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Bill of Rights (UK)

Volume 494: debated on Thursday 25 June 2009

[Relevant Documents: A Bill of Rights for the UK: Twenty-ninth Report from the Joint Committee on Human Rights, Session 2007-08, HC 150-I, and the Government response, HC145, Session 2008-09.]

Motion made, and Question proposed, That the sitting be now adjourned.—(Helen Jones.)

It is perhaps surprising that this is the first opportunity that the House has had to debate the question of a Bill of Rights, bearing in mind that it has been under consideration for the best part of two and a half years.

There is no doubt that constitutional renewal is back on the political agenda. In his recent statement to the House on democratic reform, the Prime Minister said that

“setting out the rights that people can expect as a British citizen, but also the responsibilities that come with those rights, is a fundamental step in balancing power between Government, Parliament and the people.”—[Official Report, 10 June 2009; Vol. 493, c. 798.]

It is one of the five major issues on which the Prime Minister said the Government will set out proposals for debate and reform over the coming weeks. The question whether there should be a Bill of Rights for the UK, which many thought had been quietly forgotten, could therefore become important in the run-up to the election.

The debate should not be dominated by dusty old experts on the constitution or policy wonks fresh from think-tanks. The issue is central to many of the most important challenges of our time: how to protect people against the insecurity caused by the worst global recession since the 1930s; how to restore the public’s confidence in democratic politics; and how to make public services more responsive to the people that they serve.

The Joint Committee on Human Rights began our inquiry into the question of a Bill of Rights in May 2007, against the background of an unprecedented consensus among the major political parties about the need for a British Bill of Rights. That consensus reflected a wider view among the public, which was revealed consistently in opinion polls such as the Rowntree “State of the Nation” poll, which showed a strong majority in favour.

There is much less consensus on why a new Bill of Rights is needed, and no consensus at all on what rights should be included, or on how it should affect the existing balance of power between Government, the courts, Parliament and the people. Under my chairmanship, the JCHR has sought to build a greater understanding about human rights, both in the House and more importantly, among the wider public, drawing on the potential of discourse to transcend party political dividing lines. One of the purposes of our inquiry was to ascertain the extent of agreement on the really big issues in the Bill of Rights debate.

Two years after the start of our inquiry, I believe that there is now a greater understanding of those issues, and sufficient consensus at least about the most important questions to move on to the crucial next stage of a focused public consultation conducted by an independent committee with a view to making recommendations to the Government. I hope that will happen early in 2010.

I shall focus on some of the key themes of our report, including what sort of Bill of Rights the UK needs; whether social and economic rights should be included; how a Bill of Rights complements, and is essential to, democratic renewal and public service reform; and whether there is any place for responsibilities or duties. I shall also explain why it is important that the debate proceeds from the premise that any new Bill of Rights must supplement, and not take away from, the protection already afforded to human rights by the Human Rights Act 1998.

The purpose of Bills of Rights in history, such as Magna Carta in 1215, France’s Declaration of the Rights of Man in 1789, and the American Bill of Rights of 1791, was to protect the individual’s liberty against the intrusive power of the overbearing state. Liberty was conceived only in the negative: an absence of restraint. In the middle of the 20th century, however, conceptions of liberty and human rights began to change. President Roosevelt, whose interventionist new deal rescued the US from the great depression, redefined those concepts with his “four freedoms”, to include not merely the absence of restraint, and freedom of speech and religion, but an absence of want and fear. Liberty in that conception included the right to economic security, which was reflected in the preamble to the universal declaration of human rights.

Debates about Bills of Rights have too often been hobbled by the assumption that there is an irreconcilable conflict between those two human rights traditions. In our report, however, we recommend that in our modern parliamentary democracy, a Bill of Rights should seek to combine them. The Bill needs to reflect the values that are so much part of our national identity: the rule of law, with power exercised lawfully, with the oversight of an independent judiciary; liberty, meaning freedom from restrictions; democracy, which gives people control over the decisions that affect our lives; fairness, meaning that equal rights are to be treated with dignity and respect; and civic duty, to reflect our broader responsibilities to each other and our communities.

Of course, any modern Bill of Rights must also include those long-standing rights that we in the UK regard as our birthright: the right not to have our homes entered or be subjected to intrusive surveillance without proper justification and effective safeguards against intrusion into our privacy; the right to peaceful protest and to freedom of expression; and the right to jury trial for those accused of serious crimes, although that is not a tradition in Scotland.

Other UK rights have emerged more recently. They include administrative justice, which ensures that decisions taken by those in authority are fair and impartial. If necessary, that can be backed by the right to review by the courts. Data protection, freedom of information and equality rights have also emerged. The Equality Bill strengthens that last right, but it does not include an overarching constitutional guarantee of equality. I expect that we will have more to say on that during our scrutiny of the Bill.

The JCHR has been second to none in defending both traditional, ancient rights and newer modern liberties against unjustifiable interferences. It almost goes without saying that any UK Bill of Rights should include them in its catalogue of fundamental rights.

However, a modern Bill of Rights should also include protection for those rights that our society regards as equally important, such as rights to health, housing, education and an adequate standard of living. Civil and political rights are obviously fundamental, but they are pretty meaningless to those facing destitution, homelessness, chronic ill health or a lack of education. When my constituents complain to me in my advice surgery about their human rights being infringed and thump the table, it is usually about their health care, housing, education or benefits, all of which are not currently recognised in our law as relevant human rights at all, but which people think are so recognised. An Englishman’s home may be his castle, but that cannot be so for those with no home or no secure home in the first place. Education underpins freedom of expression, but the right to vote is not uppermost in the mind of the destitute person who sleeps in an office block doorway, who might be subject to police harassment.

Such rights are expected by the population, too. The Joseph Rowntree 2006 “State of the Nation” report said that 88 per cent. thought the right to NHS hospital treatment within a reasonable time should be included in a Bill of Rights. On a par with that, 89 per cent. thought that the right to trial by jury should be included and 65 per cent. thought that the right of the homeless to be housed should also be included.

The Convention on Modern Liberty, to which I was pleased to speak in February this year, has done an excellent job in raising public awareness of the need to protect the vital traditional liberties that I have described and the others set out in our report, but that is only half the story. A modern Bill of Rights must provide such protection but, equally, it cannot confine itself to purely libertarian concerns if it is to be relevant to our 21st-century society and all our citizens, from the Duke and his heirs with the landed estate and stately home to the desperate lone parent in her housing estate flat.

