Human Rights Act 1998 (Repeal and Substitution) Bill

David Mowat Excerpts

Friday 1st March 2013 Commons Chamber

[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.

[David Mowat (Warrington South) (Con)]

My hon. Friend is giving an eloquent defence but the logic of his position seems to be that we should not have a European convention on human rights or a Court, but rather a world convention. Is that his position?

[Rory Stewart]

That is a telling intervention. The answer is that we have signed and ought to respect and uphold the United Nations universal declaration of human rights. It exists; we are signatories to it.

--- Later in debate ---

[Rory Stewart]

That is a fundamental principle, and my hon. Friend is correct to raise it. In the international system, we have an important conception of state sovereignty. The only argument being made today is that state sovereignty is not absolute; it does not trump everything else, but to return to the language that my hon. Friend the Member for North East Somerset does not like, up to a certain threshold, state sovereignty obtains. Up to a certain point, there must be the opportunity to attempt to resolve the situation domestically, but at that point, when the state concerned has failed to deal with crimes against humanity, it is not only legal under the international system but morally correct for an international court to overrule the national Government.

[David Mowat]

May I press my hon. Friend further on his position on a world court of human rights? The logic of his position seems to be that the scope of the European court should be extended as far as possible, given that these things are absolute and not relative, as he says.

[Rory Stewart]

That is a very interesting and important question. The answer of course is that when David Maxwell Fyfe, of whom Conservatives should be proud, and Hartley Shawcross, of whom the Opposition are equally proud, brought the convention together, the objective was to spread it as widely as possible. Indeed, for more than 60 years the British Government have had as their policy an attempt to push it as far as possible, which is why the European convention now extends a long way beyond the boundaries of the European Union and takes in countries such as Russia. That is because we believe that the ingredients of the European convention on human rights are basic, inviolable and universal dignities. If anybody wishes to sign up to the European convention, we absolutely encourage them to do so. Any country that wishes to join, to sign up to the declarations and to be held to the high and exacting standards contained in that document, should be welcomed, but if the Court is to survive at all it needs to narrow its focus drastically; that is where my hon. Friend the Member for Dover is absolutely correct.

If the Court is to have any credibility or legitimacy in the long run, it cannot continue contributing to a situation where the British public end up feeling that human rights are trivial, that human rights are an excuse, that human rights are a charter for triviality, that human rights have the same relationship to real rights as “Health and Safety” does to real health and safety—in other words, that it is a factory for lawyers and insurance claims. To return to its fundamental principles, the Court needs to remember what it is there to do, and it is on that point that I really will conclude.

The European convention on human rights is not something that we as a party should set aside by suggesting that human rights do not exist. Human rights do exist, and all of us are proud to live in a society where our rights have been protected in different forms since Magna Carta. We did not use the words human rights until the French began to popularise them in the late 18th century; until then it was a specialist phrase that nobody in this country would have used. Indeed, it was not until after the second world war that anyone in this country started using the words human rights, but we have had the basic notion of the rights of man for 800 years. It is that the human is dignified and inviolable; certain things may not be done to that individual; anyone anywhere who is treated in that fashion is wronged; their possession of that right is not relative to the costs or benefits of upholding it in any particular case.

The European convention, drafted by us, enshrines those notions of basic decency—of equality of humanity and of inviolability. The problem with it is not the sovereignty of Parliament. The problem is not that rights do not exist. The problem is not that it is politically too complicated. The problem is that we have allowed the Court to stray from its fundamental job. It was given a very narrow task and a very narrow focus, which, broadly speaking, was to deal with crimes against humanity. We should therefore join my hon. Friend the Member for Dover in strongly demanding that the case load of the European Court is radically reduced, that the principles of subsidiarity are radically increased and that the Court ceases to get involved in situations that in principle, ethics or law, it is not competent to handle.