Human Rights and Civil Liberties

Lord Marks of Henley-on-Thames Excerpts

Thursday 2nd July 2015 Lords Chamber

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

My Lords, we have had a very strong debate, at a time when the Conservatives’ manifesto commitment to,

“scrap the Human Rights Act and introduce a British Bill of Rights”,

appears at least to have softened. The Government are now to bring forward proposals and there is to be a consultation. Will the Minister clarify what is intended? Will we have an open consultation seeking ideas for a new Bill or will it be based on a set of proposals or a draft Bill? While there may be advantages in saying what is proposed, there may also be benefits in inviting broader new ideas. I hope that the Minister will also respond to my noble friend Lord Lester’s invitation to confirm that the Government will not leave the European Convention on Human Rights. If so, it must follow that the Government accept our convention obligation to comply with the decisions of the European Court of Human Rights in Strasbourg.

During the debate on the Queen’s Speech, the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place today, said that the failure to implement the court’s decision on prisoners’ voting rights had left our obligation,

“in suspense in the sense that it has not been complied with”,

and he expressed,

“great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound”.—[Official Report, 1/6/15; col. 179.]

I share that anxiety. The noble and learned Lord suggested a possible way forward. It might be possible, he said, to negotiate an amendment to the convention for a country such as the United Kingdom in which the courts have no power to strike down legislation, permitting Parliament to resolve not to implement a decision of the court for stated reasons. That suggestion has generated considerable discussion, which is not surprising considering its provenance. I hesitate to disagree with the noble and learned Lord but, on reflection, I have three reasons for not pursuing his suggestion.

The first is purely practical: I doubt that other contracting states would agree to it; indeed, I see no reason why they should. Secondly, given the United Kingdom’s traditional international leadership on human rights, we should not be trying to negotiate what is essentially an opt-out from the convention. Thirdly and most importantly, it is precisely because the United Kingdom is bound by its obligation to comply with the court’s decisions that the convention acts as an effective international guarantee of our human rights, particularly given that our courts cannot strike down incompatible legislation. The danger of Governments securing parliamentary approval for non-compliant government action when they dislike decisions of the Strasbourg court is something we should be vigilant to avoid.

The noble Lord, Lord Cashman, movingly emphasised the point that human rights are needed to deal with exactly those rights the Governments do not like. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made the same point, with a very large number of examples, in a different but equally effective way.

If this proposal is to proceed, a new Bill must preserve the careful balance found in the Human Rights Act between Parliament and the courts whereby the courts are bound to interpret legislation in a way which is compliant with the Act where they can but, where they cannot, have the power not to strike down legislation but to grant declarations of incompatibility, leaving Parliament to make the final decision as to whether to change the law. This careful balance, mentioned by my noble friend Lady Ludford, is part of the genius of the Human Rights Act. Will the Government retain it?

Any new Bill must also ensure that the existing United Kingdom jurisprudence on the convention is preserved. The noble and learned Lord, Lord Hope of Craighead, memorably described it in the Queen’s Speech debate as embedded in our law like Japanese knotweed, an analogy so graphic that he should perhaps be forgiven its pejorative overtones. The Commission on a Bill of Rights established by the coalition Government was tasked with investigating the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights. The majority of the commission, including the Minister and my noble friend Lord Lester of Herne Hill, agreed that there should be a British Bill of Rights—although, as my noble friend pointed out, the Minister questioned the view that we should be committed to staying within the convention. The minority comprised the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands. They were concerned particularly that opening up this area might risk a reduction in the protection of human rights in this country. I share their concerns, and on these Benches we will be determined to ensure that any new British Bill of Rights continues to guarantee convention rights in United Kingdom law no less effectively than does the Human Rights Act.

If this proposal is to go ahead, we would like to see it as offering an opportunity to Parliament to entrench extra, distinctively British rights in a new Bill of Rights, as recommended by the Joint Committee on Human Rights in their 29th report in 2008. In the justice field, the right to trial by jury in serious criminal cases in England, Wales and Northern Ireland is fundamental. Would it not be fitting to mark the anniversary of Magna Carta by enshrining that right in a new Bill? We should also, I suggest, restate our commitment to administrative justice. The development of administrative law over recent decades has been one of the greatest achievements of the modern common law. Should we not therefore guarantee a right to administrative action that is lawful, reasonable and administratively fair? Such a right is entrenched in the South African constitution. We would also strongly support incorporating the United Nations Convention on the Rights of the Child in domestic law. At a time when mistreatment and abuse of children and their condemnation by government agencies has been the subject of such shame for some in this country, that step would mark our commitment to children in our society.

The consultation will provide an opportunity to consider incorporating fundamental social and economic rights, as the 2008 report of the Joint Committee suggested. Jurisdictions including South Africa, some in Scandinavia and some other European jurisdictions have done so. Fields which might be appropriate include healthcare, education and basic subsistence housing, subject to an “available resources” exception. In this way, I would hope that we might develop the Government’s proposals in a way which both meets the challenges facing human rights, presented by those who do not sufficiently value them, and defines and enshrines in law our commitment to many of the fundamental values that underpin our society. The fundamental point remains, however. On these Benches, we will oppose any attempt to reverse the incorporation of convention rights into domestic law.

My response to the noble and learned Lord, Lord Carswell, is that his solution of repealing the Human Rights Act while retaining the convention would involve limiting the citizens of this country to their remedies in Strasbourg, with all the expense and delay that that would necessarily involve. It would also remove the domestic courts and Parliament from their legitimate role in interpreting and enforcing convention rights within the United Kingdom. That role is preserved by the Human Rights Act, and Parliament and the courts are able to take their part in our system of human rights. That role is something which I suggest we should always preserve and cherish.