an intervention some time ago—is creating another hurdle. As long as we are signed up and as long as people have the ability to go to Strasbourg, we will not solve the problem. Equally, as long as we are members of the European Union and as long as it has the desire to sign up to the European convention of human rights and to build on what it calls fundamental rights under the European Union Agency for Fundamental Rights, which we briefly discussed here a few days ago—and make no bones about it, this is where the leadership of the EU would like to go—we will not, frankly, solve this problem.

Let me finish with two points. First, in yesterday’s by-election, the majority of votes were cast, if not for parties, for candidates who believe as I do that we would be better off out of the European Union. Part of the reasoning is that we would free ourselves from the risk of being tied in to the European convention on human rights by the back door that would result from our membership of the EU. Finally, one problem with having this debate today is that it is the final Friday for private Members’ business in this Session. I only wish that this Bill had been able to be considered on the first and not the last Friday, so that it would genuinely have stood a chance of having further consideration in Committee—a Committee on which I would happily have served. I thank my hon. Friend the Member for Dover for bringing the Bill forward and look forward to hearing the remaining contributions to the debate.

--- Later in debate ---

[Mr Christopher Chope (Christchurch) (Con)]

I welcome this opportunity to make a short contribution to the debate, not least because I have the privilege of being chairman of the Committee on Legal Affairs and Human Rights of the Council of Europe. We deal on a regular basis with the subject that has been debated today. I have also recently been appointed as the rapporteur with responsibility for drawing up an opinion from the parliamentary assembly on proposed protocol 15 to the convention on human rights.

I should like to begin by commenting on the Minister’s typically generous and reasonable speech. He talked about the universality of human rights, and about how we must concentrate on defending the most vulnerable people in our society. In relation to the Commission on a Bill of Rights, he argued that the time was not now right for this measure. However, I do not see any great distinction between the views being expressed in Scotland and those in the rest of the United Kingdom on this issue.

Bearing in mind what the Government are doing on prisoner voting eligibility, there is a strong case to be made—especially in the light of the Bill, into which my hon. Friend the Member for Dover (Charlie Elphicke) has put so much work—for saying that the Government should introduce a draft Bill, perhaps along the lines of the proposals for prisoner voting, in which the different alternatives put forward in the commission’s report could be set out. It could then be submitted, in the form of proper legislation, to scrutiny by a Joint Committee of both Houses. We would then be able to make some progress.

One of the messages from yesterday’s by-election result is that there is an enormous amount of public cynicism about the lack of progress on issues such as these. The public are concerned about abuses of human rights legislation and the perverse judgments being implemented, and they want the House to take action in those areas and others.

[Martin Horwood]

Will the hon. Gentleman give way?

[Mr Chope]

I will indeed. I wonder why the hon. Gentleman is wearing a lapel badge. Anybody would think he had something to celebrate, but I do not think he has, really.

[Martin Horwood]

As the hon. Gentleman has mentioned the by-election—and my “I like Mike” lapel badge—will he allow me the privilege of being the first Member to congratulate Mike Thornton on his imminent admission to the House as the new Member of Parliament for Eastleigh? Perhaps the hon. Gentleman would like to reflect on whether the historic victory of the Liberal Democrats in Eastleigh—we are the first party in government in at least 30 years to defend successfully a marginal seat in a by-election—can be attributed to the fact that we have not displayed the same kind of ideological disunity over issues such as human rights and international development that he is demonstrating right now from the Conservative Benches.

[Mr Chope]

To reinforce the point I was making, the complacency that flows through every word that the hon. Gentleman has uttered will be seen as anathema to the majority of people who voted in the by-election in favour of Eurosceptic parties who want a completely fresh look at our relationship with the European Union.

[Damian Green]

rose—

[Mr Chope]

I give way to my right hon. Friend the Minister.

[Damian Green]

rose—

--- Later in debate ---

[Mr Deputy Speaker]

I call Mr Chope.

[Mr Chope]

I am obviously happy to congratulate anybody who has been elected to this House, and I hope in due course to have an opportunity to meet the new Member representing Eastleigh. That does not mean, however, that we should ignore the importance of the issue before us today, and I suspect that a majority of the people who went out to vote yesterday would have been in favour of the Bill on the grounds that something has to be done about abuses of human rights legislation and the Court’s perverse judgments.

The Brighton declaration is being carried forward by means of draft protocol 15 to the European convention on human rights. From my perspective, one of the most important parts of that draft protocol will be its amendment to the convention’s preamble, emphasising the importance of having a system that introduces proportionality as well as subsidiarity into the Court’s decisions. But if I look at the opinion of the European Court of Human Rights on draft protocol 15, I detect a lack of enthusiasm for the part of the protocol that will mean changing the wording of the preamble. I hope I am not being unduly sceptical in wondering how keen the Court is on the principle of emphasising the subsidiarity and the doctrine of the margin of appreciation, as reflected in the outcome of the Brighton conference.

In that context, some people believe—I have heard judges of the Court themselves expressing this opinion—that it does not make a ha’porth of difference what is in the preamble, as it is only the actual text of the treaty that makes a difference. That reminds me of the importance of how these treaties are interpreted. One problem at the moment is that the treaties are being interpreted by the Court in a way that is out of tune with the specific wording in the Vienna convention, which says that there should be a strict interpretation of treaties rather than allowing them to be interpreted in an expansive way over time.

The way to change the wording of a treaty, as is now being proposed, is to introduce a protocol to that treaty. The way to introduce a requirement that there should be prisoner voting would be to amend article 3 of protocol 1 rather than to try to do it by the back door by using judicial legislation—effectively what the Court has been doing. This is where the great frustration arises among the public when they see human rights that they all believe in—the right to life, the right not to be tortured and so forth—losing direction under the Court. The universality of human rights is important, as reflected in the debate between two Old Etonian Members earlier. We should be talking about the universal declaration of human rights, rather than trying to use the European convention and the EU legislation that incorporates it as a means of trying to impose on individual sovereign Governments and Parliaments a set of rules that do not accord with the culture of those individual countries.

Let me end by reiterating my thanks and congratulations to my hon. Friend the Member for Dover. Unlike many Members who present private Members’ Bills, he put a great deal of personal effort into the drafting of his Bill. Presenting legislation, especially private Members’ legislation, is an iterative process, and I hope that in the next Session of Parliament, either my hon. Friend or a colleague who is successful in the ballot will present the Bill again—perhaps taking into account some of the points made by the Minister—so that by the time of the next general election, Conservative Members are clear about where we want to go and what legislative change we want to make. We shall then be able to respond to public concern, rather than saying that it is far too early to do anything and giving every reason under the sun for not being able to make up our minds. My hon. Friend has done a great service to the House and the country in concentrating minds on this important issue.