The human rights obligations of today require the state to take action to protect human rights, whether that means providing public services such as health and education, protecting against the insecurity of destitution by providing welfare benefits, or protecting the vulnerable against the powerful, including those with private power. The Prime Minister went a long way towards accepting that in principle when he acknowledged the indivisibility of civil and political rights and social and economic rights in his speech to the Equality and Human Rights Commission on the occasion of the 60th anniversary of the universal declaration on human rights. We therefore set out in our report an outline illustrative draft that contains both civil and political rights, and social and economic rights, which are two sides of the same coin.

I welcome the Government’s constructive engagement with the issue of whether and how a UK Bill of Rights should include social and economic rights. The Government have shown that they have a very open mind on that. They have moved considerably from their initial position of scepticism in the 2007 “Governance of Britain” Green Paper. They showed a distinct lack of imagination in the paper, dismissing the inclusion of social and economic rights out of hand, on the ground that it

“would involve a significant shift from Parliament to the judiciary in making decisions about public spending and, at least implicitly, levels of taxation”.

The Prime Minister himself helpfully intervened in the debate. He acknowledged the modern reality that rights such as the right to health are now considered to be fundamental by the public and that they are regarded as one of the defining features of the country. He said that the real question was not whether they are properly to be regarded as fundamental rights, but rather whether, or to what extent, they should be legally enforceable.

Since that time, the Government’s position has continued to evolve. In evidence to our inquiry, the Government accepted that a range of options could be pursued, from fully justiciable and legally enforceable social and economic rights at the one extreme, to purely declaratory principles, of purely symbolic rather than legal effect, at the other. In our report, we freely acknowledge the difficulties of including rights such as health and education in a UK Bill of Rights and reflect especially on the extent to which the courts could and should make decisions about issues normally determined by politicians. We therefore developed and now advocate an approach that we believe counters those problems.

We propose placing a duty on Government to make progress towards realising rights to education, health, housing and an adequate standard of living, and to report that progress to Parliament. Although we recommend that individuals should not be able to enforce those rights directly through the courts, we believe that the courts should have a limited role in reviewing the reasonableness of the measures taken by Government, a role closely circumscribed by the express spelling out of the considerations to be taken into account when assessing the reasonableness of the measures taken. We suggest a series of such conditions in the report.

Courts should also be able to take social and economic rights into account when relevant to the interpretation of other legislation or common law. Of course, if interpretation clearly points one way, those rights would not be relevant, but if an argument were evenly or closely balanced, giving effect to the Bill of Rights could be seen as a tie breaker. Parenthetically, I should say that, generally—not just in the context of social and economic rights but for all the other civil and political rights too—we believe that the Bill should have a strong interpretive clause requiring any body interpreting it to strive to achieve its purpose and give practical effect to the fundamental values underpinning it.

We have been encouraged by both the Government’s response to that section of our report and the prominence of social and economic rights in the Government’s “Rights and Responsibilities” Green Paper. The Government now appear to recognise the force of the case for developing domestic formulations of economic and social rights and to accept that there might be ways of recognising rights, including social and economic rights, that already exist but are not currently enunciated as rights in UK law.

In the non-justiciable NHS constitution and the recently published Child Poverty Bill, the Government have gone further and provided a fascinating test case of how to provide a legally binding framework for the progressive realisation of social and economic rights in the campaign against child poverty. As South African Justice Albie Sachs, that world-renowned defender of democracy, freedom and equality told us during our inquiry, a country that does not include social and economic rights in some form in its Bill of Rights is a country that has given up on aspiration.

As an illustration, the Child Poverty Bill concerns the progressive realisation of the child’s right to an adequate standard of living as enshrined in article 27 of the UN convention on the rights of the child and imposes an absolute duty on the Secretary of State to achieve certain targets by 2020. The duty is unqualified by reference to resources or budgetary considerations, nor is there any power in the Bill to amend the target. There is a separate duty to have a strategy to achieve those targets. Although that duty is qualified by the requirement that the Secretary of State must have regard to economic and fiscal circumstances, the duty to meet the targets themselves remains unqualified.

The Secretary of State for Work and Pensions made it clear on the Bill’s introduction, and the Financial Secretary to the Treasury, confirmed in evidence to the Select Committee on Work and Pensions on 17 June that a Government who failed to show they were taking steps to achieve the targets could be subject to judicial review. The only way for a future Government to avoid that consequence would be to repeal the Act. The Bill is a bold piece of legislation giving binding legal effect to an important social right, and it demonstrates how far the Government have come from their original opposition in principle to the inclusion of social and economic rights in a UK Bill of Rights. I note that some of the provisions in the Equality Bill relating to social and economic inequality can be taken into account when public bodies set their strategic plans. Again, those strategic plans could be subject to judicial review if it is demonstrated that the body in question should have taken social and economic inequalities into account but did not.

In our report, we argued that protecting social and economic rights would make a practical difference to the lives of ordinary people. The severe economic downturn since the publication of the Committee’s report provides additional examples of how. Home repossessions are one example. The number of home repossessions owing to default on mortgage repayments has increased dramatically in recent months. According to the Council of Mortgage Lenders, some 45,000 homes were expected to have been repossessed by the end of 2008, and the number of people in mortgage arrears rose to 168,000. Its current year estimate for repossessions is 65,000, even after a downward reassessment and including the measures taken by the Government to help home owners in this challenging economic climate.

The Financial Services Authority and CML report that more than 1 million households are likely to default on a mortgage payment over the next year. On 22 October 2008, the Prime Minister announced new guidance to county court judges to ensure that repossession is granted only as a matter of last resort. A new pre-action protocol on seeking possession based on mortgage arrears came into force on 19 November 2008. In the meantime, however, the High Court ruled in October 2008 in the case of Horsham Properties v. Clark that lenders are entitled to sell properties over the head of the home owner, without having to go to court, after a single default on a mortgage payment. After just one missed instalment, the new purchaser/owner of the property is entitled to a possession order against the borrower, who is now seen in law as a mere trespasser in the home that the law says they no longer own.

The pre-action protocol can therefore be circumvented far too easily by lenders invoking their power to sell the property without having to go to court. The FSA and CML have reported that UK sub-prime lenders have been taking an increasingly aggressive approach to repossessions and predict that the trend is likely only to increase in the light of economic conditions.

In our report, the Committee recommends that the right to housing is one social right that should be protected in any UK Bill of Rights. We suggested in our draft outline Bill of Rights the inclusion of a provision to the effect that

“No one may be evicted from their home without an order of a court.”

