Queen’s Speech

Lord Black of Brentwood Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, although he is momentarily not in his place, it would be remiss of me not to welcome my noble friend Lord Dunlop to this House, as he and I first worked together in the Conservative research department some 30 years ago. It is good to have him here. I also associate myself with the remarks made by the noble Lord, Lord Bew, about my friend Sir Brian Cubbon, whose exemplary commitment to public service was in the very best traditions of the Civil Service. We mourn his passing.

I want to address an issue of fundamental constitutional and legal importance, free speech, in particular with regard to the debate that is beginning about the future of the Human Rights Act. I declare my interest as executive director of the Telegraph Media Group.

I strongly welcomed the commitment in the Conservative manifesto to “defend press freedom” and,

“continue to defend hard-won liberties and the operation of a free press”,

alongside specific pledges on the protection of journalistic sources. I am sure none of us needs reminding about the crucial role of a free press. If we did, we need look no further than the role the press has played in uncovering the squalid corruption at the heart of international football, for far too long brushed under the carpet by those who should have been scrutinising and regulating it.

It will be the role of this House to make sure that the Government live up to those commitments on free speech, particularly in relation to a number of the Bills we will be receiving that could have a significant impact on freedom of expression. We should be on our guard. For instance, we concentrated a good deal at the end of the last Parliament on the inadequacies of the Regulation of Investigatory Powers Act, which was being regularly abused by the police and local authorities to spy on journalists. I therefore welcome the forthcoming investigatory powers Bill, which is intended to modernise the law and bring in appropriate oversight and safeguards for media investigation, reporting and protection of sources. The devil will be in the detail of those vital clauses and we must seek to ensure that they really do provide a “shield law” to protect journalists and their sources from intrusive surveillance. We cannot afford another RIPA, rushed on to the statute book without proper scrutiny of the serious impact it could have on freedom of expression.

We shall also have to look carefully at the extremism Bill, which will take the state into potentially difficult areas of censorship. We all want to see an end to the vile outpourings of extremist groups preaching hate and terror, but not in a way which undermines our own essential liberties. In other areas I am extremely pleased to see that there is to be a serious root-and-branch reform of the bail system, limiting pre-charge bail to 28 days in all but exceptional circumstances. In recent years the abuse of the bail system to punish journalists for suspected crimes, for which in the overwhelming majority of cases they have now been found not guilty, has had a profound chilling impact on press freedom. These reforms will go a long way to ensuring that this shameful position, which has already destroyed a number of lives, can never be repeated.

The main point I want to make surrounds the issue of human rights, about which we have had a huge amount of heat in recent days but precious little light. Indeed, it is dismaying that so many lobby groups are already trying to skew what should be a debate based on the facts by, in my view, wholly erroneously linking Labour’s Human Rights Act, which I believe to be a constitutional nightmare, with the maintenance of the fundamental freedoms which are every Briton’s birthright. The truth is that we enjoyed them long before the Human Rights Act came along, and we will continue to do so long after it goes, as I believe it must, at least in its current form.

As I made clear in a debate in this House back in May 2011, I am an unashamed admirer of the ECHR, which was established, as we have heard, after World War II to limit the power of the state—something which, as a Conservative, I wholeheartedly support. Over the years, great good has come from the convention, which has helped keep the peoples of Europe free and been a beacon of liberty for others in the world who do not enjoy the freedoms that we do.

As someone who cares passionately about free speech and is involved in the business of publishing, I know how important Article 10 on freedom of expression is, for instance. Newspapers have relied on it many times in the past to tackle reactionary legislation, including the libel laws which we reformed in the last Parliament, and will do so again, not least in an inevitable challenge to the draconian terms of the Crime and Courts Act on exemplary damages, which passed through Parliament with no scrutiny or, indeed, concern for the convention rights in 2013.

From a personal point of view, I am only too acutely aware of how the ECHR has helped bring about human equality, something from which I have benefited. The truth is that the ECHR was a fundamental part of our lives long before 1998 when this Act changed everything. As happens in many other countries, if someone believed that the state was not living up to its ideals, they could take a case to Strasbourg where we would be required to find a remedy for any breach. It was a common-sense system which worked well: it ensured that we maintained our fundamental human rights; that the courts could not be overruled; and that Parliament remained sovereign. It was the Human Rights Act that reversed this constitutional settlement, not the ECHR.

I know that many were disappointed that the gracious Speech contained no immediate commitment to legislate to repeal the HRA. I was not. I think it was a mark of great wisdom by the Government and an understanding that the damage done by the HRA is so far-reaching and so complex that it will take time to work out how to undo it. Indeed, one of the problems we have is that the Human Rights Act was in fact put on the statute book without enough rigorous consultation or scrutiny, and with accompanying rhetoric that this was merely a piece of technical and tidying-up legislation which could make it easier for people to take the Government to court. The White Paper accompanying the Bill said that it would, in line with the wishes of the architects of the convention, simply,

“enable people to enforce their Convention rights against the State”.

But that was not the case. The legislation went far further than that. By making the courts public authorities with a duty to enforce convention rights—as well as importing Strasbourg jurisprudence into our legal system—it ushered in a constitutional revolution.

If this fundamental change to our parliamentary and legal system was foreseen by its architects, it was never revealed—and that is one reason why it should go. If it was not foreseen, and all this has happened by accident, then that is another reason why change is essential.

I shall not go into the whole area of privacy—where I saw at first hand how the warnings that my noble friend Lord Wakeham gave this House about the way that the Human Rights Act would allow the courts to usher in a general law of privacy went unheeded. But that is now exactly what we have.

In his brilliant lecture at University College in December 2013, the former Lord Chief Justice, the noble and learned Lord, Lord Judge, dissected with great rigour the problems that have emanated from the manner in which we incorporated the ECHR. He said:

“Thomas Jefferson would have forecast that this assertion of judicial power was inevitable. He wrote in 1820 ... ‘It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions’. He was worried that the Constitution would become ‘a mere thing of wax in the hands of the judiciary’”.

I believe that, addressing those issues today, Thomas Jefferson would have applied them to the Human Rights Act. Undoing this mischief is one of the most serious issues facing this Parliament. It will take time to tackle. Let us have a serious consultation before legislation is brought to us. But let us ensure that it is a consultation based not on prejudices and myths but on facts. The Human Rights Act is nothing to do with our fundamental rights, which will long outlive a piece of constitutional vandalism.