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I shall refer to another legal expert. A Lenten talk was given on Radio 4 on 14 March by no less a figure than Cherie Booth, in her role as president of Barnardo’s. She said:
“Fifteen year-old Andy from Newry in Northern Ireland was brought before the court for attempting to attack the police. As part of a community responsibility order, he met with police, fire service and ambulance crews who told him what it’s like to be
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I quote that story because I want more than ever to see us achieve, with the continued downward and upward pressure on human rights—we should all be keen in that endeavour—less of the weight of law and more of an opportunity for responsibility to balance rights. My concern is that a UK Bill of Rights and the continuing regulatory rights culture that we have seen around us, and all the pressure it brings to stand up for, defend and even litigate for rights, has not necessarily moved us to understand the place of duty, responsibility and fair citizenship.
3.22 pm
Lord Thomas of Gresford: My Lords, I, too, congratulate my noble friend Lord Lester on securing this extremely interesting and important debate. I shall focus on the requirements of Section 19(1)(a) of the Human Rights Act, which provides that the Minister of the Crown in charge of a Bill in either House of Parliament must make a statement to the effect that, in his or her view, the provisions of the Bill are compatible with the convention rights. That is the statement of compatibility, with which we are all too familiar. The provision was brought into force in November 1998, and we constantly see on the cover of any government Bill the short statement:
In all parliamentary systems which have adopted a Bill of Rights or its constitutional equivalent, there has been a debate about whether the judiciary should have the sole authority when claims of rights clash with political decisions; in other words, whether judicial interpretation must prevail over political judgment. In some systems in the United States, to which my noble friend Lord Goodhart referred, and in Canada in particular, the judiciary is authorised to invalidate legislation that is inconsistent with guaranteed rights. My own first contact in this field was with the Hong Kong Bill of Rights, to which the noble Lord, Lord Wilson of Tillyorn, as Governor of Hong Kong, gave his assent in June 1991. It incorporated the provisions of the International Covenant on Civil and Political
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In its early days, the Hong Kong judiciary, with this new power to strike out legislation, exercised it with a will. I appeared for the appellant in the first test of its judicial activism in the Privy Council in the case of the Attorney-General v Lee Kwong-kut in 1993. It dealt with the reverse of burden of proof in a criminal charge, an issue, incidentally, that we were debating yesterday in the Serious Crime Bill; it is important. The noble and learned Lord, Lord Woolf, expressed his disquiet at too much judicial activism and cautioned that questions of policy remained primarily the responsibility of the legislature. He held that a strict attitude towards statutory defences would merely encourage the legislature to adopt a different drafting style which would not assist individuals who were charged with offences. He said:
“While the Hong Kong judiciary should be zealous in upholding an individual’s rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public”.
That was colonial legislation introduced in 1991 by the British Governor, the noble Lord, Lord Wilson.
The Human Rights Act, which we introduced here in 1998, followed a different model that was closer to that adopted by New Zealand in 1990. In that, the judiciary is not authorised to invalidate legislation that is inconsistent with guaranteed rights. As noble Lords will know, the Human Rights Act obliges courts to interpret legislation so as to be as compatible as possible with convention rights, but the court may make a declaration of incompatibility which can engage a fast-track mechanism to enable Parliament to amend that legislation.
However, there is no obligation on the Government to use that mechanism. There is no requirement even for them to comment or to give reasons for disagreeing with the court’s ruling. The problem in the United Kingdom, deriving, I have to say, from a first-past-the-post electoral system, is that strong party discipline results in very few checks on decisions of the Executive. The concentration of power in the hands of the Prime Minister of the day, barely modified even by collective Cabinet decision-making, means that guaranteed rights can be ignored or written over. The noble Earl, Lord Onslow, provided a list: the removal of jury trials in serious fraud cases and the introduction of ASBOs, control orders and, now, serious crime prevention orders by using a civil standard of proof and civil methods of proving the issues involved.
I recognise, however, that there are some limitations. No Minister wants to be criticised for having the legislation for which he or she is responsible declared by the courts to be incompatible, hence the provisions of Section 19, by requiring a statement of compatibility,
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The debates that we have are informed by the reports of the Joint Committee on Human Rights to which the noble Lord, Lord Lester, referred. That committee has the important function of advising both Houses whether rights have been fully respected in the Bill in question. In addition to its consideration of representations from a wide body of opinion, the committee has the power to question Ministers to seek explanations and clarifications of legislative proposals. If a statement of incompatibility is made by a Minister under Section 19(1)(b) of the Act, there is inevitably controversy.
As a result of the Anti-terrorism, Crime and Security Act 2001, the Home Secretary entered a derogation from Article 5.1(f) of the ECHR and the Joint Committee on Human Rights was not convinced that the three requirements set out in Article 15 were fulfilled. In particular, the committee drew to the attention of both Houses the question whether a public emergency existed which threatened the life of the nation. It drew to our attention the overly broad definition of a terrorist and the lack of due process in relation to detention orders. There was a robust debate which led to some amendments, in particular a requirement of reasonableness relating to the decision to certify a person as a suspected international terrorist, and your Lordships will recall the introduction of a sunset clause.
