Human Rights Act 1998 (Repeal and Substitution) Bill
Debate between Rory Stewart and Jacob Rees-Mogg(11 years, 8 months ago)
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Rory Stewart (Penrith and The Border) (Con)
I begin by praising my hon. Friend the Member for Dover (Charlie Elphicke) for introducing the Bill. It raises an extremely important issue which clearly irritates many people in Britain and is very dangerous. We have got to a situation where human rights are talked about as though they were some trivial, unnecessary issue. The phrase is connected in people’s minds with phrases such as “health and safety”. That is a very sad effect.
The question for us today is how we deal with the problem. My hon. Friend has eloquently explained that we have a problem and has eloquently given countless examples of things which intuitively make many members of the British public extremely anxious and extremely unhappy with the judicial and the political institutions. We should respect that. It might be tempting to say, as some lawyers do, that the British public are not focused enough on the moral details and the legal details of the case, and to trivialise their objections. This would be unfair, because there is obviously something important, deep and intuitive going on that makes people anxious about this kind of activity under the banner of human rights.
What is our solution? How do we look at these issues? We have to begin with a sense of what human rights are. Let me politely challenge slightly the definition of human rights put forward by my hon. Friend, without calling into question his overall point, which is that we are now in a mess. It seems to me that we can begin with a definition of human rights that would state that to say that somebody has a human right is to say that anyone, anywhere, treated in this fashion is wronged, and that their possession of that right is not relative to the costs or benefits of upholding it in any particular case. That sounds very technical and it sounds pathetic, but it is an important thing to establish at the beginning of this debate.
Human rights are based on notions of dignity and of inviolability, and they are in their nature universal. To say that somebody has a human right is a statement about their moral status. It is not a statement about their nationality. It is not a statement about their citizenship. It is to say that anyone, anywhere, treated in this fashion is wronged, and that although there may be a threshold above which that right could be suspended, below that threshold their possession of the right is not relative to the cost or benefits of upholding it in any particular case.
Jacob Rees-Mogg
But surely once there is a threshold, the right is not absolute.
Rory Stewart
My hon. Friend makes a very important point. Let me give an example. The concept of human rights is based on a notion of human dignity and on a notion that humans should be treated as ends in themselves, rather than as a means to an end. In other words, it is a sort of Kantian world view. It has an absolute view of the world on how people should be treated, but at a very extreme level there may be a threshold at which we in the Chamber would intuitively feel that that right could be suspended.
For example, if a child were in possession of information about a ticking bomb that was going to destroy a million people in a city, we might feel that in that situation it was justifiable to twist the child’s thumb to find out where that bomb was. In other words, there might be a threshold, in situations so extreme as to be almost hypothetical, where our human intuition would be that the right would be suspended, but, below that threshold, the possession of the right is not a function of the costs or benefits of upholding it in any particular case.
For example, it would not be justifiable in any situation to kill one individual in order to harvest their organs to save five other individuals.
Jacob Rees-Mogg
May I come back to my hon. Friend on his previous example? He said that a particular act would be justifiable to save a million people. What about 500,000? What about 50,000? What about 10,000? What about one?
Rory Stewart
That is a fantastic argument. The argument that I was trying to make was that in the case of five, 10, 15 or 20 people, our moral intuition is that a particular act is unacceptable. At another level, at the level of a million, our moral intuition is that it might be acceptable. This is a very difficult point. The point that I am trying to make is that we are in a sense deontologists. We are absolute up to a certain threshold, but there is a certain threshold at which a utilitarian or consequentialist calculus comes in.
As I said earlier, if it were a case of one person being killed to save five—in other words, that somebody could be killed, their organs would be harvested, and those organs would be used to keep five people alive—that would not be justifiable. Their possession of their inviolability—their immunity, their right to life—is not proportional to the costs or benefits of upholding it in any particular case. There may be—we almost never get anywhere near this kind of threshold—as a hypothetical, theoretical point, a threshold at which a right might be overruled by a consequentialist consideration, the one against a million. But below that threshold, the possession of the right is not relative to the costs or benefits of upholding it in any particular case.
Jacob Rees-Mogg
I am grateful to my hon. Friend for giving way once again. I think that he rather sold the pass once he had the child whose thumb could be twisted to save 1 million people, because if their thumb could be twisted, could their arm be broken? We are now getting into an argument about what is relative and find that there is no absolute. The same applies to the example of harvesting a person’s organs: we might not allow it if it would save five people, but what if it would save 5 million people? Does it then become justifiable?
Rory Stewart
My hon. Friend asks a very important question of moral philosophy. It is a question of moral intuitions. We are trying to create in our legal and moral systems something that reflects our common-sense intuitions as humans. We try to interrogate them, be logical and go back to first principles, but our common-sense intuition, I feel, is that humans have a moral status, that they are inviolable, that they have an intrinsic dignity, and that they should be treated as ends in themselves, not as means to an end.
However—this relates to the case of one against 1 million—we also have a strong moral intuition that there might be certain extreme circumstances in which it is justifiable to overrule an individual’s rights. There are different ways we can deal with that. In the German legal system, for example, it would be argued that twisting the child’s thumb, although morally justifiable, is not legally justifiable. The individual responsible would be prosecuted and convicted, but they would be congratulated on having made the correct moral decision, even if it was the wrong legal one. In our normal lives, however, such scenarios are purely hypothetical; we do not come across ticking bombs or children who could save 1 million people.
