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One might expect the Government to have seen the folly of their ways in this crucial area of rights—heaven knows, they have been reminded to do so often enough by noble Lords throughout this House—and to have taken steps to enshrine these great common law protections in legal form.
But not a bit of it. If we turn to paragraph 3.31, this is what we learn:
“Additional protections in relation to liberty of the person or fair trials may not be necessary as the belief in their fundamental nature is already so deeply entrenched, culturally and politically, and there is no fundamental threat to them”.
I stop in the middle of the quotation simply to ask: can we really believe that? The Government then go on to say:
- “At this stage, the Government does not propose the inclusion of the principle of habeas corpus or a right to trial by jury in any new Bill of Rights and Responsibilities, but it remains open to all arguments for and against as part of an informed public debate”.
Of the paragraphs I have read, I find that quite the most astonishing in the whole document; because nothing is more important to the rule of law and democracy in our society than these common law rights, which have been so severely undermined during the past 12 years.
The Green Paper is entitled Rights and Responsibilities. In a legal sense, of course, as your Lordships well know, these two are inextricably linked: a right generates an obligation to respect it; equally, an obligation not to do something to someone else gives someone else an implied right. But the Government may well be trying to define responsibilities in some other way; if they are, from my cursory reading, I am not clear what it is. If they are trying to redefine responsibilities in some way outside their strictly legal meaning, then I have reached the preliminary conclusion that they have failed.
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The main reason they have failed is because they have concentrated on the responsibilities of the state and local authorities. The executive summary at the beginning of the document states:
“Now is the time to discuss whether a Bill of Rights and Responsibilities should bring together those rights which have developed in parallel with the European Convention, but are not incorporated into it. A new Bill of Rights and Responsibilities could present the opportunity to bring together in one place a range of welfare and other entitlements currently scattered across the UK’s legal and political landscape”.
But what about creating a society with room for individuals to exercise responsibility? What about the role of the family, where the fundamental values of life are imbibed, or at least ought to be? Indeed, one looks in vain in this document, at least in the short time I have had to study it, for any mention of the family as being the most important institution of all for establishing a responsible society.
4.48 pm
Lord Thomas of Gresford: My Lords, just as I thought the Government of Mr John Major would be remembered primarily for their cones hotline, so I thought that the only positive memory one would have of the Government who have been ruling this country over the past 12 years was devolution and the Human Rights Act, both the legacy of the late and much lamented John Smith. This Green Paper, in the very short time that I have had to look at it, is exactly about resiling from the Human Rights Act. For example, Article 2 on the right to life and Article 3 on the prohibition against torture are both absolute rights in the European convention. In relation to the prohibition against torture, we still have not had the inquiry that we have been seeking over the past few months about what has gone on in the torture of Guantanamo Bay detainees.
Are these absolute rights to be undermined by making them contingent on responsibilities? That seems to be the thrust of the document. Paragraph 2.25 says:
“It is fundamental to human rights theory that human rights cannot be claimed or exercised by individuals without regard to the rights of others, and that most human rights (with exceptions like freedom from torture and slavery) are inherently subject to balance and qualification”.
“It would be possible in a future Bill of Rights and Responsibilities to highlight the importance of factors such as an applicant’s own behaviour and the importance of public safety and security”.
So when the Government talk about rights and responsibilities, they are really saying that those responsibilities, in the sense of an applicant’s own behaviour, should be taken into account when he is seeking to exercise the rights we currently enjoy in the European convention.
The noble Lord, Lord Kingsland, has referred to the familiar territory—old ground—about criminal justice. Again, there is an attack upon the right to trial by jury and an attempt to make it seem fusty and out of date by referring to its,
in 1215, as opposed to the fact that every day and in every major Crown Court in this country, jury trials, which have the confidence of the public, are being carried out. Here again we have this Government’s persistent, recurring theme of attacks on trial by jury.
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The noble Lord, Lord Kingsland, also referred to habeas corpus. It is said to be “seldom used”. I drafted a habeas corpus writ about four weeks ago which fortunately did not have to be used. It is a fundamental freedom which we have enjoyed in this country for centuries. The Government say:
“At this stage, the Government does not propose the inclusion of the principle of habeas corpus or a right to trial by jury in any new Bill of Rights and Responsibilities, but it remains open to all arguments for and against as part of an informed public debate”.