However, in the case of A v Home Secretary in December 2004, the Judicial Committee of this House, sitting as a Bench of nine Lords of Appeal, held that indefinite detention under the Act was contrary to the convention and it made a declaration of incompatibility. Three years have gone by with this legislation in place and it is unsatisfactory that so many years may go by before the courts have the opportunity of pronouncing on guaranteed rights issues because during that time individuals caught in the system may suffer severely. Greater parliamentary scrutiny, therefore, is absolutely essential to ensure that rights are respected in the making of new statute law and here is where the noble Lord, Lord Patten, and the noble Earl, Lord Sandwich, come in. It is not the exclusive territory of liberal totalitarian secular lawyers to determine years later whether an Act of Parliament is incompatible with the convention. It is a matter that should be at the forefront of our discussions when we actually make that legislation.
While the Joint Committee on Human Rights performs a vital and important role, Parliament should be better informed at the beginning of the legislative process about the Government’s evaluation of rights issues and the reasoning that lies behind these formal statements
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I draw to the attention of the Minister an important article interpreting a Bill of Rights by Janet Hiebert of Queen’s University, Kingston, Ontario in the British Journal of Political Science published in 2005 by the Cambridge University Press. That compares the systems of New Zealand, Canada and the United Kingdom and I am sure she and her department would gain a great deal from it.
As we have in this country consciously adopted a system which denies to the judiciary the final say when determining constitutional validity, political scrutiny of impending legislation is vital. If a Government give their reasons, they can be properly examined by the Human Rights Committee, considered by the public at large and, most importantly, tested in debate. Along with my noble friend Lord Goodhart, I have often said that the Human Rights Act is the Government’s most important legacy—indeed, it is probably the only positive one. It has helped to nurture the culture of respect for rights to which my noble friend Lord Lester referred.
Criticisms of legislation by parliamentarians based on human rights considerations are not to be considered as the usual cut and thrust between opposition and government. There are few electoral votes in arguing for the rights of minorities. The noble Lord, Lord Sheikh, referred to the Afghan hijackers. I appeared in that case; they were lawyers and teachers who were escaping from the Taliban. It would have been a little unusual for us to send them back to Afghanistan when we were invading it to get rid of the Taliban. They were protected by human rights legislation. The Act should not be seen as a veto on legislative or executive action.
The considerations of human rights are essentially assertions of the norms—the noble Baroness, Lady Whitaker, referred to the fair play concept—and values of our humane society. Parliament agreed the Human Rights Act in 1998, in the year 2007, it should be fully respected.
3.36 pm
Lord Kingsland: My Lords, I add my congratulations to those already delivered by many other of your Lordships to the noble Lord, Lord Lester of Herne Hill, on initiating this debate, which I think everyone will agree has been first class.
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Many things of real constitutional value have flowed from the arrival of the Human Rights Act on our statute book. I can think of two particular principles that have been greatly advanced and enriched by the jurisprudence of the past 10 years. First, the principle of equality, rather undervalued by the common law, has shown a remarkable development by virtue of our courts applying the European Convention on Human Rights. Another principle that has prospered has been that of non-discrimination. In his own appearances in the courts, the noble Lord, Lord Lester of Herne Hill, has made a vital contribution to that.
However, the Human Rights Act has not, in my judgment, commanded the public respect that it ought to have done and that it deserves. There are a number of reasons for this. First, there have undoubtedly been some foolish or misplaced decisions—I do not know how one would properly describe them—by public servants in the name of human rights that have benefited people who either did not deserve those benefits or at least were not perceived as deserving them. The noble and learned Lord the Lord Chancellor has spent a great deal of time in the past two or three months agreeing that some of these decisions were foolish—I am thinking particularly of the one where a certain police force seemed reluctant to issue the photograph of an escaped criminal. The noble and learned Lord has promised that new directions will be delivered to civil servants and others serving in public authorities to ensure that incorrect interpretations of the human rights legislation will be, if not entirely eliminated, at least minimised.
The second reason is that, despite the fact that the Human Rights Act is a product of the present Government, it continues to receive at best only lukewarm endorsement from Ministers. This is a particularly unattractive factor, especially when direct attacks are made on judges who base their decisions on human rights legislation, which is what the Act requires them to do. When political leaders make such attacks, it is no wonder that from time to time the public call its value into question.
Thirdly, my noble friend Lord Onslow was at pains to point out that, far from protecting the traditional rights provided to us over the centuries by the common law, the Act has often proved useful camouflage for promoting legislation that undermines them. In developing his argument under Section 19, the noble Lord, Lord Thomas of Gresford, made glancing references to these. One thinks of jury trial, habeas corpus and the conversion of what ought to be criminal offences into civil offences in order to lighten the standard of proof on the prosecution. One thinks of what I find a particularly offensive development in our criminal law—the changes made to the propensity rules in the Criminal Justice Act 2003.
