Human Rights and Civil Liberties

Lord Wallace of Tankerness Excerpts

Thursday 2nd July 2015 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That this House takes note of the challenges facing the culture of human rights and civil liberties in the United Kingdom.

[Lord Wallace of Tankerness (LD)]

My Lords, for decades, as a Liberal and Liberal Democrat candidate and MP, I supported campaigns to incorporate the European Convention on Human Rights into our domestic law. “Bringing Rights Home” was our call, and so understandably I welcomed the passing of the Human Rights Act 1998. However, it never occurred to me during all these years of campaigning that I would be the first government Minister in the United Kingdom to be on the wrong end of a decision under that Act—yet that is what happened on 11 November 1999.

As Justice Minister in the newly established Scottish Government, I had inherited a sheriff court administration which relied on temporary sheriffs to keep the system in working order. However, the Scottish Appeal Court ruled that because the Lord Advocate was involved both in their reappointment, or not, and was also head of the Public Prosecution Service in Scotland, temporary sheriffs could not be regarded as sufficiently independent of the Executive that an accused might have a fair hearing before an “independent and impartial tribunal”. As a result, I was forced to suspend every temporary sheriff in Scotland overnight.

I am not going to pretend: on that day I would much rather that the case had been won. Losing put significant pressure on resources and made for a time the operation of our sheriff courts more difficult. But here is the thing: in the cold light of day, the court was right. What was happening was wrong and, because of the Human Rights Act, it was put right. For all the difficulties this decision caused me, officials and, indeed, the public, I would rather live in a country were there is such a human rights check over decisions and actions of Ministers and the Executive than in a country where Ministers and the Executive can ride roughshod over basic human rights. This, I believe, shows the value of the Human Rights Act. As Liberal Democrats, we on these Benches are instinctively suspicious of government. We believe that the state has the power to improve people’s lives—but, equally, the power to damage them. Such power should not operate in a vacuum. There must be a check on the ability of the state to wield its power, even when its actions are carried out with the best of intentions, and there must be a check to protect individual citizens against the arbitrary use of state power.

This debate is about the challenges facing the culture of human rights and civil liberties in our country. My experiences as a Minister both in Scotland and in the coalition Government have given me some understanding of those challenges and the difficulties of balancing interests that sometimes compete with human rights and civil liberties, not least the need to keep the public safe. I do not pretend that it is always easy. The appalling events in Tunisia last Friday and our response to them have once again thrown into sharp focus the challenge of balancing liberty and security in an age when terrorism stalks the globe. The Prime Minister rightly argues that, armed with our values of justice, democracy, liberty and tolerance, we will prevail over hateful intolerance and its evil manifestations. But the challenge is to ensure that in doing so we do not undermine the very values that we cherish and seek to uphold.

The Home Secretary said in the House of Commons last week—it is pleasant to be able to agree with her—that,

“security and privacy are not … a zero-sum game”.—[Official Report, Commons, 25/6/15; col. 1085.]

It is incumbent on the Government to consider issues of privacy and liberty when promoting security and on those on our Benches to reflect the need for this balance and ensure that when we are promoting liberty and privacy we also take account of the interests of security.

I am sure that in this debate we will hear contributions about the communications data Bill—the so-called “snoopers’ charter”. All I shall say on this subject is that I can assure the Government that if they seek to introduce intrusive new laws, rhetoric and assertion by Ministers will not be a substitute for hard evidence that such measures are necessary and proportionate, not least given the recently published report by David Anderson QC, which found the operational case for a number of the proposals far from persuasive.

The ability to challenge the Government is a core part of our liberty and democracy, and one which we must seek to uphold. The European Convention on Human Rights may have been born in the aftermath of the war against fascism and in the face of the spread of communism, but it took the 1998 Act to allow people in Britain to vindicate their convention rights in British courts. I believe that that is something we should cherish and uphold. Let us be clear: when I say that the Human Rights Act gives us the ability to challenge the state, I do not mean in some sort of philosophical debate; I mean on ordinary, day-to-day issues that people often take for granted.