We see, therefore, the return of the authoritarian attempt of this Government to cut down our traditional freedoms.
As I have very little time, I move on to welfare rights. One would have thought that if the European convention rights were to be expanded, something would be said about economic, social and cultural rights, which should be guaranteed. Paragraph 3.53, however, states:
“In drawing up a Bill of Rights and Responsibilities, the Government would not seek to create new and individually enforceable legal rights in addition to the array of legal protections already available”,
in the field of welfare. Do not expect, therefore, this to be a charter for economic, social and cultural welfare rights.
One would have hoped that by now the Government would have considered incorporating the United Nations Convention on the Rights of the Child into English law instead of constantly saying it is an unincorporated convention which does not have any force. But they say:
“Any Bill of Rights and Responsibilities should allow for recognition that responsibility for many aspects of child wellbeing is devolved and the different ways in which outcomes are achieved for children across the UK”.
There is nothing about incorporating the convention into English law. As to how it is to be enforced, paragraph 4.25 states:
“The Government does not consider that a generally applicable model of directly legally enforceable rights or responsibilities would be the most appropriate for a future Bill of Rights and Responsibilities”.
In other words, you could not take a government department to court for a breach of a British convention on rights and responsibilities that is now being put forward as a pale reflection of the existing rights and responsibilities of the European Convention on Human Rights which British lawyers drew up to emphasise in a war-torn Europe that human rights apply to human beings. That is the important message that we should take away. This is just a muddle; it is an attempt to palliate the Daily Mail while trying to keep on board those of us who have a fundamental belief in the future and the continuation of human rights in this country.
4.55 pm
Lord Bach: My Lords, I owe an apology to the two noble Lords on the Front Benches for not having arranged for them to have copies of the Green Paper beforehand. I apologise for their not having had longer to consider it. However, when they have had chance to do so a little more closely, their attitude, which they put over with the eloquence that I would expect from both of them, may change and they may regret some of the expressions that they used at first glance at the document. They have got it absolutely wrong.
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The noble Lord, Lord Kingsland, who is normally so fair, says that, by starting a debate on this subject, the Government are somehow showing weakness and not making up their mind. That is rather an unfair criticism. Let us just imagine the scene if I had come here this afternoon and said, “Well, we’re going to introduce a new bill of rights and responsibilities. Here’s what it’s going to say. We’re going to get it through Parliament before the next general election”. The noble Lord would have quite rightly castigated me and the Government harshly for doing something such as that without due consultation, without finding out what people thought, without a draft Bill and without deciding what should and should not be in it. I think that we have been rather unfairly treated this afternoon. This is a Green Paper to start a debate—as it clearly has done—on the merits or otherwise of having a bill of rights and responsibilities in this country. It is a perfectly serious issue that needs serious attention, which I am sure it will be given in due course.
The attack on the Government for restricting freedom again seems a little rich, bearing in mind that this is the Government who passed large amounts of equality legislation, devolution legislation, the Freedom of Information Act, the Data Protection Act, the Civil Partnerships Act, the Gender Recognition Act, the Human Rights Act, new proposals for a further equality Bill, a Bill on welfare reform and the NHS Constitution for England. I do not recall any of those measures being put forward by the party that now suggests that it is on the side of freedom and liberty. This legislation has made millions of our citizens free in a way in which they were not previously, which should be recognised.
Trial by jury and the right to a fair trial were lauded by the noble Lord, Lord Kingsland. I remind him that trial by jury is of course deep set in the British way of life, but his party restricted it for a number of offences when it was in power, as have all Governments. No party has for a very long time suggested that trial by jury should be the remedy for every criminal wrong. It should be available for those charged by the state with serious criminal offences. We stand by that, as I know does the noble Lord.
The noble Lord, Lord Thomas of Gresford, really could not be more wrong when he claimed that the Green Paper is the death of the Human Rights Act because we are going to make those rights contingent on responsibilities. I know that he has not had long to look at the document, but I refer him to the first page of the executive summary, which states:
“The Government is clear that the rights in the European Convention cannot be legally contingent on the exercise of responsibilities. However, it may be that responsibilities can be given greater resonance in a way which does not necessarily link them to the adjudication of particular rights”.
