British Bill of Rights

Lord McNally Excerpts

Thursday 20th June 2013 Lords Chamber

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, they say that they never come back, and yet there is the noble Lord, Lord Bach, back on the Front Bench in fine, feisty form, taking on a kind of Dame Nellie Melba role in the number of questions that he asks. He has also tabled a Question for me to answer in a few days’ time. The rather emotional goodbyes that I bid him a few months ago were perhaps premature. Although some of his closing themes were familiar from our debates over the past two years, I shall not follow him down that path, because we will have other opportunities to do so.

I was grateful for the tribute that the noble Lord paid to the Cook-Maclennan reforms. Certainly, the success of that first Labour Government from 1997 to 2001 owed very much, as my noble friend Lord Lester said, to that blueprint setting out much of the constitutional reform during that period. I believe that when future historians come to review that period, they will agree that that burst of quite extraordinary reform started to peter out only when the Government departed from the Cook-Maclennan blueprint and began increasingly to rely on ideas usually prepared on the back of an envelope by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Prescott.

This has been an excellent debate. The noble and learned Lord, Lord Goldsmith—the late Lord Goldsmith—posed the question, “Which human rights are you planning to repeal?”. It is a legitimate question to ask those who seek change. The debate was made all the healthier by the noble Lord, Lord Faulks, who produced with characteristic clarity what I would call the case for the prosecution. He asked specifically whether membership of the EU and membership of the European Convention on Human Rights were compatible—whether we could withdraw from one without affecting our membership of the other—particularly given the ECHR case to which he referred. My officials advise me that this is a moot point. I find it to be an extraordinarily moot point, because I have always understood that one of the qualifications for membership of the EU was observance of the European Convention on Human Rights.

In recent years, I have had the opportunity to visit a number of countries that, in working towards membership of the European Union, have been set high hurdles by the EU in terms of human rights observance. One of the great triumphs of the EU is how, by insisting on those high hurdles, it has moved human rights eastwards across Europe. On 1 July, we celebrate the latest addition to the European Union, Croatia. After a terrible war, it has been the European Union and its insistence on high standards in the rule of law that have prepared Croatia for its rightful place in the European family, a family that is resting on the ECHR.

I understand the points about how human rights have suffered by appearing to delve into trivialities. However, as a number of speakers have pointed out, the media often attribute to human rights reasoning and causes that have nothing to do with the actual Human Rights Act. This is rather like health and safety and data protection legislation, which I also support. When the media talk about a pancake race that has been cancelled by health and safety rules, I like to count the number of deaths that have been prevented on building sites by those rules. That is when these rules bite. Similarly, we only have to open the newspaper every day to realise how important data protection rules are in a modern society.

I welcomed the spirited exposition of the noble Lord, Lord Faulks, which stimulated responses in others, and I will try to cover a number of the issues that were raised. I was extremely grateful for the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because he counterpointed the noble Lord, Lord Faulks, in warning us of the complexities of trying to write a UK Bill of Rights. There is always a danger that, if you make a speech that is slightly out of step with your party, everybody else praises you, so I hope that it does not do the career of the noble Lord, Lord Gold, too much damage to say that I found his intervention extremely helpful with its warning of a backward step and reference to the problem of public understanding.

The noble Lord, Lord Bach, and the noble Baroness, Lady Kennedy, both seemed to imply that there was some secret about the origins of the Bill of Rights commission. This Government were formed as a coalition between two parties that have, in recent years, taken a different view about the Human Rights Act and the part that the European Court in Strasbourg, and the European Convention on Human Rights it interprets, should play in our national law. The response of the new coalition Government was twofold. We established the commission, of which the noble Lord, Lord Lester, was a distinguished member, as was the noble Baroness, Lady Kennedy, and the noble Lord, Lord Faulks, and we embarked on a programme of reform of the Strasbourg court that culminated in the Brighton declaration.

I have also said that I do not consider the Human Rights Act to be a precious vase, to be kept on a high shelf, never to be taken down or examined for fear of breaking it. I agree with the noble and learned Lord, Lord Woolf, that well informed debate about human rights is extremely healthy. I welcome, particularly in this House, our periodic examination of human rights and their place in our society—the noble Lord, Lord Bach, referred to the one such review led by the noble and learned Lord, Lord Irvine of Lairg, a couple of years ago.

I hope that the House will keep on returning to this subject, because, like the noble and learned Lord, Lord Woolf, I remain confident that such an examination invariably concludes with a reaffirmation of human rights as something deep in the political DNA of the British people and of our history. The noble Lord, Lord Lester, reminded us of the relevance of Magna Carta, the 800th anniversary of which we celebrate in 2015. That linkage between our history and the growth of the concept of human rights was underlined, as the noble Lord, Lord Judd, reminded us, when Eleanor Roosevelt launched the UN Declaration of Human Rights and called it a,

“Magna Carta for all mankind”.

