British Bill of Rights

Lord Faulks Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Bach]

To ask Her Majesty’s Government when they intend to publish their proposals for a British Bill of Rights.

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

My Lords, the Government will fully consult on our proposals before introducing legislation for a Bill of Rights. Further details regarding this consultation will be announced in the autumn.

[Lord Bach (Lab)]

I thank the Minister for his reply to my Question. The House will know that the Ministerial Code has recently been amended to remove the reference to Ministers having to comply with international law and treaty obligations. This follows the Permanent Secretary at the Foreign and Commonwealth Office saying that human rights are no longer a priority for his department. Will the Minister please give the House a categorical assurance that the amendment to the Ministerial Code will make absolutely no difference to Ministers’ existing duty to comply with international law and treaty obligations? If, as I hope, the answer to my question is yes, why has it been necessary to amend the Ministerial Code at all?

[Lord Faulks]

My Lords, as the noble Lord will be aware, we have a dualist system rather than a monist system. Neither Parliament nor the courts are bound by international law, but a member of the Executive, including a Minister such as myself, is obliged to follow international law, whether it is reflected in the Ministerial Code or not. All Ministers will be aware of their obligations under the rule of law.

[Baroness Goudie (Lab)]

Why was the decision taken by the Foreign Office and the Cabinet to downgrade human rights?

[Lord Faulks]

I do not believe that there was any downgrading of human rights. We have a proud history of protecting human rights, both here and abroad, and we will continue to maintain our concern for those human rights.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, independent reports—the Minister’s answer appears to confirm this—state that there will be no pre-legislative scrutiny of this vital and, frankly, ill-defined proposal and that the Government will go to legislation after a consultation of about only 12 weeks. Can the Minister refute those reports and promise full pre-legislative scrutiny of a constitutional measure of this fundamental importance?

[Lord Faulks]

We will consult fully on our proposals, and will announce further details in due course. There have already been two consultations pursuant to the commission on a Bill of Rights, and there will be a third consultation. This is in marked distinction to what happened on the Human Rights Act, which was brought in without any consultation at all, within six months of the Labour Party gaining power.

[Lord Lexden (Con)]

Will the Government give a clear assurance that their proposals will be fully compatible with the European Convention on Human Rights, to which prominent Tories made such a marked contribution?

[Lord Faulks]

There are no plans to leave the European Convention on Human Rights. My noble friend is correct to say that Conservatives had a significant role in drafting the convention. There are considerably more difficulties with the Strasbourg jurisprudence, rather than the convention itself.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister tell us whether it is proposed to consult the devolved institutions, and if so, when that consultation will take place?

[Lord Faulks]

We will consult the devolved assemblies, because we are conscious of the intricate treaty arrangements that exist. We will do so thoroughly, and keep them well aware of all our plans.

[Lord Soley (Lab)]

A number of us are worried about the impact on our European colleagues, not least because of the message that what we are talking about doing sends to Vladimir Putin and a number of east European countries. I am concerned about that, and I think a lot of people in Europe are concerned about it too, particularly as it comes from a country that has taken such a leading role on the rule of law throughout history.

[Lord Faulks]

A number of objections have already been raised, before we have even published our proposals, and I hope that all Members of this House will approach this British Bill of Rights—something that was floated not only by the Liberals but twice by the Labour Government—with an open mind. Among the various objections to a proposed Bill, the idea that the fact that we have any doubts about the primacy of the Strasbourg court might affect Putin’s foreign policy is one I find absolutely ridiculous.

[Lord Beecham (Lab)]

Will the Minister tell us whether the Attorney-General was consulted about the change to the Ministerial Code? What is his view of the remarks by the former Treasury Solicitor and head of the government legal service that:

“It is disingenuous of the Cabinet Office to dismiss the changes to the ministerial code as mere tidying up”,

and that Ministers,

“will regard the change as bolstering, in a most satisfying way, their contempt for the rule of international law”?

[Lord Faulks]

I have already made clear to the House what Ministers regard as their duties, and I do not resile for a moment from that. As the noble Lord will well know, details of internal discussions and advice are not disclosed to the House—and I do not propose to depart from that well-established convention.

[Lord Hannay of Chiswick (CB)]

The Minister has given us a very forthright reply on President Putin—but is he quite sure that President Putin takes the same view as he does?

[Lord Faulks]

I cannot for a moment pretend to understand President Putin’s thought processes or his secret desires. But whether or not we are satisfied with the decisions of the Strasbourg court can hardly justify some of the extraordinary tactics that he uses in Ukraine, or to treat dissidents and those who oppose his policies.

[Baroness Corston (Lab)]

My Lords, the Minister has just told the House that the consultation will start in autumn. Which autumn does he have in mind? Does he mean that it is imminent, or that it will be some time in the future?

[Lord Faulks]

This autumn.

[Lord West of Spithead (Lab)]

My Lords, will the Minister be able to address the issue of the Smith judgment, whereby officers such as myself, who fought to the best of our ability with the weapons we had at hand rather than going away and waiting until we had better weapons, would now be liable for the actions they took? Can this be addressed?

--- Later in debate ---

[Lord Faulks]

I do not want to comment on what will or will not be in the consultation, but it is surely likely that in the course of the consultation, a number of people will want to advise us on the scope of Article 2 and its effect on combat immunity and what happens on the battlefield.