In our everyday lives, human rights are, in themselves, inviolable, which is why, as we consider the case brought by my hon. Friend the Member for Dover, we must ask ourselves this: what is wrong with the current system? It seems to me that there are four possible answers to that question, and he has given four possible answers. One of them, which my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has raised, relates to the question of sovereignty. The first possible answer on what is wrong with the current settlement on rights is that there is a problem of parliamentary sovereignty. The notion, which we could explore in greater depth, is that Parliament is sovereign and that the European Court of Human Rights, by overruling the decisions of the British Parliament, is not acting in accordance with the British constitution.
The second argument that could be made is that a question such as whether prisoners should have the right to vote—a recent and difficult case—is purely relative; that it is culturally relative. It could simply be argued that the reason the European Court should not get involved in prisoner voting is not because of sovereignty, but because the question is culturally relative—I say “tomato”, you say “tomayto”. These things are purely subjective and based on a particular cultural or historical context and the Court should not be fussing about them. The British think one thing, the Spanish think another. There is no way of resolving it, because it is purely relative.
The third argument is that we are dealing with subjects that are purely trivial, the argument being that voting rights for prisoners simply do not matter. There might theoretically be a moral solution to the question of whether prisoners should be able to vote, but it is a trivial issue and not something the European Court should be dealing with. Instead, it should be looking at more important issues.
The fourth argument, and the one I am tempted to choose, is that this is not fundamentally a problem of sovereignty, relativity or triviality; it is the problem of the European Court using the wrong principles to come to the wrong judgments.
Permit me to expand on those four arguments in more detail. The first argument is about parliamentary sovereignty, which my hon. Friend the Member for North East Somerset dealt with so eloquently. It is of course true that traditionally within the British system parliamentary sovereignty was supreme. Although Dicey talks about parliamentary sovereignty and the rule of law, it is quite clear that what he means by the rule of law is not what Lord Bingham means by the rule of law. In other words, in the conventional British interpretation, the rule of law is not something equivalent to the US constitution. It is not an independent body of law against which parliamentary statutes can be judged. It was not the case in Britain that an Act of Parliament could be struck down by a court on the grounds that it did not accord with the rule of law. That notion, which is of the 15th and 16th centuries, that there was an independent common law that trumped the actions of Parliament, was put aside. Essentially, for the past 300 years we have believed that Parliament is sovereign.
Under that interpretation, the European Court cannot possibly be engaged in trying to subjugate Parliament. At the very best, all it is engaged in is an international treaty obligation through which the British Parliament has voluntarily determined that it wishes to accept the rulings of the Court but can choose to ignore them if it so wishes, and in doing so it would not be breaking British law but would simply be in breach of its international treaty obligations.
So deep is that belief in the British mind that we are now the only advanced democracy in the world that makes no explicit distinction between constitutional and normal law. In other words, we have a situation in which, as my hon. Friend the Member for Dover has so eloquently explained, our constitution shifts continually over time and, at its worst, “bends like a reed” in the wind. It is theoretically possible, in a way that it is not in any other advanced democracy in the world, for a simple majority in Parliament—a majority of the people gathered here today, for example—to change the fundamental constitution of the British nation.
Every other advanced democracy draws a distinction between constitutional and normal law so that changing the fundamental constitution requires a special procedure. In northern European countries there is generally a demand for a two-thirds majority in Parliament, and in southern European countries there is more of a focus on a referendum. In some countries, such as Italy, there is interest in an intermediate vote, so the Parliament must be dissolved and the proposed constitutional change put to the electorate through a general election. That is all designed to make it very difficult for a Parliament to change the constitution. The idea—not a British one—is that a Government or Parliament are temporary, but the people are public, and the constitution exists to protect the people from the Parliament.
It would be possible to base the entire opposition to the European convention on human rights on an argument about parliamentary sovereignty, as my hon. Friend the Member for North East Somerset has, using British constitutional history. But that argument rests, fundamentally, on political institutions, not morality. It is difficult to see an ethical or moral case for the notion of untrammelled parliamentary sovereignty as an alternative to the protection of the inviolability of the individual’s rights. Indeed, the modern notion of democracy, which is shared in every other advanced democracy in the world, combines representation of the majority with protection of the individual’s rights.
Jacob Rees-Mogg
I do not think that my hon. Friend has fully established the inviolability of the individual’s rights. He has stated it, but he has not established it.
Rory Stewart
My hon. Friend, with enormous eloquence, raises a fundamental philosophical debate. The answer to his point is that one cannot establish the existence of inviolable rights unless one accepts two further principles. The first is the equality of humans; the notion that I, you, Mr Deputy Speaker, my hon. Friend, and indeed someone we have never encountered who lives at the other end of the Congo, are in all important respects equal in dignity and in rights. That is an insight of logic and of human consciousness and a basic commitment to the notion that, although we might feel that we are special and the only people who exist, as we become adults we acknowledge that other people, too, are independent moral actors who possess exactly the same dignity. The inviolability—the rights of the human being—which my hon. Friend has raised, is derived from that notion of equality and dignity.
