British Bill of Rights

Lord Faulks Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Faulks]

My Lords, I begin by congratulating my noble friend Lord Lester of Herne Hill on securing this debate. I also congratulate him on his enormous contribution to the cause of human rights over the years. I should declare an interest as a member of the commission, though I came relatively late to the party, joining as a replacement for Michael Pinto-Duschinsky. On leaving the commission he expressed his views firmly and widely on where he thought the discussions had gone wrong. During my period at the commission there were certainly vigorous debates about a number of issues, as is apparent from the range of views expressed in the report. However, the process of arriving at our conclusions was a civilised one, made easier by the skilful chairmanship of Sir Leigh Lewis.

There was a majority view, as your Lordships have heard, in favour of the creation of a UK Bill of Rights that incorporates and builds on our obligations under the European Convention. That was the answer to the question contained in our terms of reference when the commission was set up by the Deputy Prime Minister. However, it seemed to at least two of us that the commission had not been asked to consider the key issue: namely, how the United Kingdom should respond to the judicially activist approach taken by the European Court of Human Rights in its interpretation and application of the convention in the past 30 years—in particular, whether the United Kingdom should consider withdrawal from the court’s jurisdiction, or at least renegotiate our terms of membership.

Jonathan Fisher QC and I were responsible for a paper entitled Unfinished Business, which is incorporated in volume 1 of the commission’s report. It reflects our views and, I venture to think, the views of others outside the commission. I respectfully suggest that those views are not restricted to what my noble friend described as the “Tea Party” tendency in the Conservative Party. I will not repeat now what we said but will make a few observations that arise from the commission’s report.

In talking of human rights, it is easy to approach matters at a level of abstraction. However, what does a human rights case actually look like at domestic level? Here I must declare a further interest as a practising barrister who, since the enactment of the Human Rights Act, has devoted a considerable amount of time to defending public authorities against claims arising directly or indirectly from the Act. Fascinating though these cases have been, I have been far from convinced that most of them have very much, if anything, to do with what people would once have meant by the expression “human rights”.

The courts in this country have, for the most part, strained to follow Strasbourg case law and its often rather creative interpretation of the convention. Supporters of the Human Rights Act tend to extol the wording of the convention, which contains a perfectly acceptable summary of human rights. However, as Jack Straw, former Home Secretary and Secretary of State for Justice, said in the debate on prisoner voting,

“the problem is not the plain text of the convention, but the way in which it has been over-interpreted to extend the jurisdiction of the European Court ... the problem has arisen because of the judicial activism of the Court in Strasbourg, which is widening its role not only beyond anything anticipated in the founding treaties but beyond anything anticipated by the subsequent active consent of all the state parties, including the UK”.—[Official Report, Commons, 10/2/11; cols. 501-02.]

In a way this was all very predictable. Lord Denning was a judge who was once highly regarded as a legal thinker. His judgments are cited much less often in the courts now. He wrote a great deal about the European convention. It was relied upon in courts before the Human Rights Act was enacted. He said in the case of Ahmed v Inner London Education Authority in 1978:

“The Convention is drafted in a style very different from the way we are used to in legislation. It contains wide general statements of principle. They are apt to lead to much difficulty in application; because they give rise to much uncertainty. They are not the sort of thing which we can easily digest. Article 8 is an example. It is so wide as to be incapable of practical application. So it is much better for us to stick to our own statutes and principles, and only look to the Convention for guidance in case of doubt”.

I suggest that there was much wisdom, indeed prescience, in what he said, albeit that his views are often dismissed as insular.

One aspect of the debate that has not sufficiently been emphasised is the extraordinary cost of human rights. Before I became a member of the commission, I asked a Written Question of the Minister as to whether the commission would be considering as part of its report questions of cost. The reply was that this was a matter for the commission. On arrival at the commission, it was apparent that the membership did not consider cost to be within its terms of reference. On 7 March 2013, I asked the Minister here in the Chamber to tell us whether the Government could give us any figures for how much human rights were costing us. His answer was that he could not do so. He described respect for human rights as being,

“a prize beyond cost”.—[Official Report, 7/3/13; col. 1614.]

All noble Lords value the protection of human rights, but, with great respect, that does not mean that the question of cost becomes a no-go area.