The right to life is not just about life being protected by the state. The right has ensured justice for the families of victims of domestic violence and the families of hospital patients who were not properly supervised and who then tragically took their own lives. The prohibition on torture has ensured that the use of restraint on an older woman in hospital was able to be challenged and that authorities are accountable for failing to protect children who are being abused. The right to liberty and security has ensured that people with mental health problems are not unlawfully detained.

The right to a fair trial or hearing was used by a mother who had suffered mental health problems and had her child taken into care. The court found that the council’s attempts to delay her re-establishing contact with her child and its failure to notify her that the child was already placed with an adoptive family constituted a breach of her right to a fair hearing. The right to respect for private and family life has often been lamented in the press as a block to deporting foreign criminals. But this right helped a couple who had been married for 59 years to live in the same nursing home when their local authority threatened to move one of them to a nursing home too far away for the other to visit. It also secured proper support from a local authority for a child with Down’s syndrome.

Freedom of expression was perhaps most famously protected by the European Court of Human Rights reversing a unanimous decision of the Judicial Committee of your Lordships’ House in the early 1970s and thus allowing the Sunday Times to expose the thalidomide scandal and pave the way for compensation for its victims and their families. Freedom of assembly and association has protected the rights of people to join a trade union and engage in union-related activities. The right to marry has ensured that the needs of transgender people are accommodated by requiring the Government to issue a new birth certificate. The prohibition on discrimination ensured the right of unmarried couples to adopt and has been used in numerous cases to protect disabled people.

I cite these cases because they are examples of what human rights mean in practice—what our convention rights allow us to protect when the state overreaches. These are examples of how we reflect our British values in the country we wish Britain to be. Yet the Government have made clear their intention to do away with the Human Rights Act and to replace it with a British Bill of Rights. The question is: what values will such a Bill of Rights enable or secure that are not already enshrined in the Human Rights Act through its incorporation of the European Convention on Human Rights?

Are there rights which we currently enjoy that the Government are keen to strip out of a UK Bill of Rights? Surely it cannot be the protection of freedom of speech or the right to a fair trial, or the right of religion and freedom of assembly, or the right to a private life. Is it the right to free elections that they fear or the right to protection of property, as they pursue their attempts to sell off housing association homes? Which one of these freedoms and rights would not be in a Conservative Bill of Rights? If the answer is that they would all remain, why are the Government so keen to abolish the current Act and put into jeopardy the jurisprudence and case law that have gone with it?

Perhaps the real problem is not with the Human Rights Act but with the fact that it gives United Kingdom citizens a pathway to the Strasbourg court, with the ability to challenge—in Europe, no less—a decision made by government. The right to take a case to Strasbourg will not be revoked by the repeal of the Human Rights Act. Citizens were taking cases to Strasbourg before 1998. The whole point of the Act was to make the convention rights more readily justiciable in our domestic courts. Is it really the Government’s intention to cut off any redress by appeal to Strasbourg, especially when under Article 35 of the convention, the United Kingdom has undertaken not to hinder in any way the effective exercise of this right? What is the Government’s view on Article 46 of the convention, which imposes on all states parties a binding international obligation to abide by final judgments against them? Repeal of the Human Rights Act would not alter the international obligations that the United Kingdom has undertaken.

The last published edition of the Ministerial Code states as a general principle the overarching duty on Ministers to comply with the law, including international law and treaty obligations. If, as suggested in the Conservative manifesto, the Government wish to curtail the role of the European Court of Human Rights, is the Prime Minister prepared to suspend that part of the Ministerial Code in respect of the European Convention on Human Rights, with all the consequences that would have for a Government who protest the importance of the rule of law—or would the Government renounce the convention, and with it our membership of the Council of Europe?