Jacob Rees-Mogg
For the record, I think that the Deputy Speaker is so many leagues above me that I am not sure my hon. Friend is right. If one takes my hon. Friend’s point about the equality of humanity—the equality before God that I believe as a matter of faith—that does not mean that rights are always applied equally. Even in this Bill, the right to life—that most essential right—is qualified in the case of self-defence, so rights immediately become relative.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Just for the record, I think we are all equal unless there is a long intervention, when I might show a little more power.
Rory Stewart
Rights are indeed qualified, but that does not mean that they are relative. This is an important distinction. The clause that my hon. Friend mentioned does indeed establish the right but says that under certain specific circumstances it may be qualified or overruled. That is not a statement that the right is relative. It is not a statement that the right to life contained in the European convention on human rights is purely relative. It is not a statement that, below the threshold of the qualification, in other words, the specific circumstances in which a right may be suspended—this is what makes rights quite different from any other form of moral law—one’s possession of a right is not relative to the costs or benefits of upholding it in a particular case.
One’s right to life may be suspended at a certain threshold. The thresholds described in the European convention include those relating to civil disorder and military law. However, below those thresholds one’s right to life cannot simply be looked at in terms of the costs or benefits of upholding it in any particular case.
Jacob Rees-Mogg
But this right is so clearly absolute. The old Riot Act provided for the militia to start shooting because of the decision made at that time that the maintenance of order required immediate use of fatal force. That is no longer thought to be appropriate. It is therefore about a relative judgment relating to the balances between the individual and the collective.
Rory Stewart
We need to be very clear about what we mean by “relative”. The notion of “relative” that my hon. Friend is rehearsing simply says that rights and moral values evolve in a historical context. As he says, it is simply a matter of historical fact that different cultures at different times have taken different moral positions. Aristotle, alongside his other great observations, believed that women and slaves lacked souls. Today we realise not merely that he thinks one thing and we think another—that it is relative—but that he is wrong. He is wrong because moral language is implicitly not relative; it is, in its very structure, absolute. Moral language does not say, “I don’t happen to like you killing someone, but if you want to kill someone that is up to you.” In other words, it does not say that killing someone or not doing so is like you liking chocolate ice cream and me liking strawberry ice cream; it says that it is wrong and ought not to be done. Moral language is about questions of “ought”, not questions of “is”.
Jacob Rees-Mogg
But in saying that something ought not to be done one immediately goes on to add “except in certain circumstances.”
Rory Stewart
I will try again. The central point is that the notion of moral obligation—the notion of what ought or ought not to be done—relies on two conflicting principles that connect at the moment of the threshold. Those two conflicting principles are, on the one hand, the notion of the inviolability and dignity of the human being, and, on the other, a consequentialist or utilitarian argument of the greatest happiness of the greatest number. Philosophically, the origins of these two types of argument are entirely distinct. One is a deontological argument that simply states the dignity of the human being and their inviolability; the other is an instrumental argument based on consequences or results. Our legal system, and indeed our moral intuitions, combine these two, which meet at a point of the threshold. This is what we mean by “ought”. We mean exactly what my hon. Friend the Member for North East Somerset suggests: that the individual ought not to be treated like this except in very extreme circumstances above a certain threshold below which the individual’s possession of the rights is not a function of the costs or benefits of upholding it in any particular case.
This is important because it is a distinction between a relative position that says “I can take your life whenever I feel like it on the basis of no moral argument and no logical position” and a separate position that says “I may not take your life. There are certain extreme situations in which it could become legally permissible to do so, but I may not.” The distinction between human rights and a relative position is a distinction on permissibility—a distinction on what may be done.
Rory Stewart
Before my hon. Friend intervenes again, let me be absolutely clear that the distinction is this: when I say that somebody has a right not to be tortured, I am saying that they may not be tortured. I am not saying that they will not be tortured; there might be a horrible situation in which their Government do torture them. The statement is a moral statement, not a prediction about the future. It is a statement about what we morally give permission to do: “You may not be tortured; you may not be killed.” It is then possible to state certain threshold circumstances in which our moral intuitions in terms of human rights shift to moral intuitions in terms of a consequentialist world view in which we say, “One person might be killed for the benefit of a million.” These are nice questions of moral philosophy that do not usually come up in our everyday life, which is based on the dignity and inviolability of the human being regardless of circumstance.
Jacob Rees-Mogg
I am grateful to my hon. Friend for giving way; I will try to make this my last intervention. Once we accept the threshold, it becomes fundamentally arbitrary and merely a matter of arguing where it should be set. Therefore, the question is of the legitimacy of who sets that threshold—whether it should be the Queen in Parliament or a foreign court.
Rory Stewart
There is a disagreement here and it is not one that we can paper over. The question is: where should we put the weight of sovereignty? How important is sovereignty? Does sovereignty confer some form of immunity? Is there some magic in this Chamber that allows the legislators in it to do whatever they want? Is it the case, as Lord Hoffmann suggested in his judgment, that if this Chamber wished, it could simply flout human rights? Is that a statement about political fact in institutions, or is it about morality? Do we think that it is simply a fact that this Parliament could do whatever it wants, or do we think that this Parliament ought to be able to do whatever it wants? On this is based our whole conception of democracy.
