Human Rights Act 1998

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, some 40 years ago—that is, some 20 years before the 1998 Act—I used to appear for the UK Government in Strasbourg. I regularly—almost invariably—lost their cases. My record there was: played 12, lost 10, drew 1, won 1. That counted as not a bad record in those days.

I then spent some 30 years on the Bench, roughly half of it before the 1998 Act came into force in 2000 and half afterwards, dealing with cases of a human rights nature. There are some who question whether the convention was ever necessary for us, and whether our own laws were not ample and well able to secure our basic rights and liberties. Indeed, one prominent member of the Tory party just a few weeks ago in this House, in an HRA debate, raised that very question and asked the Minister to identify any specific advantages that had come to this country as a result of our adherence to the European convention. Five minutes is just about enough for a riposte to that, to show that the convention has proved over the years invaluable in liberalising and modernising our laws and practices, but it does not allow time to discuss the impact of the 1998 Act in intensifying, accelerating and facilitating the process. Still less does it give time to discuss the more nuanced and altogether more topical question as to the effect of the proposed replacement of the 1998 Act with Mr Raab’s current human rights Bill. As to that, I shall say no more than that, while I regard much of it as window dressing—or in the words of Sir Robert Buckland, as a solution in search of a problem—I am less sceptical than many as to whether it is all bad or whether it is designed, as some would suggest, to limit our human rights in future.

Turning therefore very briefly to the benefits of the convention over the years, here are just a few. These first are drawn from the cases that I lost in Strasbourg. First, on prisoner rights, we used to censor all prisoner correspondence, in and out, even with their lawyers. The Home Office, to its credit, wanted to liberalise, this regime, but the Prison Officers’ Association, a militant union, would not allow it. We duly went to Strasbourg, fought and, of course, lost the cases, and the Home Office was then in a position to confront the union with these adverse decisions, and we made way forward.

We similarly happily lost the closed-shop case to the then Government: there is as much a right not to join a union as there is to join one. Other cases I lost were about telephone tapping practices and the security service intrusions where there was no legal authorisation. In later years, as the noble Baroness, Lady Warwick, mentioned, our adherence to the convention prevented the MoD outlawing all service personnel with homosexual tendencies, and prevented the Executive, as opposed to the judiciary, in life cases determining the actual length of tariff sentences and prisoner release dates. One could go on and on, but there is no time.

Despite my general support for the convention, I should not be taken as applauding all the court’s decisions or as opposing all that is now proposed by way of what the Minister calls the recalibration of the legislation—there are aspects that need it. The noble Lord, Lord Sandhurst, mentioned the Aguilar case where the Supreme Court made a contentious decision on forced marriage—I dissented.