Human Rights and Civil Liberties

Lord Lester of Herne Hill Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, it is a great privilege to follow three such powerful speeches. I cannot match the eloquence of the speech just now from the noble Lord, Lord Cashman, but I hope that it will be read by members of his party and indeed of all parties and none after this debate. It is a pleasure to speak in the presence of the noble and learned Lord, Lord Irvine of Lairg, since it is he, more than any other Minister in the Labour Government, who takes credit for the Human Rights Act. I am very glad that he is here.

No law can save our human rights unless there is a culture of liberty that is deep-rooted and popular. Law is not a panacea. It has to enjoy public confidence and to be respected by Ministers in what they do as well as what they say. The Human Rights Act requires Ministers to state whether they believe a government Bill to be compatible with rights protected by the convention. It requires all three branches of government—Parliament and the Executive as well as the judiciary—to act compatibly with the convention rights. It preserves parliamentary sovereignty. Our courts may declare legislation to be incompatible with the convention, but may not strike it down. The Human Rights Act leaves it to the Executive and Parliament to choose whether and how to comply with a declaration of incompatibility, or to leave the claimant to seek redress in Strasbourg.

The Act requires our courts to have regard to Strasbourg judgments, but not to be bound by them. Our Supreme Court has been robust in recent years in subjecting Strasbourg reasoning to critical scrutiny, and explaining where it begs to differ. A valuable dialogue now takes place, and the judgments of our courts are influential in Strasbourg.

Today the main threats come from a Government of zealots. If they succeed in doing what they threaten to do, their legacy will be to have weakened the protection of human rights and undermined the culture of liberty. The newly elected Government, unrestrained by their former coalition partner, threaten to tear up the Human Rights Act and replace it with a weaker British Bill of Rights that may not be anchored in the convention. They also threaten to ignore judgments of the Strasbourg court with which they disagree, undermining the rule of law here and across Europe.

The new Lord Chancellor and Justice Secretary, Michael Gove, is in charge of human rights policy. His predecessor, Chris Grayling, and the Home Secretary, Theresa May, are hostile to the Human Rights Act and to the Strasbourg court. So is Michael Gove’s junior Minister Dominic Raab, as he showed in replying to the Westminster Hall debate on Tuesday. On 23 June, Dominic Raab told the Commons that the Government’s,

“plans do not involve us leaving the convention”,

but he added that,

“our No. 1 priority is to restore some balance to our human rights laws, so no option is off the table”.—[Official Report, Commons, 23/6/15; col. 748.].

On Tuesday, he again told the Commons the same thing. I ask the Minister to explain quite unequivocally whether leaving the convention is or is not on the table as a possibility.

Were we to replace the Human Rights Act with something weaker and no longer anchored in the convention, that would be used by Europe’s pseudo-democracies in the former Soviet empire to justify flouting European human rights law. As the noble Lord, Lord Lexden, said in his powerful speech, it is dispiriting that a great political party that played an inspiring role under Churchill in creating the European convention system should be led by Europhobes who would weaken the effective protection of human rights by the European Court of Human Rights and even by our own courts.

I say that the Government are zealots because they know that they are right and are not interested in genuinely open dialogue with those who disagree. When the Prime Minister decided not to rush to introduce a Bill while striving to renegotiate the UK’s membership of the EU, I wrote to Mr Gove welcoming the decision and asked him to meet to discuss the issues. I received no reply, not even a formal acknowledgement by his private office. Mr Gove has issued guidance to his civil servants on the importance of writing grammatically in their correspondence. Further guidance is needed from the Prime Minister on the need for good ministerial manners.

Mr Gove told the Commons on 28 May that, because the Official Opposition and the SNP oppose the Government’s plans, they,

“have already ruled themselves out of the debate on reform that we need to have”.—[Official Report, Commons, 28/5/15; col. 292.].

That no doubt includes Liberal Democrats, because we strongly oppose the manifesto threats. Then, on 23 June, Dominic Raab told the Commons that the Government intend to consult,

“fully, including with the devolved Administrations, in due course”.—[Official Report, Commons, 23/6/15; col. 748.]

I hope the Minister will explain in his reply how he squares that with Michael Gove’s statement. Can he tell us the discussion that Michael Gove had with the Justice Minister in the Scottish Government last week, and whether it included the Government’s human rights plans?

I served as a member of the Commission on a Bill of Rights that reported in 2012. The Minister was a fellow commissioner. You had to be a masochist to serve on that commission. He wrote a separate paper with another Conservative commissioner, Jonathan Fisher QC, in which they attacked the Strasbourg court for what they regard as undue judicial activism and suggested that the cause of human rights would be better served by withdrawal from the convention so as to free it from the strictures of the court.

Their approach was embodied in the Conservative election manifesto. Before those pledges were made, the Prime Minister removed Dominic Grieve as Attorney-General, who explained in the debate this week that the Human Rights Act has conferred,

“huge benefits on this country”.—[Official Report, Commons, 30/6/15; col. 410WH.]

The former Solicitor-General, Sir Edward Garnier, said in the same debate that,

“the political reality is that there is no majority in this House”—

that is, the other place—

“and there certainly is not in”,

the House of Lords,

“for a repeal of the Human Rights Act—still less for our removal from the European convention”.—[Official Report, Commons, 30/6/15; col. 418WH.]

Dominic Raab is concerned that what he calls “rights inflation” has diluted personal responsibility. The only example he gives is of a claim that failed, and he complains that the Human Rights Act has exposed us unnecessarily to too much “judicial legislation”, as he puts it, in Strasbourg and at home. These criticisms are not, in my view, fair or reasonable.

This Government threaten not only our culture of liberty and respect for the European rule of law but the unity of the UK. However much the Government say they will consult the public, they are guilty of at least the appearance of prejudgment and a lack of interest in seeking a consensus on what are major constitutional issues. If the Government go ahead with their plan to tear up the Human Rights Act and flout judgments from Strasbourg with which they disagree, they will face deep hostility in Scotland, Northern Ireland and Wales and, I dare say, much of England, too. The public will not welcome a weakening of the legal protection of their fundamental rights, and the unity of the nations will be undermined.

If Michael Gove was serious about a one-nation justice policy, he would not adopt the policy that he now seems to be pursuing. There is a crisis in what is a two-nation civil and criminal justice system. What use is the rhetoric of a UK Bill of Rights if only the wealthy and the powerful can enforce those rights in our courts?

--- Later in debate ---

[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—