Those who feel that this Chamber not only could, but ought to be able to do whatever it wants are basing their argument on one principle only, which is the principle of majority representation. Where I suspect there may be a disagreement between myself and my hon. Friend the Member for North East Somerset is on the notion that democracy is based not on one, but on two principles—majority representation and the protection of minority rights—and that, in the absence of the second criterion, we cease to be, in the full sense, a democracy.
This is a very difficult argument to make, because in this country we have every reason to be proud of the performance of this Parliament. Although theoretically, constitutional anxiety leads us to believe that this Parliament could do truly barbarous things, as a matter of fact it has not. In fact, consistently this Parliament has shown itself very respectful of the unwritten laws of the British constitution. When Parliament has attempted to fundamentally change the constitution of the United Kingdom through a simple majority in the House of Commons—as, indeed, it did with the proposal to abolish the House of Lords—it refused to take that opportunity. It backed away from it. Parliament’s reluctance, innate conservatism and caution with regard to issues relating to the constitution have meant that, from 1911 to the current day, people pushing for a written constitution or more formal constraints on the power of Parliament have not won.
That is good and it shows two positive things. First, it shows the important principle of common sense. Everyone in this Chamber agrees that we do not want to live in a world of technocrats. We like the fact that the British public have a say and that their common sense permeates this Parliament. At our best—we are not always at our best—we are a lens that connects the Executive to the voting public. We act as a mediator between public opinion—the sentiment, imagination and culture of the British people—and the laws passed in Parliament. Nobody in this Chamber wishes to pass to a world where we vest our power in technocrats or experts, such as a Mario Monti-type figure with great insight, who think they know what is best for the people. Our unruly common sense means that the public have tended to respect their landscape, to challenge the Government on, for example, wind turbines, and to refuse to co-operate—in a similar way to that in which the French public occasionally refuse to co-operate on farming—with the theoretical ideas of experts and Government.
The second reason to be proud of the sovereignty of Parliament is that it reflects a culture, but the question for my hon. Friend, who is one of the great supporters of untrammelled parliamentary sovereignty is this: do we have the confidence that the unwritten rules, the culture of this House and the deep understanding of the history of the British constitution—which meant in 1911 that Members of Parliament were very cautious about changing it—still hold, or did our vote on the House of Lords Reform Bill take us close to the brink? Is it possible that we are suffering from collective amnesia and that one can no longer say that the British Parliament is so deeply entrenched in its constitutional history that it can be guaranteed never to change fundamentally the British constitution?
If we are moving into a world that takes us into that danger zone, I believe that we need to follow the example of every other advanced democracy in the world and separate constitutional and normal law, and say that, in order to make a fundamental change to the constitution, which would affect the rights of citizens—this is why this is relevant to the European Court of Human Rights—we must ensure that special procedures are followed. The special procedure that we have tended to develop through precedent over the past 40 years is, of course, a referendum. We may not want a referendum to be the fundamental means by which we change the constitution. We may want to adopt a different procedure, such as a two-thirds majority or a free vote in the House—which, of course, is what the previous Government used to deal with the issue of the House of Lords—but we are moving to a world in which we need a proper procedure.
The reason why that is relevant to this debate is that the question of parliamentary sovereignty and its relationship with the European Court is the nub of the issue. The argument against the European Court cannot simply be that Parliament is sovereign, absolute and always right and that it should never be challenged. We have developed a doctrine of international intervention with regard to the notion that sovereignty does not confer immunity—that the rights of a country’s individual citizens can trump the sovereignty of a Parliament.
The second argument—moving on from sovereignty, with apologies for having paid so much attention to it—is about the question of moral relativism, although my exchange with my hon. Friend may have covered this issue adequately. The idea of moral relativism states that the question of prisoners voting is purely relative. I like chocolate ice cream, Mr Deputy Speaker, but perhaps you like strawberry ice cream—that is a question of taste, not of moral decision. The Spanish believe that prisoners should have votes and the British do not, but to argue that such things are purely relative and that there is no way of resolving them is very dangerous, because all these questions about rights are fundamentally issues of morality. Moral language is a statement about what is right and what is wrong—what we ought to do and what we ought not to do. It is not a statement of personal taste akin to saying, “I like red, you like blue, and that’s the end of the discussion.” What one says is, “You are wrong.” We must believe it is possible to resolve the question of who is right and who is wrong on the issue of prisoners voting and to do so through moral investigation and debate.
Jacob Rees-Mogg (North East Somerset) (Con)
It is an enormous pleasure to follow my hon. Friend the Member for Penrith and The Border (Rory Stewart). That was one of the most instructive and thoughtful speeches it has been my pleasure to listen to in this Chamber. That is, I am afraid to say, a preamble to saying that there is a good deal of it with which I disagree, but I genuinely mean that it was a fantastic exposition of a defence of human rights to the extent that we have them.