If the UK had a Bill of Rights that included such a provision, it would no longer be open to the courts to interpret the law so as to allow lenders to realise their security by selling people’s homes without first obtaining at least a court’s approval and convincing a judge that such a drastic step is proportionate in all the circumstances.

In the meantime, I have tabled a private Member’s Bill under the ten-minute rule designed to give borrowers at risk of repossession at least some basic protection from such sales by unscrupulous lenders by guaranteeing everyone’s human right not to be thrown out of their home without a court order. That would not mean that people who default could stay in their homes indefinitely, but it would mean at least some fairness and due process before a lender can literally take the roof from over people’s heads. The Bill is due for Second Reading tomorrow. Perhaps Front-Bench Members could indicate their support in principle for it and the vital protections that it would provide.

How does the hon. Gentleman envisage that the statement of the right to housing would be applied by the courts in a situation where a family was breaking up and the two partners were arguing who should have custody of the children and who therefore needed the house? Would they both have a right to housing such that a public authority would immediately have to provide them with another house?

I certainly would not go that far. We can take examples from what is happening in South Africa in cases involving the right to housing. It was found that if one wanted to jump the housing queue there, it simply would not work that way. South Africa has done a magnificent job—it has built some 3 million homes since the end of the apartheid era—but it still has a huge waiting list. It would not work in that context.

However, another housing case involved people who had been left destitute and were living in a field, having been thrown off their land. I cannot remember the exact name of the case—it begins with B—but it will probably come back to me later. In that case, the court said that the state was required to give those people, who were living in a field with no shelter at all, at least minimum basic protection against the weather. In that case, a sensible decision was taken by the South African courts to suggest that there should be a certain minimum level of protection against destitution.

That is an interesting example. It raises a question that I was going to raise later about social and economic rights. According to the human rights standards under which we operate, there is a right not to be left in destitution. Does the hon. Gentleman see things such as the right to housing as simply examples of that—an operationalisation of that right—or does he see them as going further than the right not to be left in destitution?

I am not entirely sure that we actually have a right not to be destitute, as far as human rights are concerned; it is a social and economic right. I suppose that we could draw those rights as principles from other parts of existing legislation: for example, one of the Local Government Acts deals particularly with the question of destitution. However, there is no overarching right. There is a duty on the local authority to ensure that people in the area are not destitute, but I do not think it has the mirror-image effect of giving the individual a right in that respect.

We recommend that a right not to be destitute be enshrined in the Bill of Rights. It could operate through the interpretation of social security law. If there is a strong interpretation clause in the Bill of Rights, social security bodies would have to make decisions in the context of that clause. I have given the housing example of people not being evicted without the order of a court. That could be called a procedural right, but I think that it is rather more than that.

In the circumstances that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) put to me, a court clearly would be involved in making the decisions. That is not to say that there is an absolute right to housing, but that one cannot be deprived of housing without a court decision. That is the point that I made in relation to repossession. I am not saying that if our proposal was accepted people’s houses could not be repossessed, but that they could not be repossessed without the consideration of a court. Because of the Horsham Properties case, all the machinery that is there to protect people can currently be circumvented.

I shall move on to the issue of responsibilities, which is another key battleground in the debate. Our report was strongly opposed to a Bill of Rights being called a Bill of rights and responsibilities. We did not see the purpose of articulating explicitly in a Bill of Rights responsibilities as general as the responsibility to obey the law. However, in the Green Paper, the Government continue to pursue the curious suggestion that various legal and moral duties, such as the duty to ensure that your child attends school, the duty to co-operate with the police and the duty to obey the law, may have a place in a Bill of Rights. The JCHR strongly disagrees with that approach. It comes across as bossy and authoritarian, and it is pretty meaningless. There would be no value added. Nevertheless, references to responsibilities in a Bill of Rights would be unobjectionable, to the extent that they acknowledge responsibilities that are implicit in human rights law and that the powerful—including private power—may have responsibilities not to interfere with the human rights of others.

We are currently conducting an inquiry into business and human rights. It is widely recognised that businesses, as powerful private entities with the ability to affect people’s human rights in many ways, have a responsibility to respect those rights. Indeed, that is recognised in the widely accepted international framework dealing with business and human rights. Although I do not want to pre-empt our report on human rights and business, the report we are considering deals with the Bill of Rights and private parties. That has become known as the question of horizontality in the Bill’s application. We agree that a Bill of Rights should not give free-standing causes of action to individuals against other private parties, for a breach of their fundamental rights. However, I would like to raise some key points.

First, the delivery of public services by private companies, either through privatisation or contracting out, has been thrown into confusion by the YL case in the House of Lords. I will not discuss the issues arising from that case at length because they are well rehearsed. When the Human Rights Act 1998 was passed, it was intended that privatised services would be covered. We have since seen sticking-plaster amendments to bring care homes within its protection, but its application to other services remains unclear. That has led to interminable correspondence on behalf of the Select Committee between me and Departments, and yet another of my private Member’s Bills, which is scheduled for Second Reading next week on 3 July and will try to clarify the position.

This issue must be resolved in a comprehensive way; not on a hit-and-miss, case-by-case basis. When the debate kicked off after the YL decision, I understand that the Government’s position was that it would be dealt with as part of the Bill of Rights debate. I now understand that it has been shelved and may be considered through a separate consultation. Will the Minister say exactly where we are with the YL issue? It is pressing because another case concerning privatised prison services, which I cannot go into, is due to be tried before the courts very soon. We recommend that the Bill of Rights should make it clear that when public services are delivered by a private body, that must be done in a non-discriminatory way.

Secondly, an aspect of growing importance is that the state may rightly be expected to provide protection for the rights of one private party against another. An example is the old and valued right I referred to earlier of security in the home against intrusion. Is it right that certain private internet operators can put on their websites detailed films and photos of our homes, back gardens and activities taken from space? We may well address that issue in detail in our forthcoming business and human rights report.

Thirdly, the right to a healthy and sustainable environment—a so-called third generation right—has developed into a right capable of legal expression. We recommend it as a candidate for inclusion in the Bill. That right could well demonstrate the need for similar, indirect mechanisms for the protection of individuals by the state against private polluters. Although we do not support a direct horizontal cause of action, we believe that indirect effect could be given through requiring interpretation by the courts of legislation or common law in a way that is compatible with the Bill of Rights. The courts should be included as one of the bodies under a duty to act in compatibility with it and should take active steps to promote and fulfil the freedoms in the Bill.

