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I am puzzled and confused by the Conservatives’ position on this issue. They say that they want to introduce a modern British Bill of Rights and by implication—or, rather, explicitly—they wish to repeal the Human Rights Act. That is the Conservative position. Setting aside the fact that that appears to be a bit of a back-of-an-envelope policy devised by the right hon. Member for Witney (Mr. Cameron), I notice that at the time when it was released he had not consulted his party colleague, the right hon. and learned Member for Rushcliffe (Mr. Clarke), who was supposed to be leading a study group on the constitution and who described the proposals
as “xenophobic and legal nonsense”. That might commend them to the hon. Member for Stone (Mr. Cash); that might be the settling argument so far as he is concerned.
Setting that aside, I really do want to understand what the Conservatives are talking about. Apparently—I think that the hon. Member for North-West Norfolk said this—they do not intend to withdraw from the European convention on human rights. So every single provision and article of the convention would still be law in this country, and would still be applicable to any British citizen through application to the court in Strasbourg. Of course, were the Conservatives to change their mind and to withdraw from the convention, that would mean that we would also withdraw from the European Union. Again, that is an argument that would commend itself to the hon. Member for Stone and to some others, but as I understand it, that is not the Conservative party’s position.
Mr. Dismore: The Conservative Front-Bench spokesman raised the issues of the margin of appreciation and of proportionality, which are of course interpreted by our courts domestically. The European Court of Human Rights is reluctant to interfere with such domestic court decisions unless absolutely necessary. If there is no domestic court ruling, it is more likely that a claimant would be found against when interpreting the margin of appreciation and proportionality, rather than the other way round, simply because we would not have that domestic element to rely on.
Mr. Heath: I am grateful to the hon. Gentleman for raising that point, which I was about to come to. What would be the practical implications of applying such a dual regime? A lot has been made of the Chahal v. United Kingdom judgment, which, we must keep reminding ourselves, was made in 1996, when the Conservatives were on the Government Front Bench and the Human Rights Act had not even been conceived of as possible. The Chahal case is the extant jurisprudence on the subject, and the Conservatives are somehow suggesting that they will extricate themselves from the implications of that case without extricating themselves from the European convention on human rights. I cannot see how that can be done. Perhaps there will be a change in the European ruling; perhaps the Ramzy v. Netherlands case will come to a helpful conclusion, which is what the Government want. However, unless it does, so far as I can see, the law will remain unchanged and no amount of tinkering here will affect that binding jurisprudence elsewhere.
The Conservatives also say that they will be in a position to enter reservations on the European convention on human rights, but they must know that under article 57, it allows reservations to be made only on entry—on signing and ratifying the convention—and then only in respect of legislation that is in force at that time. So I am afraid that they have missed the boat regarding that opportunity by 57 years.
The margin of appreciation, to which the hon. Member for Hendon referred, does not apply only to the Germans because they have their basic law; it applies to us and to every signatory to the European convention on human rights. It is already applicable, so there is no gain whatsoever to be made in that regard. Far from being a gain, having two competing sets of
human rights requirements would be the worst of all positions. There would be one set established by the European convention on human rights, and justiciable in Strasbourg; and another set established by the Conservatives’ British Bill of Rights—a local law for local people, providing local rights that would somehow be interpreted in a different way. Of course, they would not be interpreted differently, because people would go from one court to the other, there would be competing decisions and the result would be a legal nightmare. That is not a sensible provision.
If, instead of that, the Conservatives are talking about a constitutional Bill of Rights, for which we have argued for years—a provision that sets out the rights of the British people in democratic terms and avoids the abuse of power by the Executive—we are with them, and we have something on which we can do business, because that has been part of our policy for a long time. However, if they are talking about a Union Jack-stamped equivalent of the European convention on human rights, I am afraid that it is a non-starter.
Many others wish to speak, so I will conclude by saying simply this. It is very difficult to strike a balance between the rule of law and the difficulties that society faces, particularly, as we are often reminded, in the face of terrorism. It is not easily done, which is why we need the bedrock of the rights of the citizen. It is the easiest thing in the world to combat terrorism by just locking everybody up and throwing away the key. There would be no terrorism then, but it is not the British way—happily, it is not the European way since the European convention on human rights—and we should not espouse it. I am all for the rule of law, but I am all against the rule by tabloid editors, and that is why the Human Rights Act is so important.