The world needed no explanation of what she meant. She was part of that “never again” generation who had experienced the horrors of when state power goes unchecked and human rights are subjugated to the power of the state or some perverted political doctrine. The noble Lord, Lord Judd, is right: that generation, whether it be the noble Lord, Lord Healey, or Ted Heath, or others who came back from that war, had a “never again” determination that impacted on the legislation that they brought forward and the themes that they espoused.

Let us be clear that human rights and civil liberties are not some foreign invention. They are deeply rooted in the history of the people of this country. Upholding them should be a source of national pride. As the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Gold, pointed out, too many people do not fully comprehend the impact of human rights on their daily lives, and myths and misreporting about human rights are often accepted as fact. If we look beyond the sometimes skewed perceptions, we see that the Act is a measured piece of legislation when understood and used properly. The noble Baroness, Lady Kennedy, cited some very good examples of human rights in action and I could give others. As the noble Lord, Lord Faulks, said, human rights are not a matter of abstractions; they are about realities. It is not an airy-fairy notion reserved for philosophy seminars but the practical interaction between the state and its agencies and those they should serve.

The message from this debate is that it is your human rights, my human rights, our human rights. Perhaps that could be no better illustrated than by the fact that, when the Daily Mail felt that it was under attack by Lord Justice Leveson, the editor cited his human rights in protection. For me, it proved that there must be a God.

While reflecting on judgments, we should note our actual Strasbourg record. As the noble Lord, Lord Lester, reminded us, the number of applications involving the UK that resulted in a judgment by the European Court of Human Rights is small. In 2012, there were only 10 judgments finding violations against the United Kingdom out of over 3,300 applications. Our record on implementation of judgments is generally good: from March 2010 to May 2013, the United Kingdom completed the implementation of 82 judgments, with just 22 outstanding. One highlight of my ministerial career was when, in May 2012, I sat in front of the United Nations Human Rights Council in Geneva being held to account for the UK’s human rights record.

The UPR mechanism offers the Government real opportunities to consult civil society organisations and our national human rights institutions. Through open discussion with them, we build an understanding of where we should focus our efforts on key human rights issues; this dialogue allows them to monitor our progress. We have also gone digital. On top of stakeholder events, everyone now can send us online submissions via our website. All this ensures that we remain connected to, and aware of, human rights issues as they affect real people. We aim to use the information gathered from our engagement with civil society and through online submissions to help to shape how we respond to the United Nations in our mid-term review next summer. This approach pays dividends in engaging people in human rights. It helps us to focus our efforts and enables civil society to monitor our progress. Generally, our approach to the review was one of openness, celebrating success where we can but being receptive to challenge. We have had very positive feedback from civil society organisations in the UK on our engagement strategy.

Also in May, the United Kingdom was examined against our obligations under the United Nations Convention Against Torture. We will consider the recommendations carefully before responding. That was a point made by the noble Lord, Lord Faulks. It is not just a matter of the ECHR. In a world of interdependability, we are part of a whole range of conventions and commitments, by which we test Governments’ behaviour.

As I said, undergoing such scrutiny is necessary and proper to ensure that the United Kingdom is fulfilling its obligations under the Human Rights Act and that the Act itself is fit for purpose. It was with this in mind that the Government put forward plans for the Commission on a Bill of Rights. On behalf of the Government, I express thanks once again for the dedicated work of all those associated with the commission, culminating in the publication of its final report. Like others, I pay particular tribute to Sir Leigh Lewis, as chairman of that commission. My view is that the only job that he is otherwise qualified for is leading the Liberal Democrats in the House of Lords, because he has all the same attributes, as we have seen today—he had some fairly big personalities to keep in check.

I remind the House of some of the commission’s key conclusions. A majority of the commission concluded that there is a strong argument in favour of a UK Bill of Rights. However, that was on the basis that any such Bill would need to incorporate and build on all the UK’s existing obligations under the European Convention on Human Rights and that it would provide no less protection than is currently contained both in the Human Rights Act and in the devolution settlements. Both the noble and learned Lord, Lord Brown, and my noble friend Lord Gold made powerful arguments about whether that was the right way forward. This finding was in line with the commission’s terms of reference. The majority saw the current lack of public ownership of the Human Rights Act and the European Convention on Human Rights as the most compelling reason in favour of a new Bill of Rights. However, as my noble friend Lord Gold reminded us, even if it were to be carried through, it might not solve this problem of public understanding and acceptance.