There are difficulties with my hon. Friend’s view, as we discussed in various interventions. The question of absolutes is very difficult in the political context which law ends up being. In terms of moral absolutes, I have no difficulty, wearing a Catholic hat, in accepting them. I believe that clear moral absolutes are established by the Church, but the state is something very different, and pressures on it mean that the moral absolutes have to be dealt with in the context of the time. An obvious example is the definition of a just war. As we know, the definition, from Thomas Aquinas, sets out three conditions for a just war to overcome the problem of how states can deal with a threat to their existence against the Christian teaching that we should turn the other cheek. We find that a moral religious absolute is impractical in terms of the secular behaviour that states, Governments and nations require.
Individual Bills of rights or lists of human rights are not moral absolutes; they deal with political problems that exist at the time they are drawn up. My hon. Friend gave a wonderful example, of which I was unaware: the United Nations human rights convention that maintains the right to paid holiday. It is hard to believe that the right to paid holiday is an absolute moral right; it is something that comes about because of political pressure at the time—because of negotiations between the drafters and the sorts of things that lead to a political decision-making process.
When we look at the Bill, we see that some of the rights that are insisted on for a British Bill of rights relate to immediate and specific problems that we face. There is a part on voting rights for prisoners, and there is a part on the right to self-defence if one’s property is attacked. These are at the forefront of political debate at the moment. Therefore, good though the document is, it is hard to argue that the British Bill of Rights is an eternal moral document that will stand for 1,000 years.
The American Bill of Rights deals with the specific problems the Americans thought they had at the time when they were drawing up their constitution; although, interestingly, in the constitution rather than in the first 10 amendments, there is the part on how acts of attainder are limited: they may not relate to blood and they may not affect the next generation. An act of attainder was something that was an immediate political issue when the American constitution was being drawn up, but it is of no relevance today. Therefore, I dispute the point that Bills of Rights and human rights legislation deal with moral absolutes; instead I would argue that they deal with political problems.
I mentioned the wonderful example, from our own Bill of Rights, of the right to bear arms to maintain a Protestant militia, which was introduced immediately after the country had a Catholic King and a fear that he would use arms to enforce Catholicism on the country. A Protestant militia was considered necessary to defend against that. Wonderful and antique although that might be, it is not an eternal, everlasting moral principle. Indeed, I do not think eternal and everlasting moral principles often go well with the day-to-day practice of government and legislation.
The first of the four points made by my hon. Friend the Member for Penrith and The Border is the overwhelmingly important point—that the legitimacy of the political power that is making these decisions may then be altered by a subsequent political power. The next two points, on the issues of triviality and inconvenience, were arguments set up to be knocked down—they are clearly wrong-headed. It is absurd to say that some aspect of law is so unimportant that somebody should not have the right to bring a case on it. Equally, it is absurd to say that if something is inconvenient Governments can just override it because that would leave us with no rule of law at all. Therefore, the first point and last point are essential. The fourth point is the question of whether there is an essential morality that we can bring into our legislative system or whether it is, in fact, a matter of political legitimacy. In answer to that, I would say that it is a matter of political legitimacy.
It is interesting how well our constitutional settlement has served us. My hon. Friends the Members for Penrith and The Border and for Dover (Charlie Elphicke), have both referred to the Magna Carta, and said that we have had 800 years of these rights. Actually, the Magna Carta was a confirmation of rights that it was thought we already had. In 1685, habeas corpus was brought in as a confirmation of a right that we thought that we already had. The Bill of Rights itself is about confirming rights and stopping abuses of those rights. The approach has been to use the development of powers within this country—the barons in 1215, and Parliament in the 1680s—to assert these rights against an Executive who were abusing them.
We come to the position of Parliament. A great deal is made of parliamentary sovereignty. I am indeed a great defender of parliamentary sovereignty, but that is not an end in itself. Great, powerful and noble though these two Houses are, we are here as the servants of the British people with whom authority and legitimacy lie. That is the great safeguard of our rights and of our liberties. For a maximum five-year period, the British electorate have the final say on whether we are to continue in office, or whether somebody else is to be given a chance instead. That is at the core of the legitimacy argument.
The rights are the rights of the individuals who make up the United Kingdom. They may aspire to international rights, and that may be a wonderful ideal, but it is not one of practical implementation or politics. They have the right to suspend those rights from time to time when they see that there is a dire emergency. I am a great believer in habeas corpus as one of the most important rights that we all have to defend us from arbitrary government, but do I think that Pitt the Younger was right to suspend it during the Napoleonic wars, and do I think it was right to lock up fascists during the second world war? Yes, I do. It was correct to suspend a fundamental right when the nation was under fundamental attack, and no court outside this country could conceivably judge—
Rory Stewart
In suggesting that the right of habeas corpus can, in extreme circumstances, be suspended, my hon. Friend seems to be agreeing with the notion that there is such a thing as a right, a form of inviolability, albeit one that in certain situations may be set aside.
Jacob Rees-Mogg
My point of difference with my hon. Friend is the question of whether it is an absolute right that can be enshrined, or whether it is fundamentally arbitrary because once the threshold has been negotiated, the absolute quality of that right disappears. In that case, it is not an absolute moral right; it is part of our ancient liberties of which we are justly proud—and it is important that we should maintain it—but it is a liberty that can, in certain circumstances, be suspended. The question then is: whose judgment is legitimate during that suspension? In my view, the only possible legitimate authority for suspending that liberty has to be the body that represents the democracy that is at issue. It cannot be a foreign body or an overseas democracy; it has to belong to the people who are affected by it.
