Human Rights Act 1998 (Repeal and Substitution) Bill

David Nuttall Excerpts

Friday 1st March 2013 Commons Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

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

It is a great pleasure to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who, along with my hon. Friend the Member for Penrith and The Border (Rory Stewart), has treated the House to an excellent discussion, full of the moral and philosophical complexities of the field of human rights. This is an enormously complex area. I feel loth to dive into it having heard the debate that has gone on for the past hour and a half, but I want to try to bring the debate back to the Bill and how my constituents look at this field of human rights.

[Rebecca Harris]

We have heard a superb debate on the moral and philosophical merits of human rights. We seem to have lost our way slightly on looking at the real problem we are facing in this country, which is a disconnect between what our judges are decreeing in our law courts as a result of the Human Rights Act and what the public understand to be common sense. The Bill addresses that issue, and we may have slightly veered away from looking at it directly.

[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.

[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]

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 Andy Slaughter (Hammersmith) (Lab)]

I will address the hon. Gentleman’s request for the Opposition’s views on the issue under discussion, but IPPs are being abolished, which Opposition Members think is something of a shame. The issues of public protection that the hon. Gentleman mentions, and the balance between the offender and the victim, are being changed not for better but for worse.

[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.

[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 ---

[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.

[Mr Nuttall]

I must have inadvertently misled my right hon. Friend and wish to clarify my views on the Brighton declaration. I think, for the reasons he has just set out, that it is a step in the right direction. All I had intended to do was show that the most recent statistics bear out the need for what was agreed as part of the declaration to be brought into force as a matter of urgency.

[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.