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Nia Griffith (Llanelli) (Lab): I am grateful for the opportunity to speak in this important debate. I shall not repeat the many excellent points that were made by my hon. and learned Friend the Member for Redcar (Vera Baird), my hon. Friend the Member for Hendon (Mr. Dismore) and the hon. Member for Somerton and Frome (Mr. Heath). Given the time constraints, I want to focus on two issues: the meaning of “public authority”, and the Government’s commitment to ensuring that the public and the wider public sector have a better understanding of the Human Rights Act.
The understanding of the meaning of “public authority” is vital in ensuring the effectiveness of the HRA. There are many different providers of services to the public. Charities and voluntary groups provide services largely through taxpayers’ money via grants and agreements. Private companies receive public money in return for the services that they provide. Charitable groups provide services largely through donations from the public. Other providers receive money from the public in the form of lottery funding. The list goes on. I argue that, wherever a service provider is funding a service thanks to money that can be traced back to members of the public who are not paying for a direct transaction themselves as consumers but paying a third party to provide services for others, those third parties should be considered as public authorities and should have to comply with the HRA.
Charitable status in itself implies a public subsidy because of the tax concessions, so any body that has such status should also come under the HRA. If any such body complains that it cannot afford to comply with the HRA, it should seriously question whether it should be involved in the activities that it is undertaking. I am sure that the public giving donations or paying taxes do not want their money to prop up projects or regimes that do not respect users’ dignity and human rights.
I am therefore concerned about the fear, expressed in the Department for Constitutional Affairs’ review, that widening the definition of “public authority” could drive private providers out of the market. For a start, such a view could lead to considerable inconsistencies in different parts of the country. There could be a very different situation in an area in which an authority continues to manage a service in-house, compared with one in which its management has been contracted out. It would give rise to the absurd situation whereby redress against a public authority and a private provider would have to be approached in different ways. Far more worryingly, such an approach would send out the message that the HRA is of no concern to private providers.
The HRA is important not only for its legal implications, but for the culture that it creates. In other words, the Act is not simply about offering redress to those whose rights are infringed but, we hope, about creating a culture in which rights are respected and individuals do not have to turn to the law. It is therefore important to ensure that any provider that receives public money to offer a public service is included in the meaning of “public authority”.
We also need a positive promotion of what the HRA actually means. Let me draw a parallel. All but nine of the 785 MEPs are white, but five of those nine are British. While I am concerned about that very low figure for the whole of the EU, we can at least take pride in the fact that five of them are British—that we have made greater progress than many of our European partners in the representation of ethnic minorities in public life. That does not happen by accident. EU officials in Brussels may say that there is nothing legally to prevent members of ethnic minorities from becoming MEPs, but we know from experience that it takes more than that. It requires recognising that the matter is an issue and that we need a positive action plan to take steps to ensure more comprehensive representation of all sectors of society. It is exactly the same with human rights. It takes more than the mere existence of the Human Rights Act to engender a real understanding of the principles and how they translate into the realities of everyday life. That is a much greater task and has to be tackled on several different levels. That is why I welcome the commitment in the DCA review to ensuring that the public, and the wider public sector, are better informed about the benefits that the Act can provide for ordinary people.
We could start with education. Learning about human rights is an important part of citizenship education, but we need to ensure that it is delivered well. In some schools, citizenship education is tacked on to personal and social education and is often delivered by form teachers who have no preparation for it. While they may
be enthusiastic and inspiring teachers in their own subject, they may have to deliver material with which they are scarcely familiar themselves. Indeed, if they are following a class of children from the age of 11 to 16, teachers may teach that lesson or module only once in five years. Citizenship education is far too important for that.
Citizenship education should include helping young people to develop a meaningful understanding of human rights and it needs to be delivered by a team of specialist teachers who have the time to prepare the lessons thoroughly and deliver them to numerous classes, so that they develop an expertise in dealing with the issues that young people raise. Teachers should also be able to inspire and stimulate meaningful discussion.
The same needs to happen throughout Government. We need concerted programmes across the whole of Government, throughout the public sector and for all of those who are acting in the capacity of the public sector, so that there is a proper understanding of what the Human Rights Act means in practice and of when it is relevant and when it is not relevant.
