Human Rights Act 1998

Lord Foulkes of Cumnock Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I too warmly congratulate the noble Baroness, Lady Whitaker, and the Labour Party on initiating what has been an excellent debate. I am not normally here at this time on a Thursday, as my noble colleagues know.

I have particular interest in this issue as a member of the United Kingdom delegation to the Parliamentary Assembly of the Council of Europe. We oversee the operation of the European Convention on Human Rights and the court.

First, I remind the House that the Human Rights Act was passed by our Parliament, as the Labour Party said at the time, to bring rights home, enabling UK citizens to take alleged breaches of ECHR rights before UK courts, as the noble Baroness, Lady Kennedy, rightly said. That is being misrepresented by people opposite.

It now seems that the Government are intent on ripping up the HRA and introducing this new, weaker, so-called Bill of Rights in order, sinisterly, and among other things, to make it harder for asylum seekers to make Britain their home.

Despite the best efforts of the right-wing press to convince us otherwise, the court in Strasbourg and the convention were not designed by some European Union bureaucracy; they were designed by us, as others have so rightly said. In fact, the UK initiated the convention project out of a shared belief that human rights throughout Europe should be common to all. It is particularly vital, as many of us here know, for the countries that were formerly part of the Soviet Union.

The court in Strasbourg is clearly still a place where the UK has influence, and all of us who are delegates to PACE elect the judges to the court after very careful scrutiny. I can tell noble Lords that it is a large bench of very distinguished judges. I have met our own British judge, who is a very distinguished member. They are all like that; we look at things very carefully.

Attempts to replace the Human Rights Act with a Bill which will limit our accountability to the ECHR, combined with recent suggestions that we should entirely remove ourselves from the court, from the convention and presumably from the Council of Europe, severely diminish our standing as a leader on human rights in Europe. I think it is Suella Braverman who has been promoting that. I think many of us will be glad to see that she is out of the race to be leader of the Conservative Party and Prime Minister.

We should be under no illusion as to the effect these proposed changes will have. Without the Human Rights Act and by extension the ECHR to protect basic human rights, the most marginalised groups in society will suffer. Article 8 protects the right to respect for family life and has been successfully used to prevent the deportation of migrants and refugees when it has been deemed that deportation would put their family members at risk. The new Bill proposes tightening the definition of risk to “extreme harm” and limiting its application to children, not all family members. Beyond the risks of regressive reinterpretations of the ECHR, the new Bill also seeks to introduce the concept of individual responsibility, which would seem directly to undermine the idea that all should be equally entitled to human rights. The Bill of Rights would also require individuals seeking to make a human rights claim against a public authority first to seek permission from a court, which would create yet another barrier for vulnerable people.

A number of Members mentioned the excellent memorandum from the Scottish Human Rights Commission. I say as a former Member of the Scottish Parliament that I agree with it and strongly support what it has said to us. In summary, it says that in its view, the UK Government’s proposals threaten to damage protections available under the Scotland Act,

“unsettling the Scottish devolution and introducing confusion and uncertainty for Scotland’s public authorities.”

A number of Members have asked the Minister to deal with this in his reply. I reinforce that and ask him to do so clearly and explicitly.

If the Human Rights Act needs reform, it certainly should not be driven by populist policies targeting people who have in many cases already suffered human rights abuses. The Government should instead consider much-needed reform of our criminal justice system, which is a much more pressing priority, given that current failures in the court and prison systems are encouraging rather than preventing crime, as we see in Scotland as well as in England and Wales.

If the United Kingdom is to remain at the forefront, as we should be, of the defence of human rights around the world, the Government need to make a rapid U-turn as quickly as possible, and I hope this is done under whoever is the new leader of that party opposite.

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank and pay tribute to the noble Baroness, Lady Whitaker, for bringing this very important debate to this House, and indeed to all your Lordships who have spoken so eloquently this afternoon.

First, I note that there seems to be a remarkable degree, perhaps to one’s surprise, of common ground. The Government entirely agree that the domestication of the Human Rights Act was an extremely good thing. We have heard today many good examples of the positive impact of the domestic Human Rights Act. I want to make it clear that we do not want to throw those out of the window, as has been suggested. We are not “abolishing a jurisdiction”; we are not “withdrawing”; we are not “ripping up”. We are remaining in the convention; the convention rights continue to apply; public authorities continue to be bound. Once that premise is accepted, we can perhaps get on to the more pertinent debate, which is exactly how we balance the various competing considerations that arise in the application of the Act. I say again: the Act itself and the principle are fully accepted. I associate myself with the tributes paid earlier to the noble and learned Lord, Lord Irvine of Lairg, who introduced the Bill, to my noble and learned friend Lord Mackay of Clashfern, who was closely associated with the development of human rights in this country, to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who was also extremely prominent, to the noble Lord, Lord Cashman, and to a large number of other people here and elsewhere who have contributed, rightly, to the development of a human rights culture.

I am happy to accept the invitation from the noble Baroness, Lady Whitaker, to pay tribute to the work of the British Institute of Human Rights. Much of what is good about the Human Rights Act comes from its everyday application, in which training and guidance by the BIHR and many other organisations have been vital. That training will continue to be applicable to the Bill of Rights, as we want to ensure that the positive enjoyment of human rights in this country continues unabated.

Having, as it were—I hope—cleared away that ground, perhaps I may next refer to the pertinent question raised by the noble Lord, Lord Ponsonby, as to exactly what the timing of the Bill now is. As your Lordships are aware, the parliamentary timetable has in recent days become somewhat squeezed. As I understand it, the Second Reading in another place is now planned for September, so that detailed consideration of the Bill in this House is unlikely before the autumn. It is true that, by then, a new Prime Minister will be in post—we do not yet know who—but, as of today, I am unaware of any relevant change in the Government’s plan to bring the Bill forward as I have just outlined.

[Lord Foulkes of Cumnock (Lab Co-op)]

Has the Minister given further consideration to the proposal by a number of committees in both Houses that there should be pre-legislative scrutiny?

[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—