Human Rights and Civil Liberties

Lord Beecham Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Beecham (Lab)]

My Lords, the maxim that the safety of the people is the supreme law has been with us for two millennia. It remains an essential obligation of government, not least at a time when the lives of innocent men, women and children are threatened by the brutal, indiscriminate violence of fanatics of whatever religious or political persuasion. But a society which prides itself on pluralism, democracy and freedom of speech and thought must balance the threat to its people and those core values against the impact of the steps it takes to protect them. External circumstances change with growing rapidity. Cicero’s maxim was written, no doubt, with stylus and ink. Today, give or take the odd political headstone, we are in the world of the internet, with social media and video imagery reaching millions within moments and with the capacity to inform or malign, shock, damage or incite. Inevitably, these massive changes raise difficult questions about the relationship between the citizen and the state, and between the state and those who would undermine these cherished values.

Britain’s record in this area has been creditable, and it is a matter of great regret that there are some who, in their anxiety to distance this country from Europe, misrepresent the impact of the European Convention on Human Rights, the European Court of Human Rights and the Universal Declaration of Human Rights. As we have heard, this country played a leading role in the drafting of the convention and the universal declaration, with both major political parties engaged—and, as the noble Lord, Lord Lexden, reminded us, with Sir David Maxwell Fyfe, by no means known for liberal views on most other matters, very much in the forefront.

In recent years there has been a relentless campaign to denigrate both the convention and the court, and to misrepresent their relationship to and impact upon our legal system. The Human Rights Act 1998 does not require our courts to strike down legislation, merely in appropriate cases to declare its incompatibility with the convention. As the Library Note reminds us, Parliament is not obliged to amend the law—a point made by my noble friend Lord Cashman and the noble Lords, Lord Lester and Lord Marks. The campaign against the convention and the ECHR, and the Government’s declared intention to substitute a British Bill of Rights, are rooted in a blinkered, partisan approach to fundamental issues which transcend national boundaries.

Consider the articles of the European convention set out with clarity in chapter 7 of Lord Bingham’s seminal The Rule of Law, a chapter which begins with the rubric:

“The law must afford adequate protection of fundamental human rights”.

He set them out: Article 2, the right to life; Article 3, the prohibition of torture; Article 4, the prohibition of slavery and forced labour; Article 5, the right to liberty and security; Article 6, the right to a fair trial; Article 7, no punishment without law; Article 8, the right to respect for private and family life; Article 9, freedom of thought, conscience and religion; and Articles 10 and 11, freedom of expression and of assembly and association. The noble and learned Lord, Lord Wallace, referred to some of those very important provisions.

Lord Bingham described how,

“the leading nations of Western Europe put their heads together to identify the rights and freedoms which they regarded as the basic and fundamental entitlement of those living in their respective countries”.

Writing five years ago, he said:

“Over the past decade or so, the Human Rights Act and the Convention to which it gave effect in the UK have been attacked in some quarters, and of course there are court decisions, here and in the European Court, with which one may reasonably disagree. But most of the supposed weaknesses of the Convention scheme are attributable to misunderstanding of it, and critics must ultimately answer two questions. Which of the rights discussed above would you discard? Would you rather live in a country in which these rights were not protected?”.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, touched on that theme.

Another dimension, which other noble Lords have referred to this afternoon, is the impact of the UK’s withdrawal on the rest of Europe—a Europe in which nationalism in an ugly form is manifesting itself again. Think of the treatment of Roma in some of the countries of eastern Europe or of the strength of the far right in Hungary. For too long, particularly in the last five years, Britain has failed to give a lead on many issues, including those we are debating today. That departure from the bipartisan traditions of half a century and more is to be deplored. The noble and learned Lord, Lord Wallace, my noble friend Lord Cashman and the noble Baroness, Lady Ludford, referred to this. It would be deplorable if Britain’s influence was not to be available to support those in the rest of Europe who very much need the protections which we are discussing today.

Dominic Grieve, the highly respected former Attorney-General, has pointed out that many of the 47 states contracted to uphold the convention have poor records on human rights and continue to face problems. He said:

“The decisions of the Court of Human Rights regularly centre on these states. They often relate to violations of basic rights, such as being beaten up in police cells, being denied access to a lawyer … in almost all cases the judgments are implemented … It has made the Convention one of the most effective global tools in improving human rights”.

He went on to criticise a Conservative paper advocating repeal of the Human Rights Act and an approach which would invoke human rights laws only in “the most serious cases”. Pointing out that most decisions have been taken by our own courts, he concludes:

“The effect will not be to free our courts from following Strasbourg decisions—something they are already doing … but of reducing their ability to apply Convention principles to individual cases”.

He describes that as “a recipe for chaos”.

To these strictures from such an eminent source must be added some observations from the Joint Committee on Human Rights published on 11 March. The committee drew Parliament’s attention to,

“the strikingly small number of declarations of incompatibility made by UK courts under the Human Rights Act during the lifetime of this Parliament, which confirms the significant downward trend in the number of such declarations since the Human Rights Act came into force in 2000”.

The report also welcomed the process of ECHR reform and the,

“increasing prominence … gradually being given”,

to the role of national parliaments,

“in scrutinising the implementation of Court judgments and … Convention compatibility”.

It went on to assert that the UK Government are,

“in a good position to provide strong leadership on this question”.

That of course would cease to be the case if the UK withdrew from it. Could the Minister indicate when the Government will be responding to the committee’s report containing these and other recommendations and observations?

There are of course matters other than the Government’s important, if deplorable, intentions toward the convention and court, which have been considered in this debate. One is the response to the report of Mr David Anderson, the Independent Reviewer of Terrorism Legislation, and his key calls for judicial oversight of all interception warrants and some communications data—a call backed by my right honourable friend the shadow Home Secretary Yvette Cooper—for a new law to comply with international human rights safeguards and for investigatory powers tribunal rulings to be subject to appeal on matters of law. Many of us will have noticed, with regret, the frigid response of the Home Secretary to the proposal for judicial oversight in particular.

We in your Lordships’ House will be debating the role of the Lord Chancellor next Tuesday. That will perhaps be a more appropriate occasion to welcome the arrival of a successor to Mr Grayling, but many of us will have read Mr Gove’s speech to the Legatum Institute with interest. In fairness, it was about reform of the justice system, but one might have hoped for a reference to some of the issues we are debating today, not least the topic of judicial review, a critical tool in upholding human rights and civil liberties—if I might venture a slightly critical note of the noble and learned Lord, Lord Wallace, I would say that the Liberal Democrats of course supported the late Government’s restrictions on judicial review—but also relevant to such matters as the conditions of our overcrowded prisons and asylum centres. Too often, they are an affront to human dignity and very much raise the issue of civil liberties and human rights. Could the Minister indicate whether the Lord Chancellor will conduct, in addition to the review of legal aid, a review into the changes to judicial review?

The House will be grateful to the noble and learned Lord, Lord Wallace, not only for his very distinguished service to the law—in particular in your Lordships’ House and as a member of the last Government—but for affording us the opportunity for this debate. On behalf of the Opposition, I thank all noble Lords who have contributed to it. I am sure that we are all very much looking forward to the Minister’s reply. I hope that the Government will reflect very carefully before proceeding with very substantial changes to the culture that has been built up in the last few decades, underpinned particularly by the Human Rights Act, in a way that would damage our system but also our reputation.