So, yes, in a religious context, there are absolute morals, and they may or may not be judged by a higher court at a much later stage in our lives, but they are not easily convertible in a temporal, secular society that has to deal with the immediate issues of the day. Our ancient liberties are a crucial way for us to defend ourselves against arbitrary government, and our constitutional settlement has been a great protector of those rights, in spite of the ease with which our constitution can be changed. Indeed, it is a greater protector of those rights than exists in all those countries with careful constitutions. Let us take the example of the arrangements at Guantanamo Bay, which the US Government have managed to say are constitutional. If a Government can find in their detailed constitution a legitimate way of doing something that is in fact outrageous, they can do that because they can say they are following the letter of the law. In our nation, however, we are always following the spirit of the unwritten constitution, which politicians have to abide by. We cannot get away with doing something outrageous by claiming to the electorate that we are following the letter of the law.
The row that we have had over terrorism prevention and investigation measures—TPIMs—and control orders relates to that point. We have introduced measures of an incredibly arbitrary and unjust nature, but they obey the letter of the law and meet the criteria set down in the European convention on human rights, as interpreted by our own judges. They replaced measures that were actually much fairer, in that, under an Act of the British Parliament, a foreigner living in this country who we did not want to live here could either leave or stay in prison. That seemed to me to be a perfectly reasonable thing for a sovereign Parliament to say. However, the courts said that it was incompatible with the convention, so we have come up with something that is compatible but fundamentally unjust.
That is the problem that arises when we try to impose absolute rights on a governmental system that needs to work with a degree of flexibility. We all accept that that flexibility is necessary, and it should then simply be a question of the examples that we need in order to determine it.
Rory Stewart
My hon. Friend’s analysis is moving and convincing, but I would challenge it by saying that it puts a high degree of trust in the seriousness, the historical knowledge and the culture of Parliament itself. If Parliament ceases to take on its responsibilities with that level of seriousness, and if it starts to make trivial changes to the constitution for reasons of political expediency, how are the British public to be protected against their Government?
Jacob Rees-Mogg
It is a matter not of trusting us, the politicians, but of trusting the British people who send us here in the first place. If we start playing fast and loose with the British constitution, there will be an election and we can be thrown out. If we use our powers arbitrarily, we can be thrown out.
There are in fact pieces of superior law under our constitution, one of which is the Parliament Act 1911, which specifically protects the life of a Parliament against an extension purely by the House of Commons. There is therefore an in-built reservation to ensure that we have to go back to the electorate and get their permission to carry on with what we are doing. Arbitrary Governments that extend themselves beyond the powers that are thought to be legitimate find that the British people want to get rid of them. Indeed, that was a major issue at the last election. It was one of the areas in which the Conservatives and the Liberal Democrats came closely together, in that we were advocating the ancient liberties of the subject against the Labour party, which was constantly infringing those liberties and placing more and more power in the hands of the state. The British electorate, in their wisdom, decided to put into office two parties that were committed—at least they were when they were in opposition—to preserving the freedoms of the British subject. We have seen it tried and tested, and it actually works.
A further point is that once we start saying that this House of Commons or these two Houses of Parliament are not capable of making these decisions, and that they must be handed over to unelected judges overseas, we undermine this House’s confidence to deal with matters properly and we give an incentive for it not to take its responsibilities seriously. Why? Because if we get it wrong, there is somebody else who can clear up the mess. Leaving the responsibility here makes us take more seriously the duties we have as parliamentarians and the obligation we have to protect our constitutional settlement.
Let us come back to the key issue of legitimacy. I choose the word “legitimacy” rather than “sovereignty” deliberately, because it is about doing what is acceptable to the people to whom it is being done, and for that we require a body of people with a sufficient unity of purpose to accept that what is being done to them has legitimacy even when they themselves are in a minority in opposing it. When we in Britain are in a minority opposing a judgment of the European Court of Human Rights, we do not feel that that there is such legitimacy or that the majority that has overruled us has a proper authority to do so. When our courts come out with a judgment that does not relate to human rights, we may rail against it and be cross about it, but we accept it as legitimate. When Parliament passes Acts that we as individuals do not like or that minorities oppose, we accept that Parliament has the legitimacy to do it because we attach ourselves to the whole of the United Kingdom in acceptance of that legitimacy.
Rory Stewart
My hon. Friend is making a powerful and moving speech, and a lot of it is immensely appealing and convincing. There is a problem, however, which is the fact that we set up this Court and we seemed to be quite happy with it so long as it was going around telling other countries how to behave. All these problems of illegitimacy and of undermining the sovereignty of other people’s Parliaments did not worry us at all until this Court that we created turned around and started telling us off.
Jacob Rees-Mogg
I do not disagree at all with my hon. Friend. I think we do take the view—the rather foolish view—when we set up these Courts that they will never affect us. Let us take the International Criminal Court. Nobody ever thinks that any senior British politician could be hauled in front of it. If that ever happens, we might suddenly decide that we were not so keen on the ICC. I admire the judgment of the Americans who have not joined the ICC because they recognise that if it is justice for one, it is justice for all.
