Human Rights Act 1998

Lord Carlile of Berriew Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a great pleasure to follow the noble Baroness. I agree with what she said and defer to her experience in dealing with matters under the Human Rights Act. The background to this debate is in six stark words in paragraph 2 of Schedule 5 to the Bill of Rights Bill:

“The Human Rights Act … is repealed.”


The noble Baroness, Lady Whitaker, opened this debate in that context, with great self-control and temperance. I thank her for keeping the subject so cool, when it could be extremely emotive. If that Bill is ever debated in this House, the Government will face a serious fight, because it is not a manifesto Bill in the form in which it has been presented to Parliament.

The noble Lord, Lord Sandhurst, is an admired legal colleague, and I hope he takes what I am about to say in good part. In my study at home, I have approximately 100 years of Criminal Appeal Reports. Let me take the first Birmingham Six appeal as an example: I could take pages from those reports and say to your Lordships, “These decisions were just wrong”, but I do not present that as an argument for abolishing the jurisdiction of the Court of Appeal Criminal Division. Courts are not perfect places and, as has just been illustrated by the noble Baroness, Lady Chakrabarti, there will be subjects on which we disagree, but they are not an argument to abolish a jurisdiction.

The quantity of cases that have come before the European Court of Human Rights in recent years is deeply connected with this argument, as Suella Braverman happens to have said this morning—I may return to that in a moment. There have been only five cases before the European Court of Human Rights against the United Kingdom since October 2017. I doubt if any Member of this House or member of the Conservative Party could present a respectable argument for disagreeing with the decision reached in those cases.

So I look forward with interest to hearing the speech of the noble and learned Lord, Lord Bellamy, in due course. I had the privilege of serving as one of his part-time chairs when he was president of the Competition Appeal Tribunal. Brilliantly knowledgeable, he was a very good teacher, and, heavens, did I need it in that jurisdiction. The House will often benefit from his great intellectual skills and persuasive voice, and I hope he will use that persuasive voice in his customarily logical way to try to persuade the Government that they are wrong about this issue. We will not blame him if he fails; we will blame him only if he does not try.

The absurdity of Her Majesty’s Government’s position was illustrated this morning by Suella Braverman who is, of course, the current Attorney-General—she is not a random Back-Bencher standing for the leadership of the Conservative Party—who said that one of the reasons why we should abolish the Human Rights Act and take no part in the decisions of the European Court of Human Rights is because that is the way we would prevent refugees crossing the English Channel. I have been struggling with that one all morning. It has absolutely no intellectual or—can I put it this way?—even political credibility. I hope at least that we will hear the Government saying that tropes of that kind will not be used in argument against the Human Rights Acts.

We will have full debates on this issue, I fear, if the new Prime Minister, whoever they are, decides to proceed with this Bill or something like it. I simply ask them to bear in mind some words of James Madison, the founding father of the American constitution, who wrote:

“Liberty may be endangered by the abuses of liberty, as well as the abuses of power”.


That proportionality test is well worth some deliberation before presenting legislation as intended at the moment to this House at least.

--- Later in debate ---

[Lord Bellamy (Con)]

Not as far as I am aware, is the direct answer to the noble Lord’s question. The original Bill of Rights was not subject to pre-legislative scrutiny as far as I know. However, I would myself like to use the extra time we now have in a process of outreach to your Lordships’ House and to other interested organisations—I saw Sir Peter Gross yesterday; I have plans to visit each of the devolved legislatures shortly—to explore and understand all these points and see how far we can narrow the differences between us. I respectfully suggest that there are issues that we need to grapple with here and we need to grapple with them sensibly. This Bill clearly arouses very strong feelings and quite a lot of anxieties, but I hope that we can resolve a lot of them and quite a lot of other problems in the course of sensible and reasoned debate.

At one end of the spectrum, there seems to be an almost entrenched view that the 1998 Act is more than perfect and that the slightest change will bring the whole edifice crashing down, or at least give rise to unacceptable risks. At the other end of the spectrum, which has been mentioned several times, there is the point of view that we should withdraw from the convention altogether. The latter is not the Government’s position, and whatever may be said by someone in their capacity as candidate for the leadership of a political party is not relevant for today’s purposes. The position of the Government is quite clear: to stay in the convention and to reconfirm the rights that flow therefrom that are clearly set out in the Bill. From the Government’s point of view—

[Lord Carlile of Berriew (CB)]

Would the noble and learned Lord be kind enough to help Members of your Lordships’ House, Members of another place and, above all, the public by informing the remaining candidates for leadership of the Conservative Party of what he has just said so that they get it right during the TV debates that will start tomorrow?

[Lord Bellamy (Con)]

With respect, I do not think that I have any channel of communication with the candidates for the leadership of the Conservative Party, but what I have just said is on the record and may be referred to. That is the Government’s position.

As your Lordships have observed, I personally find myself—as do the Government—with cannons to the left and cannons to the right. So in the valley of calm reasoned debate in this House, I would like to explore with your Lordships the centre ground to which this Bill is directed. In my repeat of the Oral Statement on the Bill on 23 June, I used the phrase “constructive balance”: balance between the roles of the legislature and the judiciary; balance between the domestic courts and the Supreme Court, on the one hand, and the Strasbourg judges, on the other, having regard to subsidiarity and the margin of appreciation; and balance between rights and responsibilities. To that theme of balance, I add three related themes: constitutional clarity, the separation of powers and reinforcing the fundamentals that underpin human rights.

I will address constitutional clarity first. After 25 years of the Act in operation, it is important, in the Government’s view, to restate certain basic principles. These include the following: that the convention rights are an integral part of the domestic law of the United Kingdom; that the ultimate judicial authority in interpreting those rights is the Supreme Court, taking into account our domestic legal traditions in particular; and that the possibility of divergence from Strasbourg is recognised—that is not in dispute; it has always been there, as has been pointed out already. Those basic principles are effectively recognised in Clauses 2 and 3 of the Bill, which are declaratory of the existing position.

It is important that the convention retains a very special and unique constitutional status: no other Act of Parliament provides a machinery where another Act of Parliament, even a subsequent Act of Parliament, can be subject to a declaration of incompatibility under Clause 10. However, when that arises, it is the Government’s view that the separation of powers must prevail. At the moment, under Section 3, we have this curious provision whereby the courts can read down the Act to have a different meaning to that which Parliament intended. The Government wish to clear up that constitutional muddle, if I may put it that way, and put the responsibility for bringing the legislation in question into line with the convention back where it belongs—that is to say, the legislature that first enacted the legislation in question.