European Convention on Human Rights

Dominic Raab Excerpts

Monday 9th May 2016 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

I congratulate my hon. Friend the Member for Christchurch (Mr Chope) on securing tonight’s debate and pay tribute to his recent work as chair of the UK delegation to the Parliamentary Assembly of the Council of Europe. He is very knowledgeable in this field and he made a very powerful speech.

For all the contentious debate about human rights, few argue against the common-sense list of rights set out in the text of the European convention on human rights. The Government are and will remain committed to the protection of those rights. The United Kingdom was a founder member of the convention and was instrumental in its drafting. I have said on a number of occasions that those who suggest it was somehow an exclusively British creation are overegging the pudding or rewriting history. The negotiation of the convention saw an interesting contest of views between the common law and civil law traditions, as evidenced clearly in the travaux préparatoires of the convention, which are available online. The convention—the product of those negotiations —reflects the compromise between those two very different traditions and approaches.

Nevertheless, the concerns that have arisen about the convention are far less about being objections to the strict list of rights set out there; they lie more with its interpretation and application, which has been expanded and extended exponentially, well beyond what the original drafters intended. That is partly the result of judicial legislation by the Strasbourg Court, but it has been compounded by the design and structure of the Human Rights Act. It should be pointed out at this stage that serious criticisms have come from Labour Lord Chancellors, lawyers across the spectrum and senior British judges, as well as from Government Members. These problems have fuelled a rights inflation that has undermined this country’s liberal tradition of freedom and its approach to human rights, which is founded in Magna Carta and in the thinking of great British philosophers from John Locke and John Stuart Mill through to Isaiah Berlin. We have shifted towards imposing more and more obligations on government that require it to provide, rather than merely insisting that it refrain from acting in certain arbitrary ways, which was very much the history and tradition of the liberal approach. These developments have exposed us unnecessarily to judicial legislation at home and in Strasbourg that takes decisions out of the hands of this House.

[Sir Edward Leigh]

The Minister is making a powerful critique of the convention, so perhaps he can now tell the House when we are going to fulfil our manifesto commitment to get out of it.

--- Later in debate ---

[Mr Raab]

I will come on to the manifesto commitment and resolve to deliver on it shortly.

I want to make this point very clearly: there are legitimate different views as to what we should include in a list of fundamental human rights. There are liberal models, Marxist models and a social democratic tradition, which informs an approach to human rights. There is even a shift from individual rights to collective ones, including environmental rights. We can take different views on that, and hon. Members will, but whatever our view, if we are a democrat, the legislation and the definition of that list of rights must be made by elected representatives who are accountable to the British people. That is the objection to a rights inflation through judicial legislation—whether it takes place at home or abroad. It corrodes the most basic principles of democracy, and that was a point that my hon. Friend made very clearly and powerfully.

[Lady Hermon (North Down) (Ind)]

I am very grateful indeed to the Minister for allowing me to intervene at this late hour. The Minister will know when he reads through the Belfast agreement signed on Good Friday—I am sure that he has studied it at length—that the European convention on human rights is an integral part of that agreement and that that agreement was voted on in a referendum in Northern Ireland and also in the Republic of Ireland and thousands and thousands of people supported that agreement. Where does the Minister think it would leave the peace settlement in Northern Ireland if this country were to withdraw—and I hope that it does not—from the European convention on human rights?

[Mr Raab]

I will come on to address that point very squarely in a moment. I hope to be able to give the hon. Lady the reassurance that she needs.

I will, if I may, return to some of the problems of the democratic deficit that have been created. One example that has been mentioned by Members on a number of occasions is the creeping extra-territorial extension of the convention. The negotiating record of the European convention—the travaux préparatoires—is very clear on that point. No one intended that those making military decisions on the battlefields of Iraq and Afghanistan should or would be subject to the convention. That area was rightly left for the law of armed conflict, including international humanitarian law.

Another example, to which my hon. Friend referred, is the situation whereby increasingly elastic interpretations of article 8 rights to family life override the very clear public interest in deporting serious foreign criminals. The Government are clear that where there is a real risk of torture to an individual, they should not be deported, but the right to family life is an inherently qualified one and must be balanced against the rights of others. That balance, which should properly rest with Parliament, has been tipped out of kilter too much and by too great a degree by the courts. This is not to attack the ECHR. In truth, those making that point are being faithful to the convention, because paragraph 2 of article 8 makes it crystal clear that Governments should be able to qualify the right to family life to take effective law enforcement measures. In this regard, it is the judicial branch, which is, through creative extrapolation—that is the most generous gloss that can be put on it—departing from the convention. Those are two illustrations. There could be many more, but we have limited time this evening.