Some sectors of society and the media have taken a perverse pleasure in making fun of what they call political correctness, ignoring the fundamental thinking behind the concept—ensuring that sectors of society that have frequently suffered discrimination and abuse are not subject to sexist, racist, homophobic or other disparaging comments—and they are doing the same thing with the concept of human rights. The term has been bandied about carelessly and cited as a factor when, as my hon. Friends illustrated, it was completely irrelevant. Such carelessness, or even downright ridiculing, is damaging. First, it fudges the whole issue of what human rights are, why they matter and how the legislation can provide valuable guidelines to what we in a civilised society may expect as a norm when it comes to respecting the dignity and rights of others. The issue is not just the threat of court action or actually going to court, but that the guidelines should be fundamental to our thinking.
Mr. Cash: The issue of Catholic adoption agencies raises the question of the provision of public services in the context that the hon. Lady described. Does she accept that there are two conflicting issues? First, there is the question whether there should be discrimination against people on grounds of gender and so on. Secondly, under article 11, there is the equally important and entrenched right of freedom of religion and of conscience. How does she reconcile those two provisions in relation to adoption agencies?
Nia Griffith: I see a fundamental problem with a charitable religious organisation doing something with Government money but wanting to be exempted from legislation. However, that is not relevant to the Human Rights Act, which does not cover adoption by same-sex couples. The right to marriage does not include anything about civil partnership. However, I agree that there is an issue if people who use public money do not want to comply with the law of the land.
We need to be clear that, when we are talking about human rights we are usually talking about the rights of ordinary people—the vulnerable, the elderly, the disabled,
the sick and the young. Careless talk about human rights sometimes implies that individuals or groups of individuals should not have rights. That is dangerous thinking and ignores the concept of the universality of human rights. Of course, difficult situations arise in which rights can conflict, and an appropriate balance has to be struck. But we have to remember the thinking behind the Human Rights Act, which was to bring the issue of human rights home. Instead of the need to spend years taking a case to the European Court of Human Rights, the same protection can be provided in this country. What matters now is that we ensure that there is proper understanding throughout society of what the HRA means and its sensible use to ensure the rights and dignity of all.
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Mr. Richard Shepherd (Aldridge-Brownhills) (Con): Listening to the debate so far, one wonders why there was a need for it. The confidence of the Government, the Chairman of the Joint Committee on Human Rights and indeed the hon. Member for Somerton and Frome (Mr. Heath) would seem to admit no difficulties in respect of the HRA. The Minister gave a curious history of the issue. The issues that confronted the greatest Labour Government of the 20th century were the very issues that this House and this country are still tussling over.
The Attlee Government was concerned about questions of enforceability and the divergence between the civil and common law approaches. They believed in a narrowly defined series of rights, whereas the legal tradition of France, Italy and Belgium preferred the evolution of a jurisprudence of the rights of a court. Theirs was the civil law tradition, as opposed to the common law tradition. The Attlee Government were also opposed to a system of individual petition and a court of compulsory jurisdiction. However, the exigencies of the day—including the political anxieties of the European continent, the coup in Czechoslovakia and the majority of just six after the 1950 election—meant that the draft convention was accepted.
Lord Chancellor Jowitt regarded that acceptance as inevitable for political reasons, even though he wrote in his memorandum to the Cabinet Committee that, from the point of view of administration of law, he regarded that necessity as “an unqualified misfortune”. It was ratified by the United Kingdom in March 1951 with no reservations and it was a seminal piece of legislation. It was a major constitutional break with British practice. It was not quite on the scale of the European Union accession treaties, but it opened up our system of law and the sovereignty of Parliament to challenge by an extraterritorial court. It committed the United Kingdom Government in international law to protecting certain of the rights of its citizens. The proper relations between the citizen and the state were now a legal as well as a political issue. The Rubicon was crossed.
The right to petition was granted in 1965, but the first case that the United Kingdom Government lost was Golder v. United Kingdom in 1975. In that case, the court implied in article 6 a right of access to the courts. I do not quibble with that as it seems logical in itself, but its importance was that a contracting state was bound by more than the rights that appear on the face of the convention. No one reading the original convention
could possibly have an objection to its provisions; they are a summation of our common law rights. Some of them are in our Bill of Rights and they are repeated, almost word for word in some articles, in the first 10 amendments to the United States constitution. The importance of those rights is more than that of those that appear on the face of the document. Counsel for the United Kingdom argued that the UK
“had no intention of assuming, and did not know that it was expected to assume”
an obligation to accord a right of access to the courts, yet in international law it was held to be bound by such a right.