The LASPO Act made some widespread changes in the cost of litigation. Many were timely, in particular those that effectively implemented the Jackson reforms. I was somewhat less enthusiastic about the alterations to legal aid, which had the potential to deny representation to some with genuine claims and limited means. However, the Minister was reassuring as to the alternative and cheaper ways in which ordinary citizens could seek appropriate remedies. One exception to the cost-cutting exercise appeared to be cases involving the Human Rights Act. No figures were given to Parliament as to how much such cases were costing or would cost in the future. Were the Government concerned that denying legal aid to any claim involving the Human Rights Act would put them potentially in breach of Article 6 of the convention?

Claims involving the Human Rights Act continue, whether as claims for compensation or as the basis for judicial review. The sums awarded are often trivial. The cost, however, is not. The cost of the Abu Qatada litigation is said to be in excess of £1.7 million. It seems to be absolutely crucial that the Government should at least make some attempt to calculate what the HRA has cost in terms of legal fees generated by litigation. The cost does not end there. Public authorities have conscientiously attempted to ensure that their policies and practices are human rights-compliant. This is a very difficult exercise because it depends on trying to second-guess what view the Strasbourg Court, and thus our courts, will take of a particular situation. We need to know about these costs in an area that has much in common with our overreaction to the requirements of health and safety or even the Data Protection Act.

I have another substantial question for the Minister. I appreciate that he may have difficulty in answering some questions, in view of the well understood difference of opinion between the Liberal Democrat Party and Conservative Party in relation to the Human Rights Act, but I hope that he can answer this one. Do the Government agree that in leaving the ECHR, if that course were taken, we would also have to leave the European Union? This was the somewhat surprising view recently expressed by Judge Dean Spielmann, the president of the ECHR. My understanding of the position is that EU treaties do not provide that adherence to the European convention is a formal requirement of continued membership of the EU, even if membership may be regarded as a benchmark in terms of respect for human rights.

Such respect is something that unites us all, but if we were to leave the Strasbourg Court and indeed the Council of Europe, this respect for human rights would not diminish. Before the Act came into force, this country had a proud, albeit not unblemished, record for the protection of human rights through its domestic law. We are, of course, bound by a plethora of international obligations from which we would not be relieved were we to leave the Strasbourg court. Any noble Lords who wish to be reassured about our contribution to the protection of human rights and democracy all over the world should read the 2012 Foreign and Commonwealth Office report published in April this year. It is a remarkable tribute to the work of the FCO. If I highlight in particular its work in relation to sexual violence as a weapon of war, that does not in any way diminish the other aspects of its work.

The JCHR, of which I am a member, would still have important work to do even if the Act were to be repealed. The EHRC, set up pursuant to the Equality Act, would continue to have an important role. Above all, Parliament can legislate to protect human rights on a more targeted and nuanced basis, rather than having to perform somersaults to reflect actual or potential decisions made here or in Strasbourg.

The question is therefore not whether we should be protecting human rights but whether the Strasbourg court is the best or even the preferred method of defining or enforcing human rights standards. It is said by some that we would be a pariah state were we to cut our links with the Strasbourg court. The human rights records of some counties subject to the jurisdiction of the European Court suggest that membership is hardly a guarantee of the protection of human rights.

It is important not to demonise the Strasbourg court. It does not have the same regard for precedent, and the jurisprudence in this country, post human rights, can make difficult reading, as judges try to impose some sort of taxonomy—because of our courts’ respect for precedent—on a jurisprudence that lacks such respect. As my noble friend Lord Lester said, some of the decisions from Strasbourg have been profound and influential. However, if we were to leave the convention it would not mean that we would ignore such decisions any more than we would ignore influential decisions from elsewhere in the world.

My noble friend said that the European convention was the work of distinguished Conservative politicians and referred to Sir David Maxwell Fyfe as one of those responsible for its first draft. This is true but social historians, particularly having regard to his response to privacy and gay rights issues, tend to the view that it is most unlikely that he would have approved of the way the Human Rights Act developed and has been interpreted.

In conclusion, I remain passionately committed to the cause of human rights, but retain deep reservations about the Human Rights Act. Above all, I am concerned that human rights can get so easily lost in the law and the language of lawyers. Whereas law should be the servant of human rights, it has become their master.