There is no question of fundamental human rights being diluted or made conditional on fulfilling responsibilities. A criminal may lose his or her right to liberty by going to prison, but nothing could lawfully detract from his or her right to a fair trial or to be free from ill treatment by the authorities. A bill of rights and responsibilities provides an opportunity to set out the relationship between rights and responsibilities
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5.01 pm
Lord Pannick: My Lords, I welcome the Government’s intention to promote discussion and debate on human rights. While paying tribute to the achievement of this Government in securing the enactment of the Human Rights Act, I ask the Minister whether he agrees that it is difficult to promote public enthusiasm and indeed understanding of the Human Rights Act, a measure that simply implements an international convention and does not attempt, as a fundamental constitutional document should, to express its contents in terms specific to the history, the values and the needs of this country. Does he agree that that is the potential that a British bill of rights and responsibilities offers? Does he agree that only such a document can perform the educative function that a constitutional document should perform? Finally, does he agree that, if we are to move to a British bill of rights and responsibilities which is a fundamental constitutional document, which is principled, which commands public support and which speaks to the ages, it is vital for the discussion and the debate to try, so far as is possible, to avoid party-political considerations?
Lord Bach: My Lords, I certainly agree with the noble Lord on that last point—we shall look for consensus. I thank him for his general support for the Green Paper and the ideas behind it. I think that he has a point as far as the introduction of the Human Rights Act is concerned. He wrote an important article in the Times newspaper some months ago in which he made the same point, among others, arguing that the Government may have missed a trick when it introduced that Act in not setting out more clearly and in more detail the values and history behind its principles. I take the point and I hope that, if we got it wrong, we will learn from that experience if there is to be a bill of rights and responsibilities in the future. Of course, one of the values of such a bill would be its educative effect and the way in which it would point out the history and tradition and bring up to date the rights and responsibilities that are crucial to the United Kingdom. There is nothing in what he had to say that I can disagree with and I look forward to his contribution to the debate.
Lord Waddington: My Lords, is it not important that the public should be aware of something fundamental said by the Minister, Mr Wills, and in the Statement—namely, that the Government have not even made up their mind whether the new rights specified in the Statement should be enforceable in the courts? Does not that really expose an enormously difficult problem? If the Government determine that the new rights
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Lord Bach: My Lords, my right honourable friend Mr Wills was quite right. One issue for debate is that, if there is a bill of rights and responsibilities, what should be the consequence of breaching those requirements of an Act of Parliament? A bill could take a variety of approaches across a spectrum of legal effect. Even if it had a merely declaratory effect, as some bills and Acts around the world do, such an instrument could still have considerable political and symbolic value. The bill of rights and responsibilities could also provide for different legal effect in relation to different rights. Of course, they would have to be set out clearly; some could be enforceable through the courts, whereas others could be expressed as principles that Parliament has passed and that courts could take into account when trying cases. Principles could be intended either to have symbolic resonance or to act as guidance for politicians making the law, administrators applying the law and courts adjudicating the law. There is no need for every single right and responsibility as legislated for in such a bill to be justiciable. It is not necessarily the case. This is one matter that is crucial to the debate, which is really in two parts: should we have such a bill and, if so, what should be in it?
Lord Lester of Herne Hill: My Lords, the Minister will be aware that I am in the strange position of having spent 15 months as the unpaid independent adviser on these questions. I eventually resigned in November because I became convinced that the Government would not propose anything that I thought was sensible in terms of constitutional reform. He will be aware that I saw no reason to have two documents, one called the Human Rights Act and another called a bill of rights and responsibilities, the latter not proposing any new enforceable rights or even adding new responsibilities. Today, we have heard the Minister seeking to justify what is now in this document. I must disappoint him by saying that nothing that I have seen and heard about it makes me think that I was wrong to leave my post.