I shall briefly mention international human rights instruments. The Bill of Rights debate could look outwards more to the international agreements that we have signed and ratified, such as the conventions on children’s rights and, most recently, on disability rights. The Bill of Rights would be a useful and effective way of incorporating into the domestic agenda our general obligations to such vulnerable groups. We urge the Government to consult on whether there are rights under human rights treaties that are not yet included in domestic law, which it would be appropriate to include.

We must be mindful of devolution. I have already mentioned that Scotland is different from England and Wales in respect of jury trials. Northern Ireland has been through a lengthy process to produce a draft Bill of Rights for Northern Ireland. The report speaks of a Bill of Rights and Freedoms for the UK. The debate raises many questions about national identity and requires dialogue between central Government and the devolved Administrations. I was astounded to learn that ours was the first Westminster Committee ever to hold formal evidence sessions at the Scottish Parliament. Devolution does not preclude a UK document, but there must be provision for separate, added-on or subtracted rights as the devolution settlement may require. That can emerge only through effective dialogue with the devolved Administrations.

Finally, and perhaps paradoxically, I come to the title of the Bill of Rights.

The words of the Government response on the matter of devolution are characteristic of the Government’s relations with the devolved bodies that we described in the Justice Committee report on devolution. The Government response states:

“The Government is alert to the need to engage with the devolved administrations and the devolved legislatures.”

In other words, “We haven’t done it yet, but we might get around to it.”

I am grateful for the right hon. Gentleman’s intervention. When we went to Scotland it was clear that the first the devolved bodies had heard of the debate about the Bill of Rights was when we went to talk to them about it. There was a complete oversight on the part of the Government on the devolution dimension. The situation was different in Northern Ireland because the process had started and the Government were fully engaged through the Northern Ireland Office. A very interesting document was produced on that.

I am grateful to my hon. Friend for giving way. I realise that I will have a chance to say my piece, but on this issue my hon. Friend and the right hon. Member for Berwick-upon-Tweed are wrong. We have been engaged with the devolved Administrations for a considerable period. I am not sure why my hon. Friend got the impression he did, but it was a wrong impression. We are actively engaged and will continue to be so.

I was given that impression by the Scottish Government Minister we spoke to, who seemed to suggest that there had been no interchange with the UK Government on this issue. If the Government are engaged with the devolved Administration in Scotland, I am pleased to hear it and withdraw my criticism.

Was the Select Committee not too dismissive of the difficulties in dealing with devolution in relation to a new constitutional settlement? The recommendations said that the devolution settlement created certain difficulties. However, the Select Committee took evidence from Professor Robert Hazell about a similar issue that arose when the Canadian charter of rights and freedoms was introduced without Quebec’s consent. Quebec refused to accept the new constitution as a whole. Does that not show the dangers of going down this route with Scotland?

I certainly do not think that we are dismissive of the problems. We are saying that we need dialogue to resolve the issues, and that dialogue was perhaps missing in the case to which the hon. Gentleman referred in Canada. There is certainly a willingness to engage in Northern Ireland. The main worry there is that the implementation of the Northern Ireland Bill of Rights will be delayed because of the wider debate in the UK. One of the issues that we have to address in that wider context is how the Northern Ireland Bill of Rights, which is a very advanced document, can be married up with a wider UK Bill of Rights. For example, there are certain rights, including cultural rights, in Northern Ireland as a result of the particular circumstances there, but they are perhaps less important elsewhere. There are also issues relating to the religious tensions of the past. In Scotland, there are different issues because of the different legal system. We have to see how we can make those fit together.

Can we have an overarching Bill of Rights for every eventuality? I do not think that we can. We may have to have separate documents, which supplement a UK Bill of Rights, or we may have to have different caveats to it. That can be achieved, and there is a general willingness in the devolved Administrations to work towards that, as long as their specific circumstances are recognised. When I came back from Scotland, one of my main concerns was that that did not seem to have been the case so far. However, the Minister tells me that we are now well engaged, and I hope that the issue will be overcome, if it was an issue in the first place—we thought that it was, but he says that it is not.

To return to my previous point, the Committee believes that the Bill should be called a UK Bill of rights and freedoms. In the end, we regard the Government’s preferred title, which includes the word “responsibilities”, as somewhat inchoate and a distraction. It is probably intended for political reasons, rather than to have any meaningful effect. Our proposed title reflects the marriage of old and new—our traditional freedoms and liberties, the new rights emanating from the Human Rights Act, social and economic rights and all the other ideas that I have covered.

As I said at the beginning, this is the first chance that the House has had to debate a Bill of Rights, which is so important for our society in the 21st century. I hope that it will not be our last chance to debate the issue and that the idea will catch the public’s imagination and find engagement. The old Bill of Rights has lasted for more than 300 years, and I hope that the modern Bill of Rights will, in the same way, be a vital part of our constitution for centuries to come.

I warmly welcome the report for its excellent handling of where we have got to on human rights and for clearly setting out so many of the issues. I do not agree with all its conclusions, but I welcome its general emphasis and many of its specific conclusions. It is an extremely useful piece of work, from which hon. Members on both sides of the House can benefit.

Let me start by referring to two approaches to the Bill of Rights that worry me profoundly. One has generally come from members of the Conservative party and particularly from Eurosceptics in it, who cannot quite get their heads around the fact that the European convention on human rights is not a product of the European Union, but a much earlier product of the Council of Europe, which was signed by a Conservative Minister many years ago. That line of argument suggests that if we had a UK Bill of Rights or a British Bill of Rights—a lot lies between those two phrases—we could somehow diminish the impact of the European convention on human rights. The Committee’s report makes it absolutely clear that that is not the case, and nor is it the Government’s position that that should happen. I am surprised that I still hear that argument from some on the Conservative Benches.

I am sorry to intervene so early on my right hon. Friend, but I want to support what he says. The Conservatives are entirely inconsistent if they say or imply that that is their view, because they are among the first to ask for the rights of British citizens to be upheld in other countries, including on our continent. The best way of absolutely guaranteeing that those rights were upheld over the past 50 years has been the European convention, which has applied across almost all countries in almost all its clauses.

I am grateful to my hon. Friend. I should say that I do not attribute that view to the hon. Member for Enfield, Southgate (Mr. Burrowes), who is the Conservative spokesman. Indeed, I look forward to hearing from him later, when I rather believe that he will set out a much clearer, more coherent and more acceptable position.