Before the Human Rights Act was on the statute book, nobody would have dreamt of questioning these very hard earned, long established common-law rules. Yet we are now told that these changes are human rights convention compatible. The reason for this is that jury trial and a great deal of the evidential protections that flow from it are an unfamiliar feature on the continental jurisprudential terrain. Therefore,
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The noble Lord, Lord Goodhart, is chairman of Justice. I have the honour to serve as a vice-chairman of Justice under his benign leadership. We are both engaged in a project in Justice that seeks to assess whether the next stage in the development of human rights in the United Kingdom ought to be through our own home-grown legislation. My right honourable friend Mr David Cameron has established a committee in the Conservative Party chaired by the noble and learned Lord, Lord Lyell of Markyate, to address precisely the same issue. When Justice and the Conservative Party simultaneously think that there is a problem, it must be a problem well worth looking at.
If a Bill of Rights proves to be a desirable future initiative, one of the most important contributions that it will make will be the protection of the defendant in criminal trials. The right reverend Prelate the Bishop of Chelmsford rightly drew our attention to the frequent statements from government Ministers about rebalancing criminal law and criminal evidence in favour of victims, with the effect of reducing the rights of the accused. In other words, the defendant is more likely to be convicted. Nothing offends human rights more than a system that is prone to punishing the innocent. One of the objectives of a British Bill of Rights would be to make sure that we do not have a system that is prone to that.
There are other objectives of such a Bill. The noble Lords, Lord Goodhart and Lord Lester of Herne Hill, might not agree with what I am about to say; they will have their own views about what ought to appear. One area that I am particularly concerned about—I know that the noble Baroness is intimately involved in it at the moment—is the question of due process in administrative tribunals. We are establishing a common tribunal system with a common administration, but each one of the 70-odd tribunals has its own system of due process. In some cases, the system is absolutely right for the tribunal’s objective; in other cases, the process is wholly inappropriate. I would like to see some basic standards of due process set out for tribunals.
My noble friend Lady Verma talked about us being the most photographed nation in Europe. How right she is—and it is not only a question of being the most photographed. We must be one of the nations that suffer most from invasions in our privacy. Information that government departments can obtain from us can now be shared with most if not all other government departments, for purposes that we do not know. This is another area that a Bill of Rights would address.
My noble friend Lord Patten reminded us that important aspects of religious freedom ought to be enshrined in such a Bill. I do not want to enter today into whether the list that he provided is the right one, but he has an important principle, which ought to be considered by any drafting committee.
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The draftsmen will also have to confront some awkward questions, particularly in the area of terrorism. We are obliged, not only by Article 3 of the convention but also under the international Convention against Torture, not to deport a suspected terrorist where there is a real risk that he will suffer torture in his country of destination. Anyone who is complicit in a series of events that leads to somebody being tortured is effectively now committing an international crime. This is a real problem for us when we cannot prosecute people for the offence that we allege they have committed. I am not pretending for a moment that a Bill of Rights will make all the issues that we face easier. However, there are certainly gaps in the convention that we need to fill.
A number of your Lordships, particularly the noble Earl, Lord Sandwich, the noble Baroness, Lady Young of Hornsey, and the noble Lord, Lord Hastings of Scarisbrick, reminded us that the issue of human rights is an international problem and that, compared with many other countries, we are extremely fortunate. The noble Earl, in particular, rightly said that we perhaps ought to spend rather less time engaged in navel-gazing and more time exporting the remarkable experiences that we have had in developing our human rights legislation and doing our very best to ensure that human rights breaches are minimised in international society. I know that that is a concern. The peroration of the speech made by the noble Lord, Lord Lester of Herne Hill, addressed precisely that issue and the extent to which we ought now to be more directly engaged as a people in the United Nations conventions on various matters that have been raised by your Lordships today. That goes beyond the defined scope of today’s debate; but we should remind ourselves that those matters are nevertheless of great importance.
I see that I have strayed a minute beyond my permitted time. In those circumstances, I shall hasten to sit down.
3.50 pm
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I do not mind if the noble Lord or the noble Lord, Lord Thomas of Gresford, strays, as noble Lords have much to say. I congratulate the noble Lord, Lord Lester, on this debate. There are few in your Lordships’ House who can claim to have as long and expert an association with the human rights traditions of this country and issues of equality and discrimination. It is a pleasure to be able to work with him on occasions, of which today is one. I am privileged to have that opportunity.
Contributions have ranged across a variety of different issues such as religious freedom, the Act of Settlement, the Spanish conquest, legal aid, trial by jury, ID cards, the alienation of some of our communities, a Bill of Rights, cannibalism, the horrors of domestic violence and child abuse, Maria’s story, the plight of Chechen women, the misery of slavery, statements of incompatibility, trafficking and the DCA budget, to name not all, by any means. Anyone listening to this debate who has any doubt of
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