I have a couple of questions. I shall certainly not detain the House with a further explanation of why I think that the poet Horace might have said something about the mountains labouring and producing something not very satisfactory. First, why does not the Green Paper deal with the real, practical problem created by the YL decision, which means that private bodies exercising public functions are outside the scope of the Human Rights Act? Why does not the Green Paper or any other measure propose to fill that gaping hole in the Human Rights Act as it stands? Secondly, building on a question asked by the noble Lord, Lord Pannick, I wonder why the Green Paper does not address the question of the language in which the
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Lord Bach: My Lords, I pay tribute to the noble Lord, Lord Lester, and thank him for the help that he gave when he was advising the Government. I put on the record the fact that we regret that he felt the need to resign when he did. However, I am disappointed that he is not in some ways enthusiastic about this Green Paper emerging to start a national debate on moving the whole human rights debate forward. I would have thought that he, of all people, would in many ways like to see the possible addition of other rights related to the social and economic changes that have taken place since the post-war convention was negotiated and signed. The Green Paper does not deal with all the issues that he raises because, frankly, it tries to look forward and ask whether it is in this nation’s interests to have a bill of rights and responsibilities. It poses some of the issues that need to be considered if such a course is taken.
The Lord Bishop of Chester: My Lords, without wishing in any way to resile from the Human Rights Act and the discussion so far, may I ask the Minister whether he agrees that there is a danger of the discussion being set up in terms of the power of the state and the rights of the individual in a way that is too exclusive of all the other institutions of society that, it seems to me, embody our values? The noble Lord mentioned the family; it is, in fact, mentioned in paragraph 2.33, but very briefly. In our society, beyond the family or other groups, we now have whole communities with particular ethnic traditions and backgrounds. How we allow them an opportunity to flourish and to continue their traditions within the framework of British values is, it seems to me, part of the key discussion that needs to take place. Let me choose the issue of education as an example. A constant sniping at faith-based education tends to occur in our society. There must be a way of enshrining a right to education, coloured by the traditions of particular communities, which nevertheless respects the fundamental values of our society. In the consultation that is about to take place, may I urge that a particular effort is made to consult the new communities and ethnic traditions that are part of our society? The success of this operation will largely depend not on a binary dynamic of the state and the individual but on that whole area of society in between, which Governments cannot control and which transcends individuals.
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Lord Bach: My Lords, I am grateful to the right reverend Prelate for his remarks. We of course want this discussion and debate to go much wider than the political classes. We want it to involve all of society. One difficulty is in getting people interested in a debate such as this, which is why I hope that there will be a programme later this year to take these ideas out into communities. That will of course include ethnic minority communities and have an emphasis on families. One argument for the proposed bill is that it may be desirable to have in one place, although they may not necessarily be suitable as legally enforceable duties, the key responsibilities that we all owe as members of society, one of which might be safeguarding and promoting the well-being of children in our care. That issue really affects everyone, as the right reverend Prelate was saying. Therefore, his comments will be taken very much on board.
Lord Soley: My Lords, I share my noble friend’s surprise about the puzzling situation of the two opposition parties confessing that they had not read the paper but then going on to say that it is muddled. It reminds me of the student who knew he was going to have trouble doing his homework so he got his strike in first. Both these parties have—if I may use an inelegant legal term—form. Both the Conservatives and the Liberal Democrats supported the Prevention of Terrorism Act with its internal exile, and the Conservatives supported a ban on Gerry Adams being broadcast on the BBC. They also supported certain aspects of locking people up without trial in Northern Ireland, as indeed did my own party at times. It shows the delicacy of the relationship between society and government.
I have two brief points for the Minister. First, I very much welcome the rights and responsibilities argument. However, does he not accept that the responsibility bit has to be at least in part about education, because it is difficult to legislate for that? The other point we need to remember in this debate is that technological change has a dramatic effect on society. The data collection methods available to us now are a very important part not only of the protection of society but of the need to enhance the rights of individuals. Perhaps we have not given enough attention to the principles underlying the complexity of data and the scientific methods of collecting them as we should have done. As a result of this change, society is fundamentally different from what it was even 50 years ago, never mind 100 years ago.
Lord Bach: My Lords, I am grateful to my noble friend, and I take his last point. One of the reasons we have raised the issue now is that British society has changed so hugely over recent years, not least in the field of technology. As for responsibilities, education of course plays a crucial and vital part in those. We hope that regardless of what view is ultimately taken on whether or not to have a Bill, the effect of the debate will be to bring out more into the public domain the issue of the responsibility that we all owe each other and the responsibility that the state owes the citizen.
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