Home Affairs and Justice

Debate between Edward Leigh and Lord Lilley

Thursday 28th May 2015 Commons Chamber

[Mr Peter Lilley (Hitchin and Harpenden) (Con)]

Thank you, Mr Speaker, for asking me to complete this debate. I shall endeavour to do so—that is, up until the very important closing speeches.

I apologise for being unable to be here for the opening speeches or for all the maiden speeches, though all those I heard were of an extraordinarily high quality, not least the one we just heard from the hon. Member for Bootle (Peter Dowd) and the one that preceded it from the hon. Member for Edinburgh East (Tommy Sheppard), who made a speech that was absolutely in the traditions of this House. He is very welcome as a Member of this House if the contributions that he is to make, and his colleagues are to make, are of that calibre and quality. He should know that many people in this House claim Scots ancestry. My second name is Bruce, and I have always been proud to believe that somewhere in my bloodstream there is Scottish blood. There is great sympathy and fellow feeling with the people of Scotland. That is one reason why those of us who are Unionists want to retain Scotland as part of the greater unity of the United Kingdom. However, that is an issue that we can discuss, and if it is done in the manner that it has been today, it will raise the level of debate very considerably.

I want to address the repeal and replacement of the Human Rights Act. I am a passionate defender of our civil liberties. In Cabinet, I defended, sometimes almost single-handedly, the right to trial by jury against attempts to limit and restrict it. Likewise, I fought against compulsory ID cards, often in alliance with my now dear departed friends in the Liberal Democrat party. I supported a free press against the Leveson attempt to introduce state control of our free media. I have advocated legalising cannabis.

However, belief in human rights and civil liberties is not the same as belief in the Human Rights Act or the European declaration of human rights. They are not identical, although of course there was a deliberate political attempt to claim ownership of human rights by enshrining the European declaration of human rights in law in our Human Rights Act.

We all in this House support human rights. We did so before the Human Rights Act, we do so now that we have a Human Rights Act and we will continue to support human rights if the Human Rights Act is repealed. There is no controversy in practice about the core of each right. There is no controversy about the fact that Governments should not be entitled, willy-nilly and at whim, to deprive us of our liberty. There is no conflict or debate about whether Governments have the right to deprive us of our life if we are innocent and are not committing any acts or doing anything that requires self-defence.

The issue at dispute is: where rights conflict, who or what institution should decide the balance between those rights, and who should set the outer boundaries or the lower limits of triviality where rights apply? No right is absolute and unlimited. There is a right to freedom of speech, but there is no right to libel or slander, to spread hatred or stir up breaches of the peace, or to invade another person’s privacy. We have the right to life, but we do not prosecute soldiers who, legitimately and under orders, take lives in war. We do not allow the courts to decide whether the woman should make the decision over the right to life of an unborn child, or to decide that such a right to life should be deemed absolute, as is likewise the case with suicide and euthanasia. There are boundaries to every right, and the balances between rights have to be resolved.

Balancing conflicting rights, as well as setting boundaries and limits to their triviality, is intrinsically a policy or political matter. In the last resort, that is why such issues have been decided by the political process in Parliament, not by the legal process in the courts. Where the boundaries of conflicting rights have not been drawn by statute, the courts do their best to interpret the law to create law, in the way they have learned to do in the common law process in this country, to fill in the gaps left by Parliament. Ultimately, however, Parliament has always been able to redraw the boundaries if it so wished to establish a statutory right or a limit to a right.

That is the process, with Parliament supreme over the courts, under which human rights have developed in this country from Magna Carta onwards. That charter was laid down not by judges but by barons. It is paradoxical that so many advocates of human rights—or self-declared owners of belief in human rights—now assert that the parliamentary supremacy under which those human rights evolved is a threat to human rights, and therefore argue that Parliament must be subordinated to the courts. But if judges are given the intrinsically political role of deciding on the balance between conflicting rights and the outer boundaries of rights, we will inevitably and ineluctably politicise the judiciary.

Such a politicisation has happened in the United States, where the Supreme Court is the supreme court—the supreme arbiter of the rights laid down in the constitution. As a consequence, the appointment of judges is highly political—it is one of the most highly political decisions any President takes—and the political, cultural and social views of candidates, not their legal abilities, are paramount in the choice of candidates for the Supreme Court in America and their ratification through the political process. Indeed, Presidents try to embed their views for long after they and their elected term of office come to an end by appointing to the Supreme Court the youngest, fittest and most intransigent fellow believers, in the hope that they will continue to enforce their views when the President is long gone. Of course, even local judges can be elected in the States. Do we seriously want to go down that route in this country—the route of politicising the appointment of our judiciary?

