Bill of Rights

Lord Paddick Excerpts

Thursday 23rd June 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

At Oral Questions earlier today the noble and learned Lord, Lord Bellamy, described the Bill of Rights as a better balance between the judiciary and the legislators, between UK judges and Strasbourg and between rights and obligations. We will have ample time to test that aspiration when the Bill comes before this House, probably in September, but this is more than a rebalancing of the scales; it is potentially a practical reduction in the ability of victims to get a remedy through the ECHR framework.

I shall start with one practical example, which is the Worboys case. Over six years, the black cab rapist John Worboys raped and sexually assaulted more than 100 women. Relying on the positive obligations under Article 3—the right not to be treated in an inhumane and degrading way—two of his victims challenged the Metropolitan Police’s failures to bring Worboys to justice and stop his attacks. A UK court held that, thanks to the Human Rights Act, the police are under a legal duty to take reasonable steps to investigate credible allegations of serious crime. The question for the Minister is: why does the Lord Chancellor want to remove these positive obligations that have been used by victims of crime to seek justice?

There are other examples, but it is right to focus on the victims of this proposed legislative change. The other examples that are very much in the public domain are the Hillsborough disaster, Deepcut Barracks and the issues raised about “Do not resuscitate” notices. There is real fear that this so-called rebalancing of the scales will lead to a diminution of the remedies practically available to victims.

There are other serious implications of this legislation. The situation in Northern Ireland was alluded to earlier today. This is an in-depth and complicated question, but is the Minister willing to go further and reflect on the potential implications of the Bill for the Good Friday agreement?

The chairs of the Public Administration and Constitutional Affairs Committee and the Justice Committee in the other place, the Joint Committee on Human Rights and the Constitution Committee have all written to the Lord Chancellor asking that he submit the Bill of Rights for pre-legislative scrutiny. Can the Minister explain why the Lord Chancellor is refusing to use this legislative opportunity?

The Lord Chancellor claims that these proposals will put the Supreme Court in the driving seat, but, if the UK remains a signatory to the ECHR, it will follow the Strasbourg court’s rulings, within the margin of appreciation afforded to all national courts. Given that we will still ultimately have to follow the ECHR within the margin of appreciation, what do the Government’s proposals actually change?

There are a lot of questions about this legislation. There is huge expertise in this House, and I am sure that the noble and learned Lord himself has considerable expertise in this matter. But there are profound questions about the practical impact on victims and their ability to access the human rights framework.

[Lord Paddick (LD)]

My Lords, I hope the House will forgive me, but I am neither a lawyer nor a historian—I gave up studying history at 1066—so I would be grateful if the Minister could correct me if any of my observations are erroneous.

In his 1859 book On Liberty, John Stuart Mill talked about the tyranny of the majority—an inherent weakness in majority rule, in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions. As I understand it, the origins of the European Convention on Human Rights are from when the democratically elected German Parliament passed the 1933 enabling Act, which enabled the Chancellor to bypass the system of checks and balances in the Government and the laws created under them, allowing actions that could explicitly violate individual rights prescribed in the Weimar constitution. Perhaps more accurately, it could be said that the Chancellor decreed that certain people were no longer citizens and therefore did not have the rights given to them under that constitution. After the war, this led Winston Churchill to ask predominantly British lawyers to draft the European Convention on Human Rights, not least because the sovereign will of a democratically elected parliament needs a backstop of universal human rights to protect the individual from the state and the tyranny of the majority. Churchill reportedly said that

“it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time”—

this was presumably before he knew about proportional representation.

I also welcome the Minister’s appointment to the Front Bench. He will no doubt say that the UK will not leave the European Convention on Human Rights but will just ensure that it is interpreted in accordance with what Parliament says it means and how British courts interpret it. This is where I get somewhat confused. My understanding is that the Government propose to allow British courts to ignore European Court of Human Rights case law, if they disagree with it, but that individuals will still have the right to take their case to the European Court of Human Rights, which will take account of its own case law. Other than wasting thousands of pounds of taxpayers’ money on fighting cases in Strasbourg that could have been settled in UK courts, what is the point of UK courts ignoring the European Court of Human Rights, if the next stop in the appeal process is the European Court of Human Rights?

The whole purpose of international conventions, and of sovereign countries signing up to them, is to ensure that the rights that they confer are universally applied. The UN refugee convention is slightly different, in that there is no court of arbitration or international court to adjudicate where different sovereign countries interpret the convention in different ways. But, in the Nationality and Borders Act, the Government effectively said, “This is the British Parliament’s interpretation of the UN refugee convention, and British courts must abide by what Parliament says the convention means.” The Government have said that rights conferred by the UN refugee convention do not apply to class 2 refugees—that is, to those whom Parliament, through the Act, has said are excluded from those rights.

In the absence of the equivalent of the European Court of Human Rights for the UN refugee convention, it will be for British courts to decide on the legality of the Nationality and Borders Act. However, that approach will not work—or that is my understanding—with the European Convention on Human Rights, because there is an international court that arbitrates on ECHR cases. How does the approach work—that the UK Parliament is sovereign and British courts will interpret the European Convention on Human Rights in accordance with what we say—if the UK remains a signatory to the European convention and subject to the rulings of the European Convention on Human Rights? Can the Minister also say whether the UK Parliament being sovereign means the Westminster Parliament or the Scottish and Welsh Parliaments? What happens if those Parliaments refuse to pass legislative consent Motions?

