Bill of Rights

Debate between John Hemming and William Cash

Thursday 17th March 2011 Westminster Hall

[Mr William Cash (Stone) (Con)]

I had not intended to speak in this debate. Tomorrow we have a debate on the Floor of the House on parliamentary sovereignty, an issue on which I have spoken several times in this Chamber, which is the best means of expressing views that sometimes get lost in the House, with all the restrictions on debate that are imposed on Members of Parliament through the wilful use of programming. I wait with enormous interest to hear what the Deputy Leader of the House has to say.

I alluded to one aspect of this matter just now; I have spent some time taking an interest in the principles that hinge on the question of a Bill of Rights. I am all for a Bill of Rights, but the question is: which one? Similarly, on the question of the rule of law: which law, whose law, and who is going to enforce it?

Eventually, one returns to a question that I am sure exercised those who devised the original Bill of Rights in 1689, which as it happens was never incorporated in an Act of Parliament. Nevertheless, by convention, and therefore by custom, that statement was enforceable in its own fashion, and deals with some fundamental matters. I want to know exactly how, in the context of the review set up by the coalition Government, matters concerning the proposed new Bill of Rights will be tackled. I may be unduly suspicious, but I want to know whether the Bill of Rights will enhance and increase the rights of the people of the United Kingdom. That point will emerge in due course and perhaps the Deputy Leader of the House will be in a position to tell us when he responds to the debate this afternoon.

One difficulty is that, as I conceive it, the Bill of Rights would not withstand measures such as the European arrest warrant, investigative orders and powers of entry. We heard about such matters in a debate the other day on the so-called Protection of Freedoms Bill, and about the problem of the rulings by the European Court of Human Rights. Fairly recently—I think it was 11 March 2010, almost exactly a year ago—the Lord Chief Justice made a speech to the Judicial Studies Board. He said that judges were interpreting Strasbourg precedents in such a way that they were applying them as if they were UK law. The concerns of the Lord Chief Justice were encapsulated by his warning, “We must beware.” Those are the words he used and he was talking specifically to the judges. I want to know that the Bill of Rights, which includes, or is associated with, matters as important as habeas corpus, will be retained. If such things are to be given renewed constitutional primacy, they must be absolute and not a sub-text of a European legal system that overrides them.

Two days ago I attended a European Committee with the Lord Chancellor, a man I greatly respect. We have totally different views about these matters, but we should not think that he does not understand that the arguments I present must be answered. That is why he came to the Committee. He was talking about the charter of fundamental rights, which is directly related to the issue of the Bill of Rights. If we have a Bill of Rights, will it be superior in some fashion to the European treaties and to the European Communities Act 1972, which incorporates the protocol for the charter of fundamental rights? If people do not understand that matter, they should start reading the material. There is no point in pontificating about a Bill of Rights if we do not understand the hierarchy of laws. That hierarchy says that European Community law comes first and is enforceable by the European Court.

When the Lord Chancellor says, “Oh, nothing has changed; we had a discussion on the Lisbon treaty and a lot of people got it all wrong”, I am bound to point out that he voted for the Lisbon treaty and for the charter of fundamental rights—unlike the Conservative party—and he voted against the referendum. I am not criticising him for that; I respect him for it. That is his right. However, one provision in the Bill of Rights is the right of free speech, including in the House of Commons and elsewhere. It is similar to the question about privilege, or about how the rights of people in this country are expressed through the rights of their Member of Parliament, to which my hon. Friend the Member for South Norfolk (Mr Bacon) so rightly referred.

If we are to talk about a Bill of Rights, let us get the hierarchy right. I do not want a public relations job done on that, or any Government spin or spivvy attempt to convince the British people that they are getting something that they are not getting. Let us have it out; let us know that this is the supreme law of the United Kingdom, and not something churned out to give people the impression that they are getting something when they are not.