The second consequence of giving judge-made law supremacy over Parliament-made law is that we take away the most important right of all of the British people: the right to hold their lawmakers accountable. The voters can turf out MPs if they do not like the way we interpret their rights, or if they believe we have infringed them in any way. We are accountable to the electorate, but judges are not accountable. In my view, they should not be politically accountable—they should not be removed or appointed as a result of the political process—but if they are given a political role and remain unaccountable, that lack of accountability will undermine respect for the law, as it is already doing.

I very much hope that we will repeal the Human Rights Act and restore a proper balance between Parliament and the courts, but we should not just replace the Human Rights Act with a British Bill of Rights that gives judges supremacy over Parliament—that would merely recreate in the domestic forum the problems we have created internationally. However, there is the issue of the European declaration and the European Court of Human Rights. When I was in the Cabinet, the renewal of our membership of that declaration, or our adherence to it, came up. I proposed that we resile from it at that point. It so happened that the Foreign Office had just made Croatia’s adherence to the convention a condition of our recognition of it. It was felt that it would look odd if, having made that a condition, we resiled from the convention. I was quite happy to overcome that little problem, but that was why my advice was not taken.

Many appeal to the origins of the European convention on human rights and to chauvinistic sentiment. They say that the convention is ultimately British and that it was written by a British Attorney General and other British lawyers; that it simply codified British human rights that had evolved over centuries, including the right to jury trial and so on; and that there was therefore absolutely nothing to worry about. Of course, those who codified and enshrined the convention did not realise that they were changing the process by which law was made. Instead of being made ultimately by Parliament, it was ultimately made by courts, often of a political composition but unaccountable to any electorate. Although it was inevitable and foreseeable, they did not anticipate that the courts, once they had been given the right to interpret a rather abstract document, would do so in an extensive and continually elaborated way.

The result is that judges have reached the sorts of decisions that would never have been reached had we not signed up to the European Court of Human Rights and the European declaration of rights, and had we not enshrined it in our law. There have been judgments on relatively trivial issues, such as on whether prisoners should have the vote. I can see quite a good case for giving prisoners the vote—it would force hon. Members to go and campaign in prisons to win those votes, and we would learn more about prisons than most of us have done. I have only ever learned about prison when my friends have been put in it and I have had to go and visit—no names, no pack drill.

Whether or not prisoners are given the vote is essentially a political decision. It is not something that judges automatically know best. Underlying the belief in making judges supreme over Parliament is a belief that judges have an innate ability that others do not have to discern what is right and true, or the belief that the document that judges interpret is a revealed document, a bit like the Koran being interpreted by an ayatollah. It is not, of course. It is a rough summary of what had evolved in this part of the world, and leaving people to interpret it as they will gives them great and unaccountable power that they should not have.

[Sir Edward Leigh (Gainsborough) (Con)]

My right hon. Friend is making a most thoughtful speech. It is worth articulating the exact legal and constitutional position. We signed the convention in the early 1950s, and the Human Rights Act was not passed until the late 1990s. If this Parliament were to repeal the Human Rights Act, it would be entirely our choice as to whether we stayed in the Council of Europe and remained wedded to the convention. We would not be expelled.

[Mr Lilley]

I am sure that my hon. Friend is right, although I am not sure that it would matter terribly if we were expelled from the Council of Europe. We might just as well belong to it, and I am sure that we could continue to belong to it even if we did repeal the Human Rights Act and no longer accepted the supremacy of the European Court of Human Rights.

The essential issue is whether political decisions should be taken by politicians and judicial decisions by judges. Those who believe that the Human Rights Act should remain on our statute book ultimately want judges to take political decisions, leaving us deprived of that right and the electorate deprived of any ability to hold those who make those laws accountable—or to throw them out if they make decisions the electorate do not like. It is very important that we recognise that that is the issue, not whether we believe in human rights. We all believe in human rights, but we need to decide how the balance between rights is to be determined and how the full extent of any right is to be limited. If that is the question, I am sure that the whole House will agree with the measures that the Secretary of State will develop after consultation and, in due course, bring before the House. I welcome every measure in the Queen’s Speech, but above all the prospect of the repeal of the Human Rights Act.