Often in your Lordships’ House, we talk about Britain’s soft power as an influence for good in the world, but the opposite side of that coin is that if we are backsliding, we become an influence which justifies others’ injustice and intolerance. If hitting the pause button on the Human Rights Act reforms is perhaps a consequence of the Government waking up to the international ramifications of their objectives—on the basic ideal of the rule of law and its international and diplomatic consequences—it should also be an opportunity to consider the domestic consequences of ill-thought through proposals, not least in relation to the devolved institutions of the United Kingdom.

In particular, Northern Ireland has an important relationship with the Human Rights Act and the European convention. The Good Friday agreement enshrined a fundamental role for the ECHR in moderating the values of plurality and equality in Northern Ireland. Human rights protections were a central feature of the peace process; they cannot lightly be brushed aside. There are also international implications, specifically in relation to our relationship with Ireland. The agreement was incorporated as a treaty between the United Kingdom and Ireland and lodged with the United Nations. Article 2 of the treaty binds the United Kingdom to implement provisions of the agreement which correspond to its competency, and paragraph 2 of the “Rights, Safeguards and Equality of Opportunity” section of the agreement states:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights … with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency”.

That commitment was given legislative effect through the Human Rights Act. I fear that the United Kingdom’s international standing and its relationship with Ireland could suffer grievously if its obligations under the Good Friday agreement were not observed. Pulling Northern Ireland out of the European convention would violate international law and surely have severe ramifications for the peace process.

Also, the plans may well be stopped in the Scottish Parliament or the Welsh Assembly. The Scotland Act and the Government of Wales Act define the legislative and executive competences of the respective devolved institutions by reference to the convention rights, as defined in the Human Rights Act. Adam Tomkins, professor of public law at Glasgow University, has speculated on whether a legislative consent Motion would be needed in the Scottish Parliament to repeal the Human Rights Act. He went on to take a clear view that if any British Bill of Rights contained new rights which impinged upon the exercise of the Scottish Parliament’s legislative powers or the Scottish Ministers’ executive powers, a legislative consent Motion would be needed.

Professor Tomkins, for whom I have the highest regard, is now a constitutional adviser to the Secretary of State for Scotland. Is it the Government’s view that legislative consent Motions will be necessary? What happens if they are not forthcoming? Could we have a position where citizens’ rights in Scotland are different depending on whether the public authority exercises devolved or reserved responsibilities? It has the making of a dog’s breakfast and is perhaps a reflection of a policy that was not properly thought through.

What are the real motivations in embarking on a course fraught with constitutional danger? Is it part of a wider move by the Government to make it more difficult for those with legitimate reasons to challenge them? Why are the Government so scared of such challenges? Could it be because the Government fear that a number of their polices coming down the track—cuts in working-age benefits, cuts in disability benefits and the compulsory sell-off of housing association homes—may well be susceptible to challenges in the courts? The Human Rights Act allows us to challenge the decisions of the state, and I would be interested to hear what guarantees the Minister can give us today that the proposed Bill of Rights would continue to allow such challenges to the same extent as we have today.

This is a fight, or a debate, that we would rather not be having. The contract between the state and the public needs to be retained and enhanced, not diminished or swept aside. Rather, we should look to the future and to ensuring that our fundamental rights and liberties are protected in a way that is compatible with the new technologies of the day. We should be looking to the creation of a new digital Bill of Rights that will help safeguard and protect our citizens online and ensure that the same rights enshrined in our law in 1998 hold true as we enter a world of new technology that does not respect boundaries.

At one level, the Human Rights Act is simply a vehicle for bringing convention rights into our domestic law, but it has become more than that. It is woven into the devolution settlements and is widely seen as symbolic of our country’s commitment to openness, tolerance and the rule of law, to which even government is subject. I am sure that the Liberal Democrat Benches are not alone in this House in being unable to comprehend what purpose the Government think they are serving by abolishing such a fundamental Act, which is well understood by the courts and respected around the world. The only apparent rationale is to replace convention rights with a British Bill of Rights which curbs existing rights or to exclude resort to the European Court of Human Rights, putting the clock back almost 50 years with all that that entails in terms of reneging on international obligations.

