British Bill of Rights

Lord Bach Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Bach]

My Lords, I thank all noble Lords who have spoken in this debate, particularly, of course, the noble Lord, Lord Lester, for securing the debate and for attracting a stellar cast to speak, even rather late on a Thursday afternoon in the middle of June. I am certainly not one of those stars. I have comparatively little history, either as lawyer or politician, with regard to the Human Rights Act or the convention. However, it is an honour for me to speak from the opposition Front Bench on this occasion and I, too, pay tribute to the noble Lord, Lord Lester, for his well deserved reputation, mentioned by many noble Lords, in this field.

I start with a quotation from another memorable debate in your Lordships’ House, held exactly 25 months ago on 19 May 2011, when my noble and learned friend Lord Irvine of Lairg led a debate on the ECHR, with many of the same cast as today, and answered, as today, by the noble Lord, Lord McNally. The noble Lord, Lord Thomas of Gresford, ended his contribution with these words:

“I consider the Human Rights Act 1998 to be the outstanding piece of legislation of the previous Labour Government”.

He went on to say, and we must give him allowance for this,

“next to the Government of Wales Act 1998. I congratulate the noble and learned Lord, Lord Irvine of Lairg, not simply on introducing the debate but on being the architect of an important piece in the structure of justice in our country”.—[Official Report, 19/5/11; col. 1501.]

That was a generous but well merited comment from the noble Lord, and a well merited compliment to my noble and learned friend as well.

This year marks the 25th anniversary of the establishment of Charter 88, many of the aspirations of which were adopted by my party in the early 1990s and then put into effect by the Government from 1997 on. Who says that pressure groups cannot achieve results? According to Professor Bogdanor the constitutional achievements of the Labour Government, ranging from the Human Rights Act to devolution, freedom of information, the creation of the Supreme Court, and much more, represent a formidable list. He may go too far when he says that it was an era of constitutional reform comparable to that of the years of the Great Reform Act 1832 or the Parliament Act 1911. However, even more impressive is the amount of power that was given away by some of these measures by that Labour Government. For example, the Human Rights Act gave power to individuals, the national states were given power by devolution and the judiciary was given power by the difference between the role of the Lord Chief Justice and that of the Lord Chancellor and by the creation of the Supreme Court. Professor Bogdanor went on to say that no British Government since World War II had dispersed power to the same extent.

Speaking from the Opposition Front Bench, I am proud of that record. It made our country a fairer, more open and better place to live. We were supported in all this—certainly for the most part—both in argument and votes by the Minister’s party, the Liberal Democrats. Both party manifestos for the 2010 general election talked about support for the Human Rights Act; the Liberal Democrats’ manifesto talked about protecting the Human Rights Act. It is therefore hardly surprising that when the Liberal Democrats found themselves in a coalition Government they had to think hard and quickly about how to prevent the Human Rights Act and the ECHR behind it being savaged by their coalition partner during the course of this Parliament.

Make no mistake: both before 2010 and since being in power, of course not all Conservatives but many of their leaders have regularly and systematically tried to trash both the convention and the Human Rights Act. They have often used language—perhaps sometimes to placate their anti-European supporters—that has sometimes, though not always, been a disgrace to a great party.

Rather unusually for me, I will pay a compliment to Liberal Democrat Ministers in this Government, and not least—in fact, probably for the most part—to the noble Lord, Lord McNally, for the manner in which he, along with others, has successfully prevented the Conservatives from carrying out constitutional mayhem during this Parliament. I do not know whose idea a commission on the Bill of Rights originally was, and who put together the personnel. However, if the aim was to kick these proposals deep into the long grass, it appears to have succeeded.

I pay tribute to all members and staff of the commission, particularly its chairman, for giving up so much of their valuable time to its work. Many of its members were busy and distinguished Queen’s Counsel, while others had other important obligations. They deserve our thanks; not least the chairman, who has already been described in Job-like terms and whose distinguished career in public service must have helped him in an almost impossible task. However—and I suspect that the House might have expected a “however” at this stage—it is surely fair to ask whether it was really worth all the time and effort to produce two large volumes of a report in effect to solve a political problem?

Where do the various and myriad conclusions lead us? What is the value of the so-called majority view, when it includes a number who clearly and honestly objected to the terms of reference and want us to be free of the convention? I admit that I do not completely understand the position of the noble Lord, Lord Lester, who is himself one of the architects of the Human Rights Act. When reading the 31—

[Lord Lester of Herne Hill]

I am grateful to the noble Lord. I wonder whether he agrees that it is core Labour Party policy since 1993 that a Human Rights Act is the first step, and a Bill of Rights the second. That was agreed by Labour in 1993, and as far as I am aware it is still Labour Party policy.

[Lord Bach]

As I understand it, the Human Rights Act is considered by some to be a British Bill of Rights in any event. However, I do not want to take issue with the noble Lord. I am here to praise him rather than criticise him. As I was going to say, when reading the 31 pages of the overview of volume 1, one can almost physically feel the strain in the language as it attempts desperately to find consensus where there is none. The majority view has been described as representing,

“a fragile coalition of views united around conceptions of a domestic Bill of Rights so different from one another as to render any consensus wholly illusory”.

These are the words of Mark Elliott, a reader in politics at the University of Cambridge, whose article is entitled, A Damp Squib in the Long Grass. This is perhaps a little harsh, but I think one senses what he is getting at. No wonder Professor Fenwick at the University of Durham described the document, perhaps rather generously, as “odd”. For me, the paper In Defence of Rights, by my noble friend Lady Kennedy and Professor Sands, is more persuasive. It destroys the confused majority view with a pretty well argued, moderate and sensible position.

The commission report has of course effectively stymied any change until after the 2015 general election. It is only when we know the result of that election and what will follow from it that we can realistically move forward. I would expect the Liberal Democrats to be every bit as robust in their defence of the Human Rights Act as I hope my party will also be.

I want to end on a perhaps rather less consensual note. I am afraid that the Liberal Democrats’ effective defence of the Human Rights Act and the convention is in marked contrast to the feebleness and lack of concern for the individual citizen evident in their acquiescence to—and sometimes even welcome for—some of the more reactionary measures that Her Majesty’s Government have recently taken. I of course refer to the restrictions either passed or proposed on judicial review, the no-win no-fee policy, and the position that private firms doing public work on public contracts may be exempt from freedom of information. Above all, I must say, it is evident in the decimation of social welfare law by taking it outside the scope of legal aid. It is no answer to say that citizens are still able in theory to go to law, because the reality is that without free legal advice, the poor and the marginalised in practice cannot go to law. Human rights exist outside the Human Rights Act. By limiting and restricting the ability of the citizen to take on the state, the Liberal Democrats are colluding in particularly anti-liberal acts.

I conclude by saying to the Minister that he has nobly protected the Human Rights Act in very difficult circumstances and that his part of the Government deserves great credit for that. Now is the time to protect the interests of individual citizens who need to take on the state. They, too, like those protected by the Human Rights Act, are an essential part of those who live in a free society.