Amendment of the Law

Debate between Edward Leigh and Lord Lilley

Tuesday 29th March 2011 Commons Chamber

[Mr Peter Lilley (Hitchin and Harpenden) (Con)]

I congratulate my right hon. Friend the Chancellor on sticking to his plan to reduce the Budget deficit. Far from these cuts being too much, too deep, too soon, I believe that what he has proposed is the minimum over the longest credible period that we can reasonably expect will enable us to avoid the sort of financial crisis that has hit many neighbouring countries.

I want to address an illusion. The right hon. Member for Birmingham, Hodge Hill (Mr Byrne), whom it is normally a privilege to follow, based his speech on it, and it permeated the speech of the Leader of the Opposition at the weekend when he addressed the large rally on cuts. It is the illusion that we can have something for nothing. We live in a world of finite resources. If we spend more on one thing, we have to spend less on another. If we spend more now, we must expect to spend less—substantially less—in future, when we repay our debts with compound interest. The Opposition do not seem to realise that. I would be more than happy to engage in debate with either of them if when they advocated the restoration of spending in one area, they simultaneously spelt out the additional cut they intended to propose in another area of spending, but they never do so and the right hon. Member for Birmingham, Hodge Hill did not do so today. As long as hon. Members refuse to spell out alternative cuts to those that they reject, rational debate in this place is simply impossible.

Mr Deputy Speaker, I know that you are well aware that the ancient states of the Peloponnese resolved these problems by rules of debate that required those advocating increased spending on programmes that would require extra taxation or more borrowing to stand up in the public forum on a platform and argue their case with a noose around their neck. If they succeeded in persuading their fellow citizens of the need for increased spending and taxation, the noose was removed, but if they failed, the platform was removed. I understand that this healthy discipline meant that those states remained solvent for centuries on end.

[Mr Edward Leigh (Gainsborough) (Con)]

The slight problem with that is that if we had a similar system here, under whichever Government, there would be no Members of Parliament left.

[Mr Lilley]

That is slightly unworthy of a former Chairman of the Public Accounts Committee, who at least would remain, if in solitary glory.

A related illusion that the Opposition purvey is the call, frequently made by the Leader of the Opposition, for the Government to prepare a plan B in case the economic road gets rocky—a plan B would, by implication, involve higher spending and borrowing. Of course it is a bit rich for the Leader of the Opposition to ask for a plan B, given that he has not yet spelt out a plan A, but the reality is that if we abandon the plan set out by the Chancellor, we will get a plan B, but it will not come from the Opposition or from my right hon. Friend the Chancellor—it will come from the savers and pension funds whose money we would need to borrow to finance that increased borrowing. If we did bottle out of what we have proposed, they would demand deeper cuts over a shorter period and they would require us to pay a higher rate of interest. The net result would not just be deeper cuts in the public sector, as we have seen the markets impose on Portugal, Greece and Ireland; those higher interest rates would kill off and abort the recovery in the private sector on which we depend to create the jobs to take up the people not employed in the public sector. So it would be a disaster for this country if we were to go down that route.

The third illusion that some Labour Members purvey—perhaps the more honest elements among them—is the belief that we could avoid public spending cuts if we were prepared to put up taxation. But who would pay those higher taxes? Ultimately, taxes are always paid by individuals and if the squeezed middle are not going to pay them—they have been precluded from bearing a higher burden of taxation by the Leader of the Opposition —either the poor or the rich must do so. I would not put it beyond a party that sought to double the burden of taxation on the lowest paid by removing the 10p tax rate to seek extra revenues from the very poor, but that would not yield much money so Labour must look to the very rich for it. I just remind Labour Members that if they read the Red Book, they will see that the top 1% of income tax payers in the coming year are expected to pay no less than a quarter of the entire revenues of income tax—last year, the top 5% paid more than half of all income tax. We are reaching the point at which any further burden of taxation on those people would kill the goose that lays the golden eggs. In the words of my old friend, the sadly now deceased Lord Harris of High Cross, punitive taxes beyond a certain point do not redistribute income, they redistribute people. We have reached that point and we would go beyond it if we accepted the advice of the Opposition.

I urge my hon. Friends to support the Chancellor and my right hon. Friend the Secretary of State in what he is doing at the Department for Work and Pensions and to ignore the blandishments and illusions of the other side.