It is often said that eternal vigilance is the price of liberty. The Government should be in no doubt that we on these Benches will be especially vigilant. I beg to move.

--- Later in debate ---

[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—

[Lord Wallace of Tankerness]

The Conservative manifesto also said something about curtailing the role of the European Court of Human Rights. Could the Minister, for the benefit of the House, elaborate on what was meant by that part of the manifesto?

[Lord Faulks]

I am reluctant to say very much more, for the very reason that we have an open consultation. I think I have made it clear that our minds are not closed on this. Earlier in my comments I referred to Section 2, and that particular provision, and its relationship with the Strasbourg jurisprudence. That is a matter that will be considered carefully as part of the consultation for reasons that a number of noble Lords have given.

The Prime Minister made this comment during the celebration of Magna Carta:

“Magna Carta takes on further relevance today. For centuries, it has been quoted to help promote human rights and alleviate suffering all around the world. But here in Britain, ironically, the place where those ideas were first set out, the good name of ‘human rights’ has sometimes become distorted and devalued. It falls to us in this generation to restore the reputation of those rights—and their critical underpinning of our legal system”.

We want our human rights law to be fair and just and to regain public confidence. We intend that a British Bill of Rights will be a positive response to the challenges facing the culture—the subject of the debate—of human rights and civil liberties in the United Kingdom.

It is not just a question of this Government believing this needs to be done. Previous Administrations seem, by what they have said, to have reached similar conclusions, but then have, for one reason or another, failed to follow matters through. During an appearance on the BBC in May 2006, the noble and learned Lord, Lord Falconer of Thoroton, said about the Human Rights Act:

“We all agree about liberty, about the right to life, the right to privacy, those issues. And the problem is not a subscription to those rights, it is how it operates in practice”.

The last Labour Prime Minister, the right honourable Gordon Brown MP, in July 2007 said in the other place,

“it is right to involve the public in a sustained debate about whether there is a case for the United Kingdom developing a full British Bill of Rights and duties”.—[Official Report, Commons, 3/7/07; col. 819.]

Talking to the BBC later the same year in October, he said:

“Jack Straw is signalling the start of a national consultation on the case for a new British Bill of Rights and Duties…This will include a discussion of how we can entrench and enhance our liberties— building upon existing rights and freedoms but not diluting them—but also make more explicit the responsibilities that implicitly accompany rights”.

He said that on BBC News on 27 October 2007.

I also refer the House to comments made by the noble Baroness, Lady Falkner, in May’s edition of Prospect. She said:

“Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken … A British Bill of Rights is a good idea”.

A majority of the commission on a Bill of Rights thought the same. I served on that commission, as the noble Lord, Lord Lester, said. He was part of the majority. I would not claim for a moment that our reasoning was precisely the same, but the conclusion that we reached was identical.

Many other countries, within the Council of Europe and outside, have their own equivalent of what we will have in a British Bill of Rights. I hope that by engaging in a proper consultation on our proposals for how the United Kingdom’s human rights framework should be reformed we will be able to identify many points of agreement across the whole political spectrum, including with more members of Her Majesty’s Opposition. It has quite rightly been said, I think by the noble Baroness, Lady Ludford, and others, that at various times different political parties have varied enthusiasms for a British Bill of Rights. We intend to try to produce a Bill of Rights that can produce real consensus across the parties.

