Human Rights Act 1998 (Repeal)

Richard Bacon Excerpts

Tuesday 4th December 2012 Commons Chamber

[Mr Richard Bacon (South Norfolk) (Con)]

I beg to move,

That leave be given to bring in a Bill to repeal the Human Rights Act 1998; and for connected purposes.

The Human Rights Act 1998 gives effect in UK law to the rights and freedoms under the European convention on human rights and makes available in UK courts a remedy for breach of a convention right. Under section 2 of the Act, a court or tribunal in the UK determining a question that has arisen in connection with a convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. Under section 3, primary and subordinate legislation must, so far as it is possible to do so, be read and given effect in a way that is compatible with the convention rights. This applies to any primary and subordinate legislation whenever it was enacted.

Section 3 also states that this provision does not affect the validity of any incompatible legislation, although it is also true under section 6 that it is unlawful for a public authority to act in a way that is incompatible with a convention right. As we have seen, the view of successive Governments over the years has been that when a UK law is found to be incompatible with the European convention, it is the UK law that gives way to secure compliance with the convention.

Indeed, the Human Rights Act conveniently supplies a fast-track procedure to facilitate this happening quickly. Under section 10, a Minister of the Crown may make such amendments to primary legislation as are considered necessary to enable the incompatibility to be removed by the simple expedient of making an order. In effect, because the accepted practice is that the United Kingdom observes its international obligations, a supranational court can impose its will against ours. In my view this is fundamentally undemocratic.

However, there is no point in belonging to a club if one is not prepared to obey its rules. The solution is therefore not to defy judgments of the Court, but rather to remove the power of the Court over us. The fundamental point is that one cannot alter the political nature of a decision by changing the location where the decision is made. Judges do not have access to a tablet of stone not available to the rest of us which enables them to discern what our people need better than we can possibly do as their elected, fallible, corrigible representatives. There is no set of values that are so universally agreed that we can appeal to them as a useful final arbiter. In the end they will always be shown up as either uselessly vague or controversially specific. Questions of major social policy, whether on abortion, capital punishment, the right to bear firearms or workers rights, should ultimately be decided by elected representatives and not by unelected judges.

Let us take the recent example of prisoner voting. The view of the Court is that, although the Council of Europe member states has a margin of appreciation in deciding how far prisoners should be enfranchised, a complete ban on voting was outside that margin. The fact that we do not have a blanket ban on prisoners voting does not seem to have troubled the Court, even though the Attorney-General went out of his way to point this out in person when he appeared before the Court. There are several categories of prisoner who have the vote now—prisoners who are on remand, prisoners who are sentenced but not convicted, and prisoners who are in prison for defaulting on fines. But the Court is in effect saying, “Sorry, we don’t like your arrangements. We prefer ours.”

Although I personally object to the idea of prisoners having the vote, my much more fundamental objection is to the idea that a court sitting overseas, composed of judges from among other countries Latvia, Liechtenstein and Azerbaijan, however fine they may be as people, should have more say over what laws should apply in the United Kingdom than our constituents do through their elected Members of Parliament. Some may say that that is what the UK signed up to, to which I would only reply, “Precisely.” That is why we need to repeal the Human Rights Act and resile from the convention.

The idea that that would make us a pariah state is simply nonsense. For example, Canada is a member of the Organisation of American States, the equivalent of the Council of Europe for the Americas, but has not signed up to the jurisdiction of the Inter-American Court, without becoming in any sense a pariah state.

Some might say that it would raise all kinds of other legal problems, that everything from the United Nations convention against torture to the Good Friday agreement is predicated upon our membership of the European convention so that it would be impossibly difficult to change things. I do not find that persuasive. It was not that many years ago that people said that a Bill of Rights of any kind would be impossible in the United Kingdom because of parliamentary sovereignty. The truth is that if one wants to do something badly enough, one can find a way to do it, and to do it legally—that is precisely what one keeps clever lawyers for. Goodness, if one wants something badly enough, it turns out one can even go to war in defiance of both world opinion and international law and find a lawyer to say that it is perfectly lawful.

I particularly commend the second Kingsland memorial lecture, given by my right hon. Friend the Member for Arundel and South Downs (Nick Herbert), who is a sponsor of the Bill, in which he set out the argument at much greater length. His central point, with which I agree, is that on prisoner voting, as on so much else, we should not defy the ECHR, but resile from it altogether.

I will end by reflecting on the comment of Judge Learned Hand:

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it… What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few”.

In my view, our best check is not unelected judges, but the spirit of liberty in the hearts of the elected representatives in this House. I commend the Bill to the House.