Human Rights Act

Fiona Mactaggart Excerpts

Tuesday 30th June 2015 Westminster Hall

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I beg to move,

That this House has considered the future of the Human Rights Act 1998.

I am delighted to welcome you to the Chair, Mr Betts, and to see that we have a healthy turnout of Members and non-Members here today. I am grateful to the organisations that provided briefings ahead of today’s debate. I should particularly like to place on the record my appreciation of the efforts of Liberty, Amnesty International, and the Equality and Human Rights Commission.

The Gracious Speech included a commitment by Her Majesty’s Government to introduce proposals for a British Bill of Rights. I was pleased that it was framed in such terms for two reasons. First, it is still apparently the policy of Her Majesty’s Government that it should be approached at least on a British, if not UK-wide, basis. Secondly, I was pleased that they are seeking to bring forward proposals and not, as in respect of other commitments in the Gracious Speech, legislation. I take it from that that we are in a place where there is still a debate to be had and where thinking is still going on within government, and I welcome that. I hope that today’s debate is an early part of the debate that will be conducted elsewhere, within the Chamber and the Select Committees in this House and the other place, and even within the various all-party groups. I also hope that this debate will, as befits a subject of this magnitude, be conducted in a thoughtful way and one that accepts good faith and differences on all sides.

The Minister has a significant background in the area of human rights and I do not question his good faith in this matter. I would probably disagree with him both on the definition of the rights and also on the way in which they might be perfected, but I certainly accept his background and his good faith. I hope that the debate in government will not take as its starting point the paper published last year by the former Lord Chancellor, the right hon. Member for Epsom and Ewell (Chris Grayling), which was entitled “British Bill of Rights and Responsibilities”.

The right hon. and learned Member for Beaconsfield (Mr Grieve), whom I am pleased to see in his place today, said that that paper contained a number of howlers which are quite simply factually inaccurate. Those who have known the right hon. and learned Gentleman for as long as I have will know that for him such language borders on the intemperate. Those within government who are considering how to proceed in this way would do well to listen to his words. I expressed that view at the time as a Cabinet Minister. I felt that that contribution to the debate failed to take proper account of the way in which the Human Rights Act had become part of the constitutional architecture of the United Kingdom.

The right hon. and learned Member for Beaconsfield also asked the question that goes to the nub of the issue: what are we seeking to achieve here? Having seen recent pronouncements within government, that remains the question. To answer that question, however, we first need an answer to a much more fundamental question: what is the Government’s intention in relation to the European convention on human rights? Is it that we should remain party to the convention, or will the Government at some future stage, if they are unable to achieve their stated aims, countenance withdrawal from it?

It is worth reminding ourselves of exactly what the Human Rights Act does and the change that it wrought after its implementation. In a dry legal sense, it allows access to convention rights through our domestic courts. Section 2 of the Act says that in reaching judgment our UK domestic courts must take account of the European Court of Human Rights judgments. Whether this was to be extended to make it a binding precedent was considered in the other place during the passage of the Bill and was expressly excluded, so I think the ambit and the extent of the operation of section 2 is an important part that is often misunderstood or just ignored.

The Human Rights Act has brought much more than dry jurisprudence to our legal system and to our constituents. It has offered many of our fellow citizens a basic, fundamental right to respect and dignity in their dealings with government and other public bodies. To take a few instances, it has allowed people with mental health problems the opportunity to retain some rights and some control over their own lives when dealing with the national health service; it has allowed victims of crime to insist on proper investigation of the crimes from which they have suffered; and it has allowed families to be kept together in circumstances in which the operation of the state might otherwise have kept them apart. At its most basic, it has in one instance ensured the right to life. In one case that was offered by way of a working example, a patient suffering from dementia was on a ward where he had been subject to a “do not resuscitate” order. On investigation, it was found that the doctor in charge of the ward had imposed such an order in respect of everybody on the ward without discrimination. At its most fundamental, the Human Rights Act protected the patient’s right to life.

I suspect that such cases are the easy cases. If we dealt only with the easy cases, we probably would not be here today. There is no denying that the application of the Human Rights Act has produced a number of controversial cases. The cases of Abu Qatada and those relating to the right of prisoners to vote are two that spring most readily to mind. This goes to the heart of the matter for me. Human rights are not just there for the nice people. If we are to defend human rights in a meaningful and worthwhile way, we have to be prepared to defend the rights of the unworthy individual from a legitimate authority, or the right of an unpopular minority against the popular majority. Perhaps I should declare an interest: as a Liberal Democrat, I know what it is to be part of an unpopular minority.