The other position that I want to address comes from Ministers and is a rather new Labour position. Again, it is one that the Committee dispenses with almost, although not quite, entirely. It links rights and responsibilities and introduces the concept that we could have a Bill of rights and responsibilities. The Committee comes down firmly against the idea of calling the Bill a Bill of rights and duties or a Bill of rights and responsibilities. In the report, however, the Justice Secretary is quoted as having set out two purposes for a new Bill of Rights. One is to put rights in the context of responsibilities—that is a primary purpose of the Bill. The second is to add economic and social rights, and I will come to that in a moment. First, however, I want to concentrate on the business of putting rights in the context of responsibilities.

We have the right Minister with us today, because he has been very clear in his statements on this subject, as he is on many subjects. He has made it clear that rights

“cannot be made contingent on the prior fulfilment of responsibilities”,

and that phrase is in the report. The Government response says:

“This is indeed the Government’s view.”

However, it goes on to say:

“The fact that we all have rights is no reason for people not to exercise them responsibly or for the Government not to encourage responsible behaviour so that the rights of all can be respected. ”

Fine. We all agree with that. I have spent quite a lot of my life trying to persuade people to behave responsibly in various ways, including politically. In that respect, I have encouraged people to carry out their political duties by voting and taking an interest in politics. I have also been delighted to support the numerous bodies and people in my constituency who do so many marvellous things to contribute to civil society and to the welfare of others. It is quite right that the Government should encourage responsible behaviour at the minimal level of not interfering with the rights of others and at the much higher level of actively contributing to society. However, that is not the same as putting rights in the context of responsibilities, which is a wolf in sheep’s clothing.

Of course it is desirable that people should behave responsibly. If people break the law, they are liable on conviction to lose part of their freedom, whether through a prison sentence, a community punishment or a fine. However, should rights be dependent more generally on responsible behaviour? Clearly, if everyone behaved responsibly and considerately, it would be much easier to maintain a free, harmonious and comfortable society. It is highly desirable that people should behave in that way. However, there is no way in which we can calibrate what rights individuals should have according to how responsibly they live, except by the due process of law.

Where the law can reasonably be applied to control behaviour that is a threat to the freedom of others, as in the case even of driving without due care and attention, there can be a defined range of penalties, including loss of the right to drive a car. However, no one seriously suggests that a persistent failure to check on the health and welfare of neighbours, a refusal to contribute to the social life of the community or an unwillingness to engage in voluntary activity can be dealt with through some corresponding diminution in the right of free speech, the right of free assembly or the right to a fair trial. Indeed, that conjures up the idea of a people’s court or village soviet, which can decide that some of the residents are not fulfilling their social responsibilities enough to deserve certain of the rights that the rest of us have hitherto taken for granted.

If the Government’s proposal is more than mere rhetoric, it may be a misleading and potentially dangerous attempt to diminish freedom. Those who toy with the concept should explain how they believe that taking on responsibility can become a condition for the enjoyment of rights. Someone can be a bad-tempered recluse if they want to be. Society would benefit if they took a different approach to life and helped to run the scout troop, but doing so cannot be a condition for the possession of rights or the exercise of freedom.

The Committee is pretty firm in its attitude to that, except that it gives a little ground in the end by suggesting that it might be beneficial to include civic duties in the preamble. If that is no more than mere rhetoric, I wonder whether it is justified. If it creates any sense that rights can be made conditional on kinds of behaviour that are not regulated by law, it could be pernicious and dangerous. That is a most fundamental issue, on which I want to be even clearer than the Committee.

On social and economic rights, I remain something of a sceptic, although not about the concept that people have a right to housing or to access health care. Indeed, one of liberalism’s fundamental features is that it was increasingly widely defined to recognise that the possession of civil liberties was insufficient to guarantee freedom. People would not be free if they were prevented, by lack of access to health care, or by total lack of means, from exercising any freedom at all. So, as a Liberal, I am no stranger to the notion that rights in the economic and social sphere are very important and are fundamental to people’s enjoyment of freedom; however, it does not necessarily make those rights suitable or effective candidates for inclusion in a justiciable Bill of Rights.

I have the greatest respect for Albie Sachs, and not least for the way his court in South Africa has dealt with some of the issues that we are discussing; he and his colleagues must adjudicate in some matters of economic and social rights. It is very apparent from the history of South Africa why it should have been seen as so important to include those in any statement of the rights that people would have once apartheid was brought to an end. However, that still does not demonstrate that, to refer to his already quoted words,

“a country which does not include social and economic rights in some form in its Bill of Rights is a country which has given up on aspiration”.

That is nice phrasing, but there are other ways of aspiring, and expressing aspiration, than by giving people the impression that a justiciable right will enable them to have the housing they need, the employment opportunities they deserve, or the health care that could make such a difference to their lives. One of the key reasons for that is that all those things involve essentially political decisions about resources that Governments must make, and politicians must take responsibility for their failure to provide adequate care in certain kinds of ill health, or adequate employment opportunities. Those are, rightly, major political issues, but they are difficult to make justiciable, and they put courts in a difficult position.

We are not arguing for fully justiciable rights in that context. Our bull point is the progressive realisation of the rights, as set out, for example, in the international covenant on economic, social and cultural rights, which is part of the trio of important UN treaties on the matter. We are saying that the Government’s obligation should be progressively to realise those rights, and report to Parliament on progress, in a way similar to what is proposed in the Child Poverty Bill.

The distinction that I am drawing is between a justiciable statement of rights—a declaration of rights or Bill of Rights—and an aspirational statement of things that Government should achieve and do. That may, of course, in some respects have the force of law, if it is incorporated in legislation because parts of it have been found capable of being given a legal framework; that is of course sometimes done in the slightly roundabout way of giving public bodies the responsibility to set targets for achieving certain things, so that the question whether they have reasonably gone through the targeting process becomes potentially justiciable.

If we do not preserve the distinction, there is a danger of weakening the significance of the rights that are justiciable, and misleading people into thinking that both kinds of thing can be treated the same.

As a postscript to my right hon. Friend’s point, one of the difficulties of adding social and economic rights is that even if the courts might uphold such claims, it is, by definition, probably for the state to deliver them. That creates the risk of undermining the authority of the court, and therefore the Bill of Rights, in relation to the citizen. Civic and political rights can always be enforced, and, relatively, cost much less.

My hon. Friend develops precisely the point I was making, in a very helpful way.

The report deals with a number of other important issues, such as the involvement of Parliament in the derogation process. That is an extremely valuable contribution to the debate, which we should pursue. It also deals, as was mentioned in an earlier exchange, with devolution issues, and the fact that some rights that some people think would be appropriate in a Bill of Rights for England and Wales do not apply in the same way in Scotland, where similar objects are achieved by different processes. Less use is made of trial by jury, for example, than in England and Wales.

