European Convention on Human Rights

Lord Lester of Herne Hill Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I salute the noble and learned Lord, Lord Irvine of Lairg, for his courage and liberalism. It is probably not generally understood that when he was Lord Chancellor there was a sustained campaign by the media to obtain a complete exemption from the Human Rights Act. I helped the noble and learned Lord to stand up against that. Section 12 of the Human Rights Act, which was introduced by the noble Lord, Lord Wakeham, was the compromise that we secured to achieve the passage of the Bill. First, I salute the noble and learned Lord, Lord Irvine, because he paid a personal price for his courage. The media campaign against him was not about the price of wallpaper or whether he peeled his own oranges, but came very much from straight hostility to him for standing up against this completely misguided media campaign. I emphasise that at the beginning.

Secondly, I very much regret the fact that the previous Government refused my repeated requests to publish the preparatory work on the Human Rights Act. I will probably not live long enough to see the full record. However, on this issue the public would find it very beneficial to see that the noble and learned Lord, Lord Irvine of Lairg, was the true architect of the Human Rights Act, although his colleague, the right honourable Jack Straw, would contest this. I hope it may become possible to see that record published.

Thirdly, one of the ingenious provisions of the Human Rights Act, to which the noble Lord, Lord Hart, just referred and which none of us thought significant at the time, was the obligation on Ministers, under Section 19, to make a statement on the compatibility of a Bill. That, coupled with the work of the Joint Committee on Human Rights—like the noble Lord, Lord Dubs, I served on that committee—has meant that instead of human rights being the property of judges and lawyers, they have been made part of the other two branches of government, the Executive and the legislature, through the scrutiny of Ministers’ statements and reasons why particular measures are or are not compatible with the convention. New Zealand has a weak version of that but no other country that I know of, in the common law world or beyond, has anything like the Joint Committee on Human Rights or that compatibility statement. It is admired across Europe and there are suggestions that it should be adopted elsewhere. It is a very important part of our legislation.

Another very important part is the compromise between parliamentary sovereignty and effective legal remedies. My original Private Member’s Bill on human rights sought to give judges the same power that they have under European Union law to strike down inconsistent legislation. The judges came to me and said, “We don’t need that and the Commons will never allow it. Why not do something more moderate?”. The declaration of incompatibility was invented to reconcile parliamentary sovereignty with the need for effective remedies. That was wise and my first efforts were misguided in terms of our own legal system. Much money—£6 million—was spent on training every judge, magistrate and tribunal chair for two years before the Human Rights Act came into force. One of the master strokes was the appointment of Lord Bingham as president of the Supreme Court—or the Law Lords, as they then were—to lead our most senior court, which he did magnificently. We miss him very much today.

It is very important for our judges, lawyers and the public at large to approach European convention law through our law and not around our law. By that I mean that it is very important to make what we regard as European convention rights, but are in fact British rights, part of the fabric of our legal and political system, and not to tear holes in that fabric. I believe that much of that has been done by our judges already, but perhaps more needs to be done to protect our common law traditions in a way that is compatible with the convention. Like the noble Baroness, Lady Kennedy of The Shaws, I am privileged to serve on the Bill of Rights commission. I assure the noble Lord, Lord Wills, that I would not be there if I thought there was the slightest risk of weakening the current protection of human rights. Indeed, if he does not mind my saying so, I spent 18 fairly futile months in his department trying to persuade the previous Government to do something rather similar to what I hope the commission might eventually achieve. This is an area in which political parties sometimes do well. We were a coalition in opposition, were we not, in the 1990s in seeking to get the Human Rights Act on to the statute book. I was on the Cook-Maclennan commission at the time, as was the noble Lord, Lord McNally.

One of the terms of reference of the new commission is to look at the reform of the Strasbourg court. Since I have been arguing cases there since 1967, I think that I understand the weaknesses, as well as the strengths, of the system. Suffice it to say that in my view, if we really want change, there is a need not only for fundamental reforms of some aspects of the court and its procedures, but for more human and financial support. Unfortunately, there is zero growth and even the meagre resources devoted to the court, compared with the much greater ones for the Luxembourg court, have been held up by the Interlaken process. The noble Lord, Lord Tomlinson, nods. There were to be at least new staff, resulting in more effective case management, but that has been put in the freezer pending the Interlaken process. That is quite ridiculous. The resources, having been voted, should not have been held up in that way. Like the noble Baroness, Lady Kennedy, I and others, will be going to Strasbourg and thinking about reform of the court. I very much welcome the fact that the terms of reference allow us to do that.