For such reasons, the Human Rights Act is inevitably going to be unpopular in government, because it stops Ministers doing what they might otherwise wish to do and what they might otherwise find it expedient to do. That is why, if the protections are to be meaningful, they must be overseen by the judiciary, and not by Parliament or by the Executive, who are insulated from the mood of public opinion at any given time. That brings us back to the question posed by the right hon. and learned Member for Beaconsfield: what are we hoping to achieve here? In truth, the Abu Qatada case and the right of prisoners to vote are cases that, before the Human Rights Act, would have got to Strasbourg. Those are exactly the sorts of cases that we saw going from this country over the years.

The question that then arises is if we are trying to get round these cases by somehow seeking to repatriate jurisdiction, what does that mean for the United Kingdom’s future as a contracting party to the European convention on human rights? When the Minister responds to the debate, I hope he will answer this question: what is the Government’s position in relation to our continued future as a contracting party to the convention on human rights? Are there circumstances in which the Government would be prepared to leave the convention? Doing so would put us in rather select company: it would be us and Belarus, and that is not the company I envisaged the United Kingdom finding itself in. In previous Parliaments, I worked with Amnesty International and other organisations on the worldwide abolition of the death penalty. I campaigned with various groups in the United States, South Korea, Japan and elsewhere. The UK has tremendous standing on human rights across the world. We would lose a lot if we walked away from the convention and put ourselves in the company of Belarus. We should be doing what we can to bring Belarus within the convention; we should not be seeking to join it outside.

I want briefly to consider the constitutional architecture of which the Human Rights Act is now such an important part. For example, it is hardwired into the devolution settlements in Scotland, Wales and Northern Ireland.

[Fiona Mactaggart (Slough) (Lab)]

Before the hon. Gentleman gets to that issue, he has just been dealing with UK jurisdiction delivered by the 1998 Act. Is he aware of the appalling delays that existed before the Human Rights Act? For example, in the case of Abdulaziz, Balkandali and Cabales, which I was involved in when director of the Joint Council for the Welfare of Immigrants, women were separated from their husbands for seven years before getting a judgment that proved that the then British immigration rules breached their human rights.

[Mr Carmichael]

Indeed; the time it took to get such cases to court—and the need to have the means to do so—was a glaring injustice, and that situation was affected by the introduction of the Human Rights Act. People needed money, or somebody behind them with the means, to get access to human rights. We should not return to that.

On the devolution settlements, the Scottish Parliament and the Welsh Assembly both have the Human Rights Act hardwired into them: their Acts must be compatible with it. It has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention. Given recent votes in that Parliament, I do not see how that is going to happen.

The situation in Northern Ireland is even more acute, because there the Human Rights Act is the subject of part of the Good Friday agreement. The second part of the “Rights, Safeguards and Equality of Opportunity” section of the agreement states:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

The creation of the Police Service of Northern Ireland and the body overseeing it, the Northern Ireland Policing Board, have given effect to that.

--- Later in debate ---

[Neil Carmichael (Stroud) (Con)]

It is a pleasure to serve under your chairmanship, Mr Betts, and to salute the right hon. Member for Orkney and Shetland (Mr Carmichael), the former Secretary of State for Scotland, for initiating and leading this debate. He dealt with the devolution issue extraordinarily well and none of us disagreed with his fundamental point that to unravel devolution agreements by challenging the Human Rights Act would not be wise.

I ask the Minister for his interpretation of “taking into account”. We need clarification of that, following the exchanges of this debate. When I tell someone that I am taking their views into account, I am usually saying, “I heard, but I’m not going to do it.” We need to recognise that that is really what the phrase means. That is why it is probably unwise of the Government to be quite so controversial in their proposals.

The other issue to consider is what a Bill of Rights looks like. Without giving a history lesson, we already have a Bill of Rights. It was passed in 1689, but it did not actually do the job that the Government will have in mind for any future such Bill. The danger is that once rights start to be defined they can be restricted. Calibrating or describing rights is not as easy as it first appears. The risk is that a Bill of Rights could be too tight or too loose. It is important that we see what the Bill of Rights might look like.

[Fiona Mactaggart]

Does the hon. Gentleman agree that the problem with the rights debate in Britain has been that, unlike countries such as South Africa, we have failed to debate what to do when rights clash? For example, the right to private and family life and the right to protest clash, and we in Britain have not debated how to deal with those clashes.

[Neil Carmichael]

My way at looking at things in terms of English law is that I prefer to assume that I have a right unless Parliament has told me that I do not. That is how we should be operating.

Doing something different from what we have done in the past also has international implications. As we have already heard, the architect of the European Court of Human Rights was a former Conservative Home Secretary who was not a libertarian in the true sense of the word. Leaving the Court would be to depart from that tradition and would risk our international reputation while making it harder still for other nations to think in terms of their own aspirations for rights, and might not discourage others in their intention not to give rights. The issue is not only legal, but one of foreign policy.

In short, we must consider the matter carefully. I would prefer to have legislation that improves what we already have, rather than undermining and changing the structure that we have become used to.