I want to know what the relationship will be between the Bill of Rights and the European convention on human rights, and between the Bill of Rights and the charter of fundamental rights. Therefore, I have two simple questions. At its apex, will the Bill of Rights be supreme in UK law, enforceable and enforced by the Supreme Court, as against, contradictory to and, if necessary, inconsistent with the European Court, and the assertions of certain members of the Supreme Court that they have ultimate authority? Will that be the case notwithstanding the European convention, the charter of fundamental rights and the European Communities Act 1972 and all treaties under that? If the Bill of Rights is to be effective, I want it to be a real Bill of Rights and not simply a rather obscure version of an amalgamation of those other charters and conventions. At the moment—I do not know whether the Deputy Leader of the House knows this—chapter 3, I think, of the Lisbon treaty sets out, in article after article, the source and derivation of the charter of fundamental rights. In terms of derivation, there is the United Nations this and the European Court of Human Rights that. There is a list of sources, and I trust the Minister has it with him so that he will be in a position to answer my question. Which legislation will have superiority?

[John Hemming]

One topic that has been at the top of media issues recently is the development of the law of privacy. A number of us share concerns about that, and I am interested in the hon. Gentleman’s views.

[Mr Cash]

My views are very strong indeed. I can reasonably claim to have been the progenitor of the Calcutt inquiry, because some years ago I tabled an early-day motion that attracted more than 300 signatures and called for an Act on privacy, which would have been a tort, and ensured that the ordinary citizen had the right to privacy compared with those in the public eye. I distinguished matters of interest to the public from those genuinely in the public interest, and that subject remains a matter of deep concern.

It is also true—here I make a concession—that article 8 of the European convention contains a right of privacy, but my answer to that is not that I have any objection to the rights of privacy that are now in that convention. The question that is far more important than any other, in my view, is this. Why should people assume that we need a European convention? By the way, we drafted the convention for the purposes of—shall I put it delicately?—helping other countries to understand that there were rights that might be usefully employed in their own countries. There, we were helpful, but what is to prevent us from legislating, from passing laws, on our own terms, through our own elected representatives, that provide the kind of rights that otherwise are provided under things such as the European convention or the charter of fundamental rights? In other words, will this law be indigenous? I look at the Deputy Leader of the House deliberately at this point. Will it be, to use a slightly unusual expression, an autochthonous United Kingdom law or will it be a dependent law? Will there be a surrender to the so-called universality of law, or will it be something that is modelled and devised by the British people, for the British people, given that we are able to claim that we have been the defenders of liberty and freedom throughout the world for a very long time?

Last night I was at a dinner at which people were discussing the future of conservatism. I had the temerity—I think some people were quite glad—to mention Edmund Burke. I do not have the whole quotation at hand, but he wrote very clearly about the fact that there are no discoveries to be made. We have already understood, as he put it, what is a proper kind of freedom. That compares with Thomas Paine’s “Rights of Man”, which was an entirely abstract and in the event utterly destructive approach, adopted, as it happens, by the French revolutionaries with dreadful consequences.

Our rights and freedoms are based on practical experience, not on theory, so some of us get a little amused, if not bored, by people who make certain assertions about those of us who are interested in having referendums or, for that matter, insisting on the sovereignty of the United Kingdom Parliament when all we are doing is seeking to ensure that the rights that are conferred on the British people and the legislation that is passed are consistent with what the British people in general elections, rather than coalition agreements, have actually agreed to do. That is my template: if I have made a promise to my constituents, I intend to stick to it. I also think that it is good for our democracy that people should be able to accept that the promises made in general elections are carried through.

I do not want in any way to prejudge, and I do not think that I have said a word today to prejudge, what the Bill of Rights will contain or what the new commission that has been set up will come up with, but I have taken this opportunity, at very short notice, to try to set out, very simply, the principles on which that entire judgment must be made. First, foremost and exclusively, not partially, it must be based on the Bill of Rights being supreme in terms of the law applied to the people of this country through our courts and notwithstanding any other legal systems or legal requirements, whether emanating from the European Community, the European convention on human rights, the European Union or any other source. That must be the case if the Bill of Rights is to mean anything. We are not an island in the sense that we are exclusively unaffected by other parts of the world, but we do have the right to determine our own jurisdiction and the right to determine it through this Parliament. Because we are elected by the voters of this country, we can insist that the Bill of Rights is indigenous to this country and not dependent on some other hierarchy of law.