Lack of engagement presents a problem. I may have been too severely critical of the Minister, but at least I have given him the opportunity to defend himself and his Department; but it is the experience of the Committee of which I am Chairman, the Select Committee on Justice, as well as of the Human Rights Committee, that the level of engagement between the United Kingdom Government and devolved Governments, and the United Kingdom Parliament and devolved Parliaments and Assemblies, is well below what is really required to make the devolution settlement work. Perhaps that is not surprising. It is all relatively new and many of the participants have been busy looking after their own corner, as it were, whether that is governing Scotland or trying to work out how Departments covering England, or England and Wales, can relate to what is happening there. Our report “Devolution: A Decade On” underlines pretty firmly the ambiguities and uncertainties in the structure that is meant to deal with those things, and the need for progress.

Will the right hon. Gentleman clarify whether he is talking generally about the relationship between the United Kingdom Government and the devolved Administrations, or particularly in relation to the Green Paper on rights and responsibilities?

I had indeed moved from talking about the specific case, to say that the likely reason for what has happened is, as the Committee identifies, that what I describe is characteristic of much of the general pattern of relations between the component parts of Government in the United Kingdom in the early period since devolution.

To be absolutely clear, do I understand that the right hon. Gentleman is talking about something that is likely to be the case, as my hon. Friend the Member for Hendon was saying, but that he has not experienced himself?

My point is that I have taken ample evidence that the situation in relation to governance matters generally, between the various parts of the United Kingdom, is an unsatisfactory one. That is set out in the report, to which we await the Government’s response in due course, on how devolution is working. The Joint Committee on Human Rights identifies a particular problem, and the same things appear to have been happening in the area that I was talking about. It is not a criticism that I make too severely, because it is part of the growing pains of the devolution process, but it needs to be addressed.

That brings me to the fundamental point. Should we go through the process of creating a new Bill of Rights, or should we do more to make the one that we have work more effectively? One of the more worrying things is that several important rights have been damaged or abrogated under the present regime, and there is no particular evidence that the creation of an additional Bill of Rights would put a stop to that. Indeed, if anything, some of its advocates seem to hope that it would cause the Human Rights Act 1998 to have less impact than it does now. Much of what I am talking about relates to derogations in the context of anti-terrorism legislation, or matters in such legislation that are not the subject of derogation but which have been sources of loss of rights. Paragraph 37 of the report deals with evidence about several issues, including rights of assembly in the vicinity of Parliament and other features of anti-terrorism legislation, and the fact that those have effectively involved limitation or abrogation of rights.

We should be concentrating our effort on making sure that the existing system works, and that on the occasions when we must consider derogating from it we do so by a process that involves Parliament more fully and effectively. I remain a sceptic about the need to add to the corpus of human rights legislation at this stage. However, if we are to do so, I am glad that the Committee has raised some process issues. We are in the middle of a quite strange process, which is welcome, in one sense, to those of us who have always wanted constitutional reform; but constitutional reform is springing up all over the place. Prime Ministers and party leaders are coming out with speeches day after day about more and more reforms. More legislation is being offered, suggested, or, in the case of the parliamentary standards authority, brought forward in a matter of days.

However, there is a certain lack of coherence and shape to the process, and there is no real process by which to engage with citizens to ensure that there is some consensus on constitutional change. I do not want to dampen the enthusiasm for constitutional reform at all, but I want to make sure we have a coherent process. My Committee will do some more work on that. However, in its reflections on the sort of process that we might need, the Joint Committee on Human Rights has done us a service by trying to widen the scope. I have severe doubts about whether that is a road we need to go down at all, as far as human rights legislation is concerned. However, if we do, a process that involves our citizens more fully and leads to very considered decisions in this area is vital. I fear that we may run the risk of having a dangerous constitution Act, which is something we should avoid.

It is a great pleasure to follow my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith). I agree with a great deal of what he said. I also agree with the Committee’s report in two crucial respects: it is wrong to link human rights with individual responsibilities—as my right hon. Friend said—and it makes no sense to link the human rights debate with attempts to promote notions of Britishness.

The Committee was right on those issues because of a reason that relates to both of them. Human rights form a basic minimum standard, below which no civilised Government should ever fall in their dealings with any human. That means that complying with human rights standards simply cannot be made conditional on the behaviour of individuals, as my right hon. Friend demonstrated. The state must not behave in ways that violate those standards, no matter with whom they are dealing. That applies to unpopular and antisocial people, as well as everyone else.

For the same reason, one cannot say that human rights are peculiarly British. They are universal and they apply to all states and humans—not just the citizens of particular states and the residents of particular places. It is no more British—in some cases it might be less, but it is certainly no more—to support human rights than it is French, Canadian or Australian. I also agree with the Committee when it states that we should be suspicious of the motives of those who call for a British Bill of Rights and responsibilities. If the people calling for that were genuinely concerned about strengthening human rights protection—as is my right hon. Friend, the hon. Member for Hendon (Mr. Dismore) and I—there would not be a problem. However, the reality is that many of those who call for such a measure—both the Government and the official Opposition—show no sign whatsoever of wanting to strengthen the law. The hon. Member for Hendon mentioned a key example in the form of his Human Rights Act 1998 (Meaning of Public Authority) Bill, which I strongly support. The Bill would extend the protection of human rights law, so that it is exercisable against those private organisations that carry out state functions—particularly under contracting-out arrangements. When the Bill comes before the House in about 10 days’ time, I urge the Government to allow it through because it would strengthen the law in a useful and important way.

The problem is that the real motive for introducing a British Bill of Rights and responsibilities seems to be simply to appease an angry right-wing populist press that has always hated the Human Rights Act. They hate it for several reasons. My right hon. Friend the Member for Berwick-upon-Tweed mentioned one of the reasons, which is the incorrect association of the European convention on human rights with the European Union. Another motive, which is also technically incorrect, is the association that some newspapers make between the Human Rights Act and the development of privacy law by the courts. The third reason why such parts of the press hate the European convention on human rights and the Human Rights Act is because they do not believe in the central idea of human rights in the first place, which is that there should be limits to what a majority can do to an unpopular minority. It is easy to sell newspapers by running campaigns against despised minorities.

Absolutely. As the Minister said, I hope that after recent events, people in this Room and this House will see that issue rather more clearly than they have done. To the extent that human rights law gets in the way of such campaigns, those newspapers target human rights law as well. I suppose that cowering before the press is a habit we have all acquired, but we should ask where that has led. In the field of human rights, it has led to the failure—sometimes a complete failure—to defend the idea of human rights itself.