Some of those in the majority who favoured a Bill of Rights felt that any new Bill could usefully define the scope of some rights more clearly and adjust their balance. However, as the noble Baroness, Lady Kennedy, has told us, she and Philippe Sands concluded that the commission’s consultations and its deliberations had failed to identify any real shortcomings either in the existing Human Rights Act or in the way in which it is applied to the domestic courts. They were concerned that any move towards a Bill of Rights would lessen the rights protection that is currently available and would potentially be a first step towards the United Kingdom withdrawing from the European Convention on Human Rights.

Although the commission was unable to reach agreement on all its conclusions, it identified and reported issues that would need careful consideration before any changes were made to the UK’s legal framework for human rights. I disagree with the noble Lord, Lord Bach, and some of the distinguished academics. I think that any political party looking forward and working on its policy on this issue, and any Parliament looking at it, will find the commission’s work an exercise in ground-clearing and testing of arguments that will stand us in good stead for the future.

My noble friend Lord Maclennan reminded us, as did the commission, of the background against which this discussion is taking place. Next year we will definitely have to make a very clear decision about the future of this United Kingdom. The evidence showed—and there was unanimity on this—that to discuss any changes to the Human Rights Act before we have made that fundamental decision about the union would not be very sensible or constructive.

It is interesting to note in passing that, although we think that perhaps the other place is more hostile and more populist, when a 10-minute rule Bill to repeal the Human Rights Act was put forward in the other place by Richard Bacon MP last December, it was defeated by 195 votes to 75. I just do not believe it is true that there is some great populist seething hostility to the Act. I think the more that people understand it and the more it is put to them in positive terms, the more support there is for it.

My noble friend Lord Maclennan and the noble and learned Lord, Lord Woolf, both mentioned the Brighton declaration. I am very proud of what we did at Brighton—I think that we addressed some very real problems. The noble and learned Lord, Lord Woolf, mentioned his own work in suggesting ways in which the effectiveness and efficiency of the court could be improved. I hope that there is good news for him. Better late than never, at the recent meeting in Strasbourg the court accepted a number of the recommendations in the noble and learned Lord’s report. I would not presume to suggest that the legal system sometimes moves very slowly, but it gets there in the end. On Monday, our ambassador in Strasbourg will, on behalf of the UK, sign Protocol 15 to the convention, which implements the amendments to the convention agreed in the Brighton declaration. We are continuing to press for reforms of the Strasbourg court in a way that we think will give it better credibility and lead to greater efficiency. However, I entirely share the opinion of the noble and learned Lord, Lord Woolf, that this is a matter where we can achieve change and improvement, although this is work in progress.

Looking forward, as I said, I do not believe that this Government or this country have anything to apologise for in their record on upholding human rights. Nor do I think that at heart there is fundamental disagreement on the need to uphold human rights and the rule of law. I tend to agree with the noble Lord, Lord Judd: I do not want to pin party labels on this matter. We have, as I said, concepts of human rights that are rooted deep in our history and deep in our national psyche. Let us not be afraid of debating human rights with vigour and candour. However, let us do so in a way that also takes account of the very real leadership role that we play in this area. The world does look and listen when we debate these issues, so let us be sure that we are sending it the right messages.

I applaud the way in which the Foreign Secretary has used soft diplomacy and consistency of message to promote and support human rights around the world. Both my noble friend Lord Faulks and the noble and learned Lord, Lord Goldsmith, referred to the fact that we carry weight and influence in these matters. The Foreign Secretary can promote human rights because our own reputation for observing and promoting human rights still stands high. However, observing and upholding human rights is always work in progress.

In his closing remarks, my noble friend Lord Lester referred to the 800th anniversary of Magna Carta in 2015. Although she is not in her place at the moment, a few weeks ago the noble Baroness, Lady Ramsay, reminded me of something that was a surprise to me. Those gentlemen up there who look down on our deliberations are the Barons of Runnymede. They remind us of the 800-year journey that this country has taken in setting limits to the power of the state and the responsibility that we all bear to uphold what the late Lord Bingham referred to as the spirit of Magna Carta. I think that that is what we have been doing today and I thank my noble friend Lord Lester and all noble Lords who have taken part in what has been a debate of great quality in the best traditions of this House.

I am extremely proud to be the Human Rights Minister in this Government. I work very closely with my colleague Damian Green on this matter. This has been a healthy debate. I suspect that the next stage of it, as far as any legislation is concerned, will depend on the outcome of the next general election—it will be incumbent on all the political parties to take their views on the Human Rights Act and its future to the hustings. I think that I know where we will be and I look forward to this ongoing debate.