Human Rights and Civil Liberties

Lord Faulks Excerpts

Thursday 2nd July 2015 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I am very grateful to the noble and learned Lord, Lord Wallace of Tankerness, a former ministerial colleague, for initiating today’s debate. The subject is, of course, always of critical relevance but perhaps never more so than today, when we face challenges to civil liberties and the Government are faced with trying to balance civil liberties with the security of the nation. The debate has been instructive and thought provoking, graced by contributions of a very high standard. I have listened to all the contributions with care and would stress that the Government have a clear mandate on the question of the current legislative framework for human rights but nevertheless are currently very much in listening mode.

On that point, I am disturbed that the noble Lord, Lord Lester, received no response from the Lord Chancellor. I know that the Lord Chancellor is anxious to see as many people as he can and that, in fact, the noble Lord, Lord Lester, is on the list of those he would like to see. I cannot explain any administrative failing, but I can assure the noble Lord that he will be most welcome and that, if he could put up with the company of a couple of zealots, we would be happy to discuss these matters with him.

Noble Lords are aware that, as Minister of State for Civil Justice at the Ministry of Justice, I am responsible for representing the department and the Government in this House on the subjects of human rights and civil liberties. I share this task and responsibility with my ministerial colleague Dominic Raab. We are both equally committed to coming up with lasting solutions to meet the challenges which this responsibility entails.

Brief reference was made during the debate to the so-called snoopers’ charter, which is understandable, because we are shortly to have a debate on the report from David Anderson QC. I was on the pre-legislative scrutiny committee for the original draft communications data Bill, so I have some personal knowledge of the issues, which perhaps particularly illustrate the difficulties that a Government have in balancing individual privacy with security. I know that the Government are carefully considering David Anderson’s report and will have to consider how that balance is best reflected. It is a little unfortunate that the journalese expression “snoopers’ charter” has been so widely adopted. It demeans a very difficult argument that has to be undertaken by all those who care about these things.

The noble Lord, Lord Addington, mentioned vigilance over disability rights, and made some valuable points about the need not to characterise or mischaracterise those with disabilities—and how we as a Government, or any Government, should tread very carefully in this area.

In a debate involving the Liberal Democrats, it was perhaps no surprise that the noble Lord, Lord Roberts, mentioned the perennial subject of electoral reform, and the lack of a democratic mandate. Of course, what he said will be regarded by many as a valuable contribution to the debate, but I hope that he will forgive me if I do not go into a long response on questions of democracy.

I shall focus considerably on the question of the reform of the Human Rights Act, which has formed the bulk of the debate in your Lordships’ House. It is beyond dispute that the United Kingdom has a strong tradition of respect for human rights, which long predates our current arrangements. The Government are proud of that tradition and, in developing proposals for reform, will make sure that the tradition is not only maintained but enhanced. However, we take the view that all is not well with the current law in relation to human rights, and the Government were elected with a mandate to reform and, where appropriate, modernise the United Kingdom’s human rights framework. Therefore, we will bring forward proposals for a British Bill of Rights, which will replace the Human Rights Act. Our Bill will protect fundamental human rights, but also prevent their abuse and restore some common sense to the system.

We will consult fully on our proposals before introducing legislation. I hope that will be acknowledged around the House as an appropriately cautious way in which to proceed—not a sign of weakness or second thoughts but a sensible way in which to undertake reform of a major constitutional nature. I do not want to pre-empt that consultation, but it may be useful if I give the House some pointers to our current thinking, without prejudice to any final conclusion on what is or is not in the consultation. It is unfortunate that so many noble Lords make the assumption that any British Bill of Rights would contain rights that are “more restrictive” than those in the convention.

The Human Rights Act was passed shortly after the Labour Party won the general election in 1997. As a number of noble Lords observed, it was a very clever piece of draftsmanship. The narrative was that the Act would bring rights home, obviating the need for a trip to Strasbourg by UK citizens. There was much speculation about what the impact of the Human Rights Act would be on our law domestically; many thought that the effect would be marginal. In fact, there is virtually no aspect of our legal system, from land law to social security, to torts and consumer contracts, that has not been touched to some extent by the Human Rights Act.

The noble Lord, Lord Cashman, in his passionate speech said that the Act had worked magnificently—and certainly I would not quarrel that there have been good decisions influenced by it. But he should not, and the House should not, underestimate the capacity of the courts before the Human Rights Act and the capacity of the court of Parliament to protect human rights by showing an ability to pass new legislation to develop the common law. This Parliament passed the Modern Slavery Act and the previous Government passed the equal marriage Act. One issue about equal marriage was whether there would be difficulties with Strasbourg if the Act came into force. So we should not underestimate what this country has in its capacity to protect human rights.