In Tyrer v. the United Kingdom in 1978, the Court majority declared that the European convention is a living instrument, which must be interpreted in the light of present-day conditions. That encapsulates the broader tension in the role of the convention and its interpretive organs. In “Civil Liberties and Human Rights in England and Wales”, Professor Feldman—the most distinguished adviser to the Joint Committee on Human Rights—notes that
“other states acquire an interest in the way in which a state is treating people within its jurisdiction. That interest can be pursued not only through international diplomacy but also through international law.”
That presents a dilemma for Dicey’s view of the British constitution, and we do ourselves small justice if we do not consider those tensions. The reason the Government are both divided and on the back foot over the so-called human rights issue is that they are caught: a judgment can be made through law—through legal instruments—but it can be confounded because we breach not the headline articles but an expansive Court that leads us into territory that was unconsidered and unrealised by the originating Labour Government.
Simon Hughes (North Southwark and Bermondsey) (LD): Does the hon. Gentleman agree that the courts always do that in relation to domestic legislation? Over the years, they have often interpreted legislation to give rights beyond those the Government might have wanted or even envisaged. When we ratified and incorporated the convention in domestic law, that was no different from when we did so in relation to other measures.
Mr. Shepherd: Of course it was, because under domestic law, and before the embracement of the European convention on human rights, there was only one judge as to who and what the law should be. Judges interpreting the law in an individual case could be set right by Parliament. The Human Rights Act refers to a key document to which I give great grace—the right of the Law Lords to make a judgment of incompatibility. That is the trick by which the measure tries to reconcile the new process with the doctrine of the supremacy of Parliament. At the time, the then Lord Chancellor and the then Home Secretary—now the Leader of the House—made much of that provision. That is the answer to the hon. Gentleman’s question.
Like the Minister, I was setting out a parallel history, because I believe that the measure sets up a profound tension between our constitutional arrangements and those of international law. The Court in Strasbourg takes on a whole raft of international human rights
instruments and by so doing imports them directly into British law. That moves across a terrific field, so my criticism, and my anxiety, is that, just like that extraordinarily well-regarded Cabinet all those years ago, I fear that the headline rights—those we struggled for and acquired in this country—suddenly have an interpretation far beyond anything I can comprehend. The Labour Cabinet was confident that we would never appear before the European Court of Human Rights.
My final observation is that respect for our liberties and our freedoms is important to our democracy. It has been a long march and, in an extraordinary way, as we reached democracy by the middle of the last century, the power of the Executive in the House of Commons was the dominant force. That power is not always sensitive to what a 17th-century gentleman would have regarded as liberty. As we look through Locke and the interpretations of the philosophies of the time, we find that there was always a reserve: if a Government stepped beyond their purpose—the protection of liberty—there were other means to achieve it. Governments feared the mob. That was one of the outside interjections, but so, too, was reasoned public opinion. We have moved on from the divine right of kings, although sometimes listening to Government Front Benchers one would think they were acting with divine certitude. However, as we see them crumble, we know that all things come to an end.
The Human Rights Act has been a Trojan horse in one sense, because the declaration of incompatibility has halted the Government in some of their wilder extravagances, as they encroach on our time-honoured sense of what are appropriate civil liberties, which has been carefully crafted over the centuries. I tell the Minister, as I tell the Lord Chancellor, or the Secretary of State for Constitutional Affairs, or whatever diminution he finds appropriate, that the measure has always lacked common consent. That constitutional change was never referred to the British people; it was shouted out, “This is the way we must go.” A long time ago, people—people such as me in all humility—who were anxious about Plato’s “Republic” knew that they did not want a class of people beyond my reach to determine how they should live. I do not want Plato’s guardians to govern me and I suspect that that is deep in the psyche of the British people. Judges are for the administration of justice under the authority of Parliament, not of international instruments that can undermine the very political processes that enable the parties to allocate their arguments about what is to be done to improve the condition, freedoms and liberties of the people.
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