One of my favourite expressions is that of the late Magnus Magnusson, the former host of “Mastermind”, who described a difficult question as one you do not know the answer to. Perhaps we should now add that the European Court of Human Rights going beyond reasonable interpretation of the convention is a case where the British Government disagree with that court. In other words, is this Bill of Rights without any real substance, or the end of universally applicable human rights in the UK? This Government have tried to end universally applicable human rights for refugees. Is this the Government’s attempt to extend that ban to every citizen?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

I thank noble Lords for those remarks, which are very sincerely put forward and entitled to deep respect on this side of the House. In due course, if and when the Bill reaches this House, we need to grapple with all those points. If I may, I should like to deal quickly with the points made and then see whether I can expand a little on what I was saying this morning about the constructive balance that this legislation seeks to achieve. In response to the noble Lord who asked whether this was the end of human rights as we know it or whether the Bill did not do anything, I think the answer from the Government’s side is that we are trying to strike that constructive balance in the middle.

Forgive me if I omit some points, but I shall take them very quickly. On the Worboys and Hillsborough points, and those related matters, the Government take Articles 2 and 3 extremely seriously and it is not the intention to weaken them. In relation to positive obligations, the focus of those provisions is what one can call the extended jurisprudence, which extends into what one can call socioeconomic rights—social benefits, clean air and all those related matters, which in the Government’s view are primarily a matter for Parliament and not the judiciary or to be addressed under this human rights legislation.

I am sure that we will come to Northern Ireland in more detail in due course. The Government are quite satisfied that the provisions of the Bill are compatible with the Good Friday agreement and other relevant Northern Irish considerations. As for pre-legislative scrutiny, the Government have consulted fully on the Bill; the consultation included draft clauses, and it seemed appropriate for the Government to proceed as they are now proceeding. A main emphasis of the Bill is to underline, and encourage UK courts to take advantage of, this margin of appreciation. As a result of the initiative taken by the UK in establishing the Brighton declaration, which took effect only in August last year, the principle of a margin of appreciation and subsidiarity are written into the convention.

It should be appreciated that, in 1950, Winston Churchill and the others who were engaged in this matter did not think that they were abandoning parliamentary sovereignty; they just did not. They thought that they were conferring on a court the ability to interpret a convention but they did not by any means reach the point that this Parliament was surrendering its sovereign right to legislate as it saw fit. We can get into detail with John Stuart Mill, what happened in the 1930s and all that sort of thing, but we are now in 2022 and faced with the present legal situation.

Having made those brief comments on the points already made, I would like to see whether I can make good my earlier point on constructive balance. First, let us take the things in this Bill that do not change. We remain in the convention. The convention rights are still protected in domestic law. Public authorities continue to be obliged to act in accordance with the convention unless there is superior primary legislation to the contrary. People will still be able to rely on their rights in any court or tribunal; if there is a question later about the so-called permission stage, I will deal with it then. UK domestic higher courts are still able to give a declaration of incompatibility with the convention; it will then be for Parliament to resolve what will happen next. Claimants who have exhausted all their local remedies in the domestic jurisdiction are still able to go to Strasbourg. It may not happen very frequently— personally, I suspect that it will not happen—but that opportunity is still there. Article 46, which was mentioned this morning, is still there.

In the occasional case where there is a finding that the UK is in breach of the convention, there is necessarily a political settlement through the Committee of Ministers procedure to find ways of ensuring compliance with the convention. In this context, I do not use the word “enforcement” because one does not really talk about enforcement of the convention; ways of compliance are traditionally found through political action in the Committee of Ministers.

All that remains as it has been. So what is changing? That is the second part of my explanation. In the Bill, it is clarified that the domestic courts are not bound to follow the jurisprudence of the Strasbourg court. As far as I know—I am happy to be corrected—it has never been the case that the decisions of Strasbourg are considered binding in a general sense. They may be binding in an individual case against an individual state but the general jurisprudence is not binding and the ability of domestic courts, whether in the UK or another member state, to diverge from the jurisprudence is recognised and established under the convention.

That was certainly the position of Sir Peter Gross in his independent review. That distinguished review and the panel who assisted Sir Peter, to whom I take this opportunity to pay tribute, recommended that UK law, including common-law legislation and Scots law, should take centre stage—that was the phrase used—and that it should be recognised that UK courts have the right to diverge from the generality of Strasbourg jurisprudence. That is something that the Government are acting on; it is what is currently in Clause 3 of this Bill and is in Section 2 of the Human Rights Act. So that is the first thing.

Secondly, the courts will not be required to rewrite legislation as they are required to under Section 3 of the existing Act to make it compatible with convention rights. Thirdly, and of great importance, particular weight is attached to freedom of speech under this Bill and there is greater protection for journalistic sources. Courts will not, however, be able to impose new positive obligations on public authorities and will have to consider carefully the impact on such public authorities by applying existing ones. We can come back to that. There are other protections but I am already beginning to run out of time. It will be more difficult for foreign criminals to invoke Article 8 on the right to private and family life. There will be a permission stage and there will be various other procedural changes.

The final thing to mention in this list—I am sorry it is a long list—is that the Bill is excluding extraterritorial jurisdiction or military operations abroad, subject to there being in place comparable legislation to give effect to all our obligations under the laws of war and related points. This Bill is not abolishing human rights. It is preserving, strengthening and increasing democratic oversight. That is the Government’s case and I look forward to further detailed debate.