The noble and learned Lord, Lord Wallace of Tankerness, no doubt had an eye on devolution when tabling this Motion for today’s debate. Certainly, since the election and since the debate about the shape of the future human rights framework has begun in earnest, it has been repeatedly raised as an apparently intractable issue that will stump any reform and of which the Government are currently unaware. The Government are fully alive to the devolution dimension, and we will consider the implications of a Bill of Rights for devolution as we develop our proposals. I think the noble and learned Lord will understand if I do not comment on meetings that the Secretary of State has, or on discussions, but I assure him and the House that we will fully engage with the devolved Administrations and the Republic of Ireland in view of the relevant provisions of the Belfast, or Good Friday, agreement. I heard what my noble friend Lord Lexden said in that regard.

It is important to emphasise that the United Kingdom’s international obligations neither begin nor end with the European Convention on Human Rights, a point underlined by the fact that, as we debate here today, a team from the United Kingdom is being questioned about our country’s performance against the commitments we have signed up to in the United Nations International Covenant on Civil and Political Rights. Whatever form the Bill of Rights finally takes, the Government have no intention to resile from its many other international obligations, such as those arising under the United Nations convention against torture, which prevent removal of a person to another country,

“where there are substantial grounds for believing that he would be in danger of being subjected to torture”.

We were not a lawless country before 1998. We will not be in the future. We will comply with our many international obligations.

I am sorry that the position of those in my party was compared to Syriza by the noble Baroness, Lady Ludford. We have been described as zealots by the noble Lord, Lord Lester, who has previously described the position that we take as being part of the Tea Party tendency in the Conservative Party. Worst of all, he accused me the other day of being a Eurosceptic. None of those things I believe to be true.

I am grateful to noble Lords who have spoken in this debate and to the noble and learned Lord, Lord Wallace, for calling it. Much of what has been said has been extremely valuable. I hope the debate, both formally and informally, will continue. Much of what has been said will help to influence what the Government decide. I am glad that my noble friend Lord Lexden reminded us that the originator of “one nation” was Stanley Baldwin, not Disraeli, as is so often thought. “One-nation government” is a phrase that has been bounced from one side of the Chamber and possibly beyond recently. We intend to govern as a one-nation Government. This British Bill of Rights will, I hope, be quintessentially a one-nation document, including all the parts of the United Kingdom and, so far as possible, the agreement and consensus obtained from all the parties. I am grateful for all contributions. I know this debate will continue.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have contributed to this worthwhile debate. We have had the benefit of historical perspectives from the noble Lord, Lord Lexden, and some very keen legal analysis from my noble friends Lord Lester and Lord Marks and the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Carswell, while practical issues, particularly disability rights, were raised by my noble friend Lord Addington. We heard a very passionate speech from the noble Lord, Lord Cashman, which brought home the real personal meaning of rights for many people. Those who heard the noble Lord’s speech will remember it for some time to come. He reminded us that one of the important issues about rights is that they are often about trying to protect minority interests against what is sometimes referred to as the tyranny of the majority. Some of the case examples given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, showed how majority interests can sometimes ignore minority interests.

I listened carefully to what the Minister said. I am very grateful for what he said about consultation and the invitation from the Lord Chancellor that will be speeding its way to my noble friend Lord Lester. He made a number of points. He said that there is a willingness to consult. That is a far cry from some of the rhetoric at the time of the election and beforehand. If he wonders why there is concern that rights are going to be restricted, it is because of the kind of rhetoric that has driven this, and we are right to be vigilant. He talked about enhancing rights. My noble friend Lord Marks of Henley-on-Thames gave him a wide range of additional rights that could be added.

The Minister gave a very clear indication that there is no intention to leave the convention. I think that answers the question my noble friend Lord Lester asked about whether that had been qualified by Ministers in the other place saying that everything is on the table. He seems to have made it very clear that leaving the convention is not on the table, which is welcome. I take the point he made about having regard to the devolved Administrations. We look forward to making our contribution to any consultation that takes place. As I indicated in my opening remarks, we will be extremely vigilant because there are very important rights that have been used in so many practical ways and we do not wish to see our standing as a country that upholds the torch of human rights being diminished.

Motion agreed.