As a strong independent sovereign nation with a history of behaving well going back way before the Magna Carta, I think that we ought to be able to settle our rules for ourselves and should be cautious of setting up courts that are essentially victors’ justice. In setting up the European Court of Human Rights, what we were really doing was saying, “We have defeated all these nations of Europe. They have had terrible dictatorships before. They are not like good old Blighty, so let us therefore show them how to behave like gentlemen by giving them this Court and this convention.” Then, when they started saying to us, “Well, you, too, must behave like gentlemen”—and of course like ladies in this modern age—we did not like it because we thought it affected and undermined our sovereignty.
To sit on the fence to a degree, I think that providing some guidance after the war might have helped for a limited period some of the immature democracies to reform and rebuild themselves, but I no more think that Germany or Italy need to be guided by a European Court of Human Rights than does the United Kingdom.
Rory Stewart
The challenge to what my hon. Friend is saying is that it is not primarily Germany or Italy about which people would be concerned. What would concern people would be that if we left the European Court and dismantled the infrastructure that we have created, what is at present the Court’s real purpose and influence—which seems to be directed towards Russia and countries throughout eastern Europe—would be undermined. It is the countries that are still, perhaps, in the position that my hon. Friend described, for whom the Court exists, and it is for their sake that we would be tempted, simply on the basis of the foreign-relations contribution to those countries, to continue to participate in such organisations.
Jacob Rees-Mogg
I am afraid that that was the former mandarin speaking. It is the Foreign Office view of the world that we must do all these things that undermine our own constitution because it makes it nicer for us when we are dealing with our colleagues overseas. It may influence them a little, and so forth. I would never give up one whit of our constitution for a minor diplomatic advantage. The proportion of the benefit to us of guiding our own constitution and safeguarding the democracy of the British people, in comparison with thinking that we can influence President Putin by half a—
Rory Stewart
My hon. Friend is making a powerful point, but it is undermined by his earlier statement that after the second world war it made sense for us to give a limited amount of sovereignty to this organisation, in order to create exactly the peace and stability in Europe that was so central to the welfare and security of the British nation.
Jacob Rees-Mogg
I am glad to say that I did not undermine my own argument. My hon. Friend may not be aware that until 1969 Henry VIII’s Act in Restraint of Appeals was still on the statute book, and that until 1969 it was treason to take an appeal out of this country to a foreign court. Between 1950 and 1969, therefore, it was impossible, illegal, treason, for the European Court of Human Rights to rule against the United Kingdom. We had set something up that was very beneficial for people who had emerged out of war without there being a risk of anyone’s appealing to it—except in Northern Ireland, which repealed the Act a little earlier, but that is slightly beside the point. We were safeguarded by our wisdom in not repealing rather more ancient laws—rather more ancient laws with which I have a certain sympathy, as it happens.
I think that it was when we had the confidence to be a nation standing on our own two feet that we said, “We will not allow any appeals to go outside this country.” A case in point at that time was the papacy. When we felt ourselves to be a weaker nation, a nation in decline in which the business of politics was managing decline and in which we could not look after ourselves, we had to have a foreign court to serve as the final safeguard and fallback for what we are trying to achieve in this country. I simply do not believe that that is right or legitimate. I do not believe that our membership of the European Court on Human Rights has sufficient influence on other countries.
Rory Stewart
If we were to adopt my hon. Friend’s proposal and leave the European convention and the European Council, how would he explain to the other European countries that, having created the European Court and drafted the convention, then trumpeted it and helped to impose it on other Governments, we had suddenly decided that we no longer wished to be a party to it?
Jacob Rees-Mogg
We have created an awful lot of things that we do not necessarily still run. After all, we created Belgium, and we do not claim to run that. I think we can fairly argue that our legal system and tradition are fundamentally different from the continental system, and that over generations the common law has built up protections that differ from those in the universal declaration of human rights. Indeed, it was probably a mistake for us ever to sign that declaration.
Rory Stewart
In other words, my hon. Friend would say to the European people, “We created the European Court of Human Rights 60 years ago, and we—Conservative and Labour Governments—spent a long time saying that it was a great force for civilisation and progress. We sent some of our most distinguished barristers and judges to the Court. We celebrated its judgments. We used it to put pressure on eastern Europe and Russia. But now we have decided that it was all a terrible mistake. We will leave, and we will encourage other countries to leave as well. The whole European Court system can collapse, and the consequences for our commitment to human rights, and our attitudes towards eastern and central Europe and Russia, can take their own course.” Is that a rough version of what he would say?
Jacob Rees-Mogg
My hon. Friend says we celebrate European Court of Human Rights judgments, but it is hard to think of many of them that we have celebrated. I do not remember any jubilee parties having been held to celebrate its judgments. Indeed, as he will be aware, we dispute and dislike many of its judgments.