There are two strong reasons why this Government will reform the UK’s human rights framework, and with it, our relationship with the Strasbourg Court. The Government were elected with a clear mandate to deliver that reform, and I can confirm to my hon. Friends that we remain absolutely resolute about delivering on that pledge.

Our proposals will remain faithful to the principles in the European convention—I hope that the hon. Lady will be reassured on that point. Our focus will be on restraining and restricting the expansion of rights by the Strasbourg Court and the Human Rights Act, without proper democratic oversight.

[Lady Hermon]

rose—

[Mr Raab]

If the hon. Lady will give me more of an opportunity to address her concern.

As the 2015 Conservative party manifesto pledged, the Government will repeal the Human Rights Act and replace it with a British Bill of Rights. Our aim is to protect fundamental rights, prevent the abuse of human rights law and restore some common sense to the system.

My hon. Friend asked for clarification—the hon. Lady did as well—on the Government’s position on the European convention. Let me repeat what I and the Justice Secretary made clear at oral questions towards the end of last month. Although we cannot rule out withdrawal from the convention forever, that is not part of the proposals that we are finalising for consultation. We aim to achieve reforms while remaining members of the European convention. Our proposals will help restore a more balanced separation of powers between the proper role of the courts and greater respect for the Supreme Court in this country, and also the proper role of the Legislature and of Parliament.

[Lady Hermon]

I am extremely grateful to the Minister for giving way. Two points require clarification. The Minister appears to have completely contradicted the line taken by the Home Secretary, for whom I have enormous regard. She clearly stated in this House that it was her wish that we would withdraw from the convention. The Minister can confirm this evening that that is not Government policy—that there is no intention of this country withdrawing from the European convention on human rights. As for a British Bill of Rights, would that extend to Northern Ireland, or does Northern Ireland have to come up with its own formulation?

[Mr Raab]

On the position on the convention, I think the hon. Lady will find that the Home Secretary’s remarks were made not in this House, but elsewhere. The Home Secretary is, of course, entitled to her view; there is a degree of licence and latitude in the current debate on the EU. What I have explained clearly to the hon. Lady is the Government’s position on the ECHR. On the application to the devolved Administrations—I understand the hon. Lady’s particular concerns relating to Northern Ireland—obviously we will consult fully, including with the devolved Administrations. We are mindful of the interrelationship of the convention with, and its effects on, the Belfast agreement, which she mentioned.

Critically, our reform agenda is not about eroding people’s fundamental rights. The United Kingdom has a proud tradition of respect for human rights that goes back long before the Human Rights Act 1998, and long before the European convention. Our history of protecting human rights at home and fighting for them abroad stretches back over 800 years to Magna Carta, and even before that, in truth.

We will take no lectures from the Labour party on this front. It was the last Labour Government who introduced identity cards and proposed 90 days’ detention without charge.

[Fiona Mactaggart (Slough) (Lab)]

How is that relevant?

[Mr Raab]

In stark contrast, the last Conservative-led Government scrapped identity cards and cut pre-charge detention. The reason why it is relevant, as the right hon. Lady should know, is that actions speak louder than words.

[Fiona Mactaggart]

rose—

[Mr Raab]

I will not give way, because the time I have left is so limited. This Government also brought forward the Modern Slavery Act 2015. We have transformed the fight against sexual violence in conflict, persuading more than 150 states to agree for the first time that sexual violence should be recognised as a grave breach of the Geneva conventions. This is a record that we can be proud of, and are committed to building on. Our commitment will not falter or fail, but we need to restore some credibility to human rights, which many people in this country increasingly view as dirty words—an industry or bandwagon for lawyers, rather than a tradition to take pride in. We can do that by restoring common sense to the system. We are confident that we can deliver our common-sense reforms within the bounds and parameters of the European convention.

We have already sought and listened to views from practitioners, non-governmental organisations, academics and politicians right across the entire United Kingdom. We know there has been consistently strong public support for these measures. We will consult fully on our forthcoming proposals before introducing legislation, and I know that my hon. Friend the Member for Christchurch will, as ever, bring to bear his considerable expertise and experience at the Parliamentary Assembly of the Council of Europe as we proceed with the Bill in the House.

[Mr Chope]

Does my hon. Friend agree that we will be much more able to implement his agenda if we leave the European Union?

[Mr Raab]

The relationship between the convention and the EU is complicated; we risk shedding more heat than light on the subject by conflating the two. It is certainly true to say that if we pulled out of the convention altogether, it would be something of an open invitation to the Luxembourg Court to fill the vacuum.

Question put and agreed to.