Many lawyers are very enthusiastic about the Human Rights Act. I have to say that my own experience as a practitioner does not make me an unequivocal supporter of it. As a barrister representing public authorities, I saw the incursion of human rights law into the fields of social services, education and police investigations. It contributed a great uncertainty to the law, and I am afraid that I am not persuaded that it resulted in any real improvement in the protection of fundamental rights. It certainly resulted in a great deal of additional expense in areas where budgets were already tight. But whatever views might be taken of the effects of the Human Rights Act—and I do not want to embark on a litany of cases for and against; views can reasonably diverge—I think it would be accepted that the Act has not endeared itself to the public generally. That was one conclusion that the commission reached. Not all of this is the fault of the tabloid press; the problems with Abu Qatada and others, prisoner voting—on which there can reasonably be different views—and some of the frankly trivial claims have not helped.

[Lord Lester of Herne Hill]

The Minister and I were on that commission. Is it not right that our report, which I have here, showed that there was overwhelming support for the Human Rights Act in Scotland, Wales and Northern Ireland, and among those who answered our two consultations?

[Lord Faulks]

I am grateful to the noble Lord, and of course I shall come to the question of Northern Ireland and Scotland in due course. There were two consultations, of which the Government will take account, along with their own consultation, to enable them to form the fullest picture possible of the way forward.

Section 2 of the Human Rights Act, as noble Lords have correctly observed, requires courts only to take into account the Strasbourg jurisprudence. As the noble and learned Lord, Lord Carswell, frankly admitted, the superior courts—the Supreme Court and the Court of Appeal—went rather further than simply taking into account the Strasbourg jurisprudence. I think that it is now generally acknowledged that the Ullah case involved a wrong turning. As noble Lords have said, it is true that something by way of a dialogue has ensued. It is also true to say that the Supreme Court has shown something of a retreat or modification of its approach to Section 2. None the less, there is need—there may be some general agreement on this—for clarification. The Strasbourg court should not be demonised, as some of its decisions would continue to be useful, whatever our precise relationship with it, but it may not be the only source of wisdom. We should not pivot entirely off the Strasbourg court when there are useful decisions elsewhere in the world—and, of course, it should not impede the development of the common law as it has always developed.

The convention was drafted, as has been said, by Conservative politicians, and is a remarkable achievement in itself. To encapsulate human rights is perhaps a philosophical task, but I do not think the Government have a difficulty with how they are expressed—it is, of course, only in their interpretation. However, the convention must be seen in the context in which it was drafted, in the aftermath of the Second World War, just as the Magna Carta, so much commented on, must be seen in its particular historical context.

I should make it clear, in answer to a number of questions, that it is no part of our plans to leave the convention. The noble and learned Lord, Lord Brown, referred to the number of cases that he had lost, no doubt having valiantly argued them for the Strasbourg court. When our British Bill of Rights becomes law, as I hope it does, there will still no doubt be some cases before Strasbourg and the successor to the noble and learned Lord, Lord Brown, may achieve better or worse results.

The Prime Minister, in his speech at Runnymede—

[Lord Wallace of Tankerness]

The Conservative manifesto also said something about curtailing the role of the European Court of Human Rights. Could the Minister, for the benefit of the House, elaborate on what was meant by that part of the manifesto?

[Lord Faulks]

I am reluctant to say very much more, for the very reason that we have an open consultation. I think I have made it clear that our minds are not closed on this. Earlier in my comments I referred to Section 2, and that particular provision, and its relationship with the Strasbourg jurisprudence. That is a matter that will be considered carefully as part of the consultation for reasons that a number of noble Lords have given.

The Prime Minister made this comment during the celebration of Magna Carta:

“Magna Carta takes on further relevance today. For centuries, it has been quoted to help promote human rights and alleviate suffering all around the world. But here in Britain, ironically, the place where those ideas were first set out, the good name of ‘human rights’ has sometimes become distorted and devalued. It falls to us in this generation to restore the reputation of those rights—and their critical underpinning of our legal system”.

We want our human rights law to be fair and just and to regain public confidence. We intend that a British Bill of Rights will be a positive response to the challenges facing the culture—the subject of the debate—of human rights and civil liberties in the United Kingdom.

