British Bill of Rights

Lord Goldsmith Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Goldsmith]

My Lords, I need to start with an apology to the House and to the noble Lord, Lord Lester of Herne Hill, for arriving after the start of the debate. I can pray in aid a little bit of confusion about the starting time of the debate, and I know very well the views of the noble Lord, Lord Lester, from over the years so I can predict some of the things that he would have said.

I therefore hope that the House will permit me to make a few brief observations on this very important topic. In doing so, I declare an interest as a practising lawyer. I have been involved in human rights work, in the sense that a lot of the work that I did when I was Attorney-General involved vetting and approving—and occasionally not approving—legislation or executive action on the grounds of compliance or non-compliance with our Community obligations and arguing cases on behalf of the Government either in this country’s courts or, from time to time, overseas, including in Strasbourg. I have some experience of how the European convention and the Human Rights Act work. I was also the Prime Minister’s personal representative in negotiating the European Charter of Fundamental Rights, which was set up following the Cologne and Nice summits to try to draw up a charter for the institutions of the European Union rather than its member states. I am therefore familiar with the debates.

The principal point that I want briefly to make is that I am despondent and unhappy about the turn which has been taken in the debate on human rights, and I am therefore unhappy about the commission’s report. I am concerned about a proposal that would not just put in place additional protection in a British Bill of Rights but, at least in the view of some members of the commission and some members of the Government, replace the European Convention on Human Rights with something else. There are three reasons why that would be a retrograde step.

The first reason is the universality of human rights protection that the European convention gives rise to. It gives rise to universality across the European countries which subscribe to the Council of Europe and the European convention. This does not mean that it is interpreted or applied in exactly the same way in every country, nor should it be. There are different social conditions and the principles—the so-called margin of appreciation—provide an opportunity for different countries to be allowed a chance to apply the rules and rights in the European convention in a way which suits the social and economic conditions of that country. Otherwise, it means that all the countries which subscribe share the same fundamental values and are subject to the same fundamental restrictions on how they deal with people within their territories.

I am really worried at the prospect of the message it would send if the United Kingdom were to leave the European convention. The noble Lord, Lord Faulks, talked about the UK becoming a pariah state, but that is not quite what I have in mind. He also rightly described the very proud and important contribution that this country has made to human rights protection in many parts of the world. However, once it became clear that the view of the United Kingdom was that it could go its own way and no longer needed the European Court of Human Rights or to follow the European convention, I would worry about the example that we were setting. There are countries in eastern Europe—I will not name them but noble Lords can identify them very easily—that already find it difficult to comply with their obligations, and if they felt that they had the liberty to produce their own Bill of Rights and their own protections they would move in a very different way.

Secondly, the convention provides for a permanence of protections. It is not an immutable convention: it is open to member states to change. It is more often changed by the addition of rights through the agreement of new protocols but it is not impossible for member states to agree changes. However, it differs very much from parliamentary legislation in that it is not open to a single state to say, “We do not like the decision that the court has just made therefore we are now going to amend the right that is at issue”. I would be very worried if the protection of human rights in this country depended only on a statute of this Parliament, for which I have enormous respect. It would still mean that it would be capable of amendment, variation, revocation or removal if there were a parliamentary majority for that to take place. I am concerned that there is a risk that something as important as the protection of our fellow citizens could be subject to short-term political issues or the pressures of newspapers.

My third concern is the detail: the devil is always in the detail. I see from the commission’s conclusions that:

“The majority are agreed that such a Bill should have at its core the rights currently in the European Convention on Human Rights … That does not necessarily mean, however, that they would have to be written in identical language”.

I had exactly that issue when negotiating the charter. The question then was whether we should write the relevant rights and obligations in the same terms used in the European convention or use different language. As soon as you use different language, any lawyer will find a difference in the meaning intended. I do not know how it is to be done because we do not know what the detail of a new Bill would be, but there is a real risk that the rights written—allegedly not in non-identical language but protecting the same rights—would not actually be protected. When I was in office and debated the European convention with my opposite numbers I used simply to ask which of the rights in the convention they did not agree with: the right to a fair trial, the freedom of speech, freedom of association, the prohibition of torture, the prohibition of inhuman and degrading treatment. When one analyses that—given that the rights concerned are basic rights, rightly put into place following the horrors of the Holocaust—it is difficult to rewrite this in a way which does not risk removing those rights in some respect. If that is not the intention I do not see the point of rewriting it, and that worries me a great deal.

My final point is that I share the views of those who have said that it would be very good if more could be done to try to explain how the Human Rights Act and the European convention work. There are myths and misconceptions; we came across a lot of them in the time that I was in office. For example, there was the allegation that an escaped burglar was provided with food when he escaped because of his human rights, when it was nothing at all to do with that. In fact, it was not food but drink; it is a jolly good way to get somebody down from a roof, to ply him with a lot of drink—non-alcoholic drink, of course, although maybe with alcoholic drink it would have been even faster. Lots of stories were promoted, and came across in the newspapers about events said to have taken place, but they were simply not the case. There is a huge amount of misconception.

I worry about the things that the present Government say that do not illustrate a complete understanding of the Act. This is not the first time that I have said this, but I was troubled by what the right honourable Mr Grayling, the Lord Chancellor, said in relation to the prisoner votes debate—that it was open to this Parliament to ignore a decision made in a case to which the United Kingdom was a party. Under the Human Rights Act it is perfectly true that, when it is a decision in relation to another country, our courts are required only to have regard to the decisions. However, none of that takes away from the obligation that this country has, having entered into an international obligation, to follow the decisions of the court when they are made against us.

Others will speak with more authority about the work of the commission, but I am grateful to noble Lords for listening to me.