Rory Stewart
I think my hon. Friend would agree that we celebrated very strongly the European Court’s rulings on the issue of habeas corpus, of which he is, rightly, so proud. We took enormous credit for the fact that the European Court introduced elements of habeas corpus, the notion of no detention without trial, and the prohibition on torture, which has transformed the political economy and human rights of southern Europe. We were immensely proud of that, and it was part of our foreign policy and our contribution to our own security. Are we now moving away from all of that, or are we saying times have changed?
Jacob Rees-Mogg
My concern is how the European Court of Human Rights operates in this country. Just because we leave it does not mean other countries cannot remain part of it. The key reason why it is so difficult for us is because of the differences between the common law and Napoleonic law and the fundamental basis of rights.
In England and Wales, we have, under the common law, the right to do anything that is not specifically proscribed by law. That is a very different system from the continental system, under which people have the right to do what they are allowed to do. For a European system, therefore, a detailed list of rights setting out what people can do is needed, whereas here people only lose rights when Parliament, through its democratic process, has decided that they need to be taken away in the interests of the state. That might be someone’s right to liberty for having committed a crime, or it might be their right to vote because they have committed a crime and lost their liberty, but those decisions are made under the common law by Parliament. It is not a question of having a list of rights defining what people can do and then assuming anything not on that list is not allowed. Our system of rights, in common with that of the Americans, produces a much freer and better system—which protects ancient liberties, which I hold very dear—than a system of specific rights, where anyone who comes into contact with them may be provided with a judgment, as opposed to being free to do anything that is not specifically not allowed.
I am, of course, in favour of some aspects of the convention. I do not want us to pull out of it and then start torturing people, but it is worth bearing in mind why the common law did not have torture, and how our system developed without torture whereas the continental system developed with torture. It all goes back to 1215, when, interestingly, we get Magna Carta and they have the fourth Lateran Council, which states that trial by ordeal cannot be supervised by the Church, and because the Church cannot supervise it, it cannot be the will of God, and therefore in a continental system someone can only be found guilty if a confession is extracted. Hence, for very good reasons—for moral reasons—the fourth Lateran Council gets rid of trial by ordeal, and the law of unintended consequences means it results in torture being routine in the continental judicial system. By chance and good fortune, at the same time, because the barons have come up against the King, we get the rights of liberty preserved and the continuation of the development of the jury system as a means of getting to truth, while also dropping the right to trial by ordeal because then, in pre-Reformation times, we were still tied up to the doctrines of Rome. That demonstrates that our systems diverged very sharply. Of course people living under a system in which torture forms an instrumental part need rights to be defined more carefully, and they have not had them before, so they needed them to be imposed.
Rory Stewart
I promise this will be my last intervention. My hon. Friend spoke very well about the notion that deeply rooted in Magna Carta is a British immunity to any of these temptations. The problem, however, is that we are facing very difficult kinds of challenges today. It is very difficult to believe that the kinds of mechanisms my hon. Friend is talking about, which are primarily to do with the expression of a Back-Bencher’s opinions in the House of Commons and elections to this place, can have a fundamental effect on issues such as predator drones. How would he deal with the question of predator drone assassinations? How would he explain how British tacit participation in and knowledge of assassination by predator drones has continued for three years without this Parliament touching on it at all and, as far as I can see in my junior position as a new Member of Parliament, without having any intention of touching on it in the next few years? In the absence of any code of rights—in the absence of anything to which one can appeal in order to protect people—how on earth is one going to have protection for citizens?
Jacob Rees-Mogg
That is essentially a matter of politics and the doctrine of the just war. If we are involving ourselves in predator drone strikes, we must ask ourselves whether the three criteria of a just war are met. Is there sufficient cause? Are we a legitimate authority? Is there is a reasonable prospect of success? It is for the Government to make that case and if they cannot do so, Parliament will ultimately have to decide. However, I would certainly not put the safety of the nation in the hands of a bunch of judges overseas—that is the worst possible example for my hon. Friend to use, even though I am sympathetic to his basic point that using drones is not something with which the British should be involved. The decision on that—the decision on our own national security—must surely rest with the Executive, held to account by the legislature.
That is why we are here and why MPs have been here since Parliament was first assembled; we are here to bring redress of grievance against the Crown and against the Ministers of the Crown. It is our job when representing our constituents, and in the legislation that we vote on and the questions we table, to redress grievance where the rights, liberties and freedoms of our citizens have been undermined. We do not need an overseas court to do that. Indeed, to the extent that an overseas court does do it, that reduces our ability to do it for our constituents, because the overseas court appears to be the legitimate authority for redress of grievance rather than this House.
The Bill is a step in the right direction, although I will not agree with every dot and comma of it. If I am asked to serve on the Committee, it will be a privilege and an honour to do so. I would like to see the Bill slightly simplified and to see it remove the European convention on human rights altogether. Indeed, I am not entirely sure that I would not like to see the Act in Restraint of Appeals return to the statute book to apply a slightly higher penalty for appealing outside this kingdom to foreign courts, because it is, in essence, the legitimacy of our democracy, the legitimacy of Parliament and the legitimacy of each Member here representing our constituents that defends the liberties of the British people. If we fail—if we do not defend those liberties and we pass them off to somebody else—the British electorate can get rid of each and every one of us and put in our place people who will stand up for their liberties.