It is not just a question of this Government believing this needs to be done. Previous Administrations seem, by what they have said, to have reached similar conclusions, but then have, for one reason or another, failed to follow matters through. During an appearance on the BBC in May 2006, the noble and learned Lord, Lord Falconer of Thoroton, said about the Human Rights Act:

“We all agree about liberty, about the right to life, the right to privacy, those issues. And the problem is not a subscription to those rights, it is how it operates in practice”.

The last Labour Prime Minister, the right honourable Gordon Brown MP, in July 2007 said in the other place,

“it is right to involve the public in a sustained debate about whether there is a case for the United Kingdom developing a full British Bill of Rights and duties”.—[Official Report, Commons, 3/7/07; col. 819.]

Talking to the BBC later the same year in October, he said:

“Jack Straw is signalling the start of a national consultation on the case for a new British Bill of Rights and Duties…This will include a discussion of how we can entrench and enhance our liberties— building upon existing rights and freedoms but not diluting them—but also make more explicit the responsibilities that implicitly accompany rights”.

He said that on BBC News on 27 October 2007.

I also refer the House to comments made by the noble Baroness, Lady Falkner, in May’s edition of Prospect. She said:

“Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken … A British Bill of Rights is a good idea”.

A majority of the commission on a Bill of Rights thought the same. I served on that commission, as the noble Lord, Lord Lester, said. He was part of the majority. I would not claim for a moment that our reasoning was precisely the same, but the conclusion that we reached was identical.

Many other countries, within the Council of Europe and outside, have their own equivalent of what we will have in a British Bill of Rights. I hope that by engaging in a proper consultation on our proposals for how the United Kingdom’s human rights framework should be reformed we will be able to identify many points of agreement across the whole political spectrum, including with more members of Her Majesty’s Opposition. It has quite rightly been said, I think by the noble Baroness, Lady Ludford, and others, that at various times different political parties have varied enthusiasms for a British Bill of Rights. We intend to try to produce a Bill of Rights that can produce real consensus across the parties.

The noble and learned Lord, Lord Wallace of Tankerness, no doubt had an eye on devolution when tabling this Motion for today’s debate. Certainly, since the election and since the debate about the shape of the future human rights framework has begun in earnest, it has been repeatedly raised as an apparently intractable issue that will stump any reform and of which the Government are currently unaware. The Government are fully alive to the devolution dimension, and we will consider the implications of a Bill of Rights for devolution as we develop our proposals. I think the noble and learned Lord will understand if I do not comment on meetings that the Secretary of State has, or on discussions, but I assure him and the House that we will fully engage with the devolved Administrations and the Republic of Ireland in view of the relevant provisions of the Belfast, or Good Friday, agreement. I heard what my noble friend Lord Lexden said in that regard.

It is important to emphasise that the United Kingdom’s international obligations neither begin nor end with the European Convention on Human Rights, a point underlined by the fact that, as we debate here today, a team from the United Kingdom is being questioned about our country’s performance against the commitments we have signed up to in the United Nations International Covenant on Civil and Political Rights. Whatever form the Bill of Rights finally takes, the Government have no intention to resile from its many other international obligations, such as those arising under the United Nations convention against torture, which prevent removal of a person to another country,

“where there are substantial grounds for believing that he would be in danger of being subjected to torture”.

We were not a lawless country before 1998. We will not be in the future. We will comply with our many international obligations.

I am sorry that the position of those in my party was compared to Syriza by the noble Baroness, Lady Ludford. We have been described as zealots by the noble Lord, Lord Lester, who has previously described the position that we take as being part of the Tea Party tendency in the Conservative Party. Worst of all, he accused me the other day of being a Eurosceptic. None of those things I believe to be true.

I am grateful to noble Lords who have spoken in this debate and to the noble and learned Lord, Lord Wallace, for calling it. Much of what has been said has been extremely valuable. I hope the debate, both formally and informally, will continue. Much of what has been said will help to influence what the Government decide. I am glad that my noble friend Lord Lexden reminded us that the originator of “one nation” was Stanley Baldwin, not Disraeli, as is so often thought. “One-nation government” is a phrase that has been bounced from one side of the Chamber and possibly beyond recently. We intend to govern as a one-nation Government. This British Bill of Rights will, I hope, be quintessentially a one-nation document, including all the parts of the United Kingdom and, so far as possible, the agreement and consensus obtained from all the parties. I am grateful for all contributions. I know this debate will continue.