We are now in a situation where some people say that the thing to do is to attempt to re-launch the idea of human rights in a sort of disguise, to try to deal with the anti-European bile—because that is what it is—by talking about the Britishness of rights, and to try to deal with the populism by talking about responsibilities. That is where the Government are coming from in terms of a political strategy. However, I do not think that such an approach can possibly work; actually it will make the situation worse. Such a policy fails to understand the basic problem, which is that those who oppose human rights on populist grounds simply do not accept the basic idea that even unpopular people deserve rights. So, saying that rights are British or linking them with responsibilities will make things worse, because doing so concedes to the argument that only the popular should be protected. If we say to populists that human rights should protect us all, we will not persuade them that the unpopular should be protected. All they will say is, “Why should undeserving people get the rights that I have?” Such an approach will not work and I plead with the Government to move away from that political strategy, because it will make things worse.

The Committee’s point of view seems to be that, although there are bad reasons for going forward with a British Bill of Rights and freedoms project, there are also good reasons to do so. The Committee considers it a good idea to launch into a full scale reform of human rights law now—not on the basis put forward by the Government or the official Opposition, but on the more rational basis that a large number of improvements in the law could be made. I can see that point, but I am not convinced it is the right time to carry out such reform. The hon. Member for Hendon talked about having a consensus across the parties, but it breaks down on that issue, first, because our reasons for supporting the general idea of constitutional reform and a Bill of Rights are different from those of the Government and, secondly, because we disagree on the points about tactics and strategy.

Given the atmosphere in which we are living, is this the right time to launch a reform of this particular part of the structure? We must first secure what we have, and that means defending the idea of human rights and the Human Rights Act. The Conservatives try to have it both ways by saying that they are, of course, in favour of human rights and that they are simply against the Human Rights Act. That is a self-undermining argument, which cannot be sustained in the long term. In fact, the political meaning of such an argument is obvious; in reality, the Conservatives are trying to side with the populists who are against the whole idea.

I absolutely agree with my hon. Friend. I have been troubled that, despite the strong words issued by the present Lord Chancellor in some of his previous roles and by Lord Falconer when he was Lord Chancellor that the Government were keen to promote the Human Rights Act and to explain what the European convention meant, the position still, to be honest, has not been clearly, regularly and consistently enunciated so that ordinary British people understand the range of rights. If they did, they would be hugely reassured rather than occasionally troubled.

I thank my hon. Friend. Lord Falconer started to defend the Human Rights Act but then that seemed to fade away. The present Lord Chancellor gives interviews, three quarters of which are marvellous. He includes strong defences of the idea of human rights and the Human Rights Act, but then, towards the end or in crucial parts, he slips away to the other point of view. He is trying to be both for and against the Daily Mail in the Daily Mail. We need to be much clearer about human rights.

For the record, may I suggest that the hon. Gentleman actually read the interview that my right hon. Friend the Lord Chancellor gave to the Daily Mail? If he reads it carefully, he will see that my right hon. Friend refers to other points of view. It is perfectly legitimate to reflect the other points of view in this country about the Human Rights Act. It does not mean that he supports those views; he is merely reflecting them.

I had the misfortune of reading that article earlier today. The Lord Chancellor defends the idea of human rights for three quarters of the time but then, towards the end, he says that he gets frustrated with the judges’ interpretations of human rights because they give the impression that the Human Rights Act is a villain’s charter. He does not say that it is a villain’s charter—he blames the judges for making it a villain’s charter, which makes the whole thing worse rather than better.

The hon. Gentleman criticises the Conservatives for forming a critique of the Human Rights Act. Would he, as a Liberal, defend the status quo in respect of the Strasbourg court jurisprudence? Perhaps he would not share the concerns of my Front-Bench team, but would he share the concerns of the noble Lord Hoffmann, who is concerned about the Strasbourg court, in effect, second-guessing the courts and, indeed, the Parliament of this land?

If one is part of a constitutional structure, one has to take the rough with the smooth. One cannot go around saying, “We accept the court’s judgments when we agree with them, but we do not accept them when we disagree with them.” That is not how a legal structure works.

I have heard the argument propagated by the Conservatives. It is nonsense. The way things are now, if a judgment is made against another country, it is not binding on the UK, according to their argument. That is fine, but, eventually, there will be a case against the UK, and it will be 10 times worse when we, rather than somebody else, are found to have done something wrong, instead of just putting things right ourselves.

That is precisely right. The Conservatives’ entire position strikes me as incoherent. If one switches what they are saying to the position of other countries and tries to work it out from that point of view, it makes no sense whatsoever.

We need to say more clearly that human rights are there to stop states, including ours, acting in totally unacceptable ways, and that it does not matter whether when the state does those things it does them to good people or to bad people—people approved of or disapproved of by the newspapers.

We need to say clearly that asserting a human right is not a selfish act. There is a great deal of rhetoric—more on the left than on the right, but some on the right as well—that human rights are part of some libertarian plot to reduce all thinking to that of atomistic individuals who assert their own interests through a legal structure and do not care about anybody else. When someone asserts a human right, they are doing a public act, the effect of which is to restrain the Government from doing something that they should not do in their public and political role. It is not the privatisation of politics but part of politics itself. Finally, we need to say clearly that newspapers that campaign against the Human Rights Act are endangering all our liberties.

To come back to my central point about strategy and tactics, after we have won the battle for the idea of human rights, we can move on to talk about the improvements in the law that the Committee rightly points out could be achieved. I have already been speaking for 15 minutes, so I do not want to go through all the Committee’s specific proposals in the detail that they deserve, especially as I think that in many cases this is not quite the right time to press them. I am generally sympathetic to what the Committee is saying, but I would like to make two general criticisms in the hope that it might help the debate in future.

The first criticism is that some of the Committee’s proposals seem to mix up human rights and civil rights; that is, rights that belong to all humans in all states, and the rights of citizens of a particular state or the residents of a particular place. I can give an example which, although I am very much in favour of the Committee’s conclusion, nevertheless makes my point clearly. The right to a fair trial is a human right in that it is universal, but the specific right to a jury trial is a civil right of people in England and Wales—in that case, of residents rather than citizens. That does not mean that the right to jury trial should not be given a special protected status similar to that given to a human right—I would be in favour of doing that—but it cannot be the same thing. It is not universal; it is not about all states or all humans everywhere in the world.

The same point applies to much of the debate about social and economic rights, and possibly environmental rights as well. The hon. Member for Hendon is right to say that there is no explicit human right to be protected from destitution, but destitution can amount to violation of the article 3 right to be protected from inhuman, degrading treatment, or even the right to life in article 2. There is a sense in which freedom from destitution is a human right because it protects the basics, the fundamentals—life and basic dignity.

It would be possible to go further than that on the basis of justiciable rights, as long as one knew what one was doing. For example, there is a sense in which to exercise one’s political rights to be a citizen, one needs some basic level of health care, housing and education. It would be only a minimum standard and would require some resources—this is not an argument about all resources—but it would be possible to do that on the basis of what was owed to citizens or residents, rather than what is owed to all humans in the world, wherever they might be.

The second criticism is that some confusion seems to have crept into the Committee’s thinking, and the Government’s thinking, too, about the difference between a written constitution as a project and a Bill of Rights as a project. I noticed the other day that the Prime Minister had returned to his view, which he mentioned right at the start of his term of office, that he was in favour of a written constitution.

A written constitution project is a different thing. For example, entrenchment of a Bill of Rights can occur in a meaningful, full way only in the context of a written constitution. Only if there is a written constitution can one get away from the fundamental problems of the sovereignty of Parliament, and the idea that Parliament can pass anything as a law and can overturn anything that has previously been passed as a law. In reality, one can get away from that only if there is a written constitution.

This is where the argument about preambles and declarations has gone wrong. Much has been said about statements of values and symbolic statements of that kind. They are the kind of thing that one sees in the preambles to written constitutions. They make perfect sense in such contexts, but one does not see them in the preamble to Bills of Rights or human rights Acts as limitations on governmental power. It is better to state the values to which the state is committed in the structure of the constitution. There is no need to do that simply in the limiting bit—in the Bill of Rights bit or in the Human Rights Act bit. The whole thing requires a preamble.

If the Government were to say that in drawing up their statement of values they were trying to draft an early version of the preamble to a written constitution, rather than something to do with the Bill of Rights, I could see what they were up to and would understand it. There is an issue about whether that is the right way round, and some people would argue that the mechanics should be done first, and that the values should then be considered, but linking the writing of the preamble to reform of human rights law is odd and risky, and should be rethought.

Despite some reservations about tactics and strategy in the Committee’s report, I very much welcome it, and I urge the Government to be more positive about it.

I welcome this debate, and the Joint Committee’s report. The subject is important, and has attracted all parties for different reasons. I commend the Committee for the depth of its analysis.

As the hon. Member for Hendon (Mr. Dismore) said, it is important to have consensus, but it has been suggested that the legislation will not be introduced until after the general election. It is important that that consensus is both political and public, and that when we consider making quick decisions to put our own house in order we do not circumvent more considered judgments on where Parliament fits into a new constitutional settlement. In the present climate of disconnection with the public, we must not rush too far ahead.

I trust that the hon. Member for Hendon, the Minister and other hon. Members involved in drawing up the new constitutional settlement are aware of the fate that befell the authors of the declaration of the rights of men and of the citizen promulgated by the French national convention in 1789. The authors, as hon. Members will be aware, were guillotined in 1794. I give way to an hon. Member who might be in the firing line.

Thomas Paine was one of the main architects, but he was not guillotined. He was locked up for a while, but was sprung by the then American ambassador, and ended up causing as much trouble in America as he had everywhere else.

I am grateful for that information, and I am willing to be corrected, but my understanding is that the guillotine fell on others who were party to early consideration of the declaration. I concede that that had as much to do with the febrile political atmosphere in revolutionary France as to the quality and relevance of the rights and declaration. I do not suggest the guillotine for the hon. Gentleman, or even the Minister, but we must be aware of the political climate and how it affects constitutional processes. It is important that we consider the context carefully.

Our current political crisis may not be on the scale of that in revolutionary France, but it demands that we urgently address constitutional issues, such as the relationship of Parliament and the Executive, and recognise that constitutional questions are immediately being thrown up. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) referred to the Parliamentary Standards Bill, and in a matter of days we will, as some would say, seek to ride roughshod over the last Bill of Rights in 1689 when considering enforcement of the code of conduct. It is important that when we strive for consensus and consideration we consider all aspects, even when we must say, “No, let’s wait, and take more time to consider matters.”

Perhaps our political crisis highlights the need for a new constitutional settlement such as new Bill of Rights, but we should proceed with due caution. It is vital to the vibrancy of our democracy and our respect for human rights to ensure that Parliament is sovereign. On the comments made by the hon. Member for Cambridge (David Howarth), it is a priority to put our house in order, and to do so soon.

Before leaving the French revolution and that historical note, perhaps we should be aware of Jeremy Bentham’s criticism of the French declaration—that it failed to provide any legal remedies to enforce rights, that those rights were too abstract to have any real meaning, and that it was favoured

“by poets, rhetoricians, and dealers in moral and intellectual poisons”.

He said that in pejorative tones, but we must keep an eye on the relevance of rights and their enforceability.

It is important to discuss the matter in Parliament, which is why this debate is welcome. The hon. Member for Hendon said that it has taken its time to come to debate, and it took 14 or so months for the Government to produce the Green Paper, but at least we have some focus on the road down which they want to take us when considering human rights, what they should be, and whether and how they should be enshrined in a new Bill of Rights. I welcome our future debates and discussions.

For too long, public perception has been that Parliament and the country are looking outside the debate and issues concerning human rights, and perhaps in some ways it resembles a game of tennis at Wimbledon—it would be a welcome place to be on this bright, sunny afternoon—with human rights being knocked about like a tennis ball. To take the Wimbledon analogy further, despite human rights being debated in Britain, British participants often seem to have little involvement and little ownership, and seem to have been spectators.

At the time of the Human Rights Act 1998, the present Secretary of State for Justice and Lord Chancellor claimed, and repeated it in the Green Paper, that the Labour Government were bringing human rights home. Those words made good headlines and carry on the sporting analogy, but they were historically inaccurate. Freedom and liberty found their home 200 years earlier in common law. To take issue with the hon. Member for Cambridge, English and British rights have formed part of our identity in the rule of law from the Saxon moot courts, Magna Carta and beyond. Those important traditions form our British identity.

I shall not stay in history, because we must examine the present architecture of human rights. It is important to recognise that a key problem—

I do not want to interrupt the hon. Gentleman’s flow, but before he leaves his historical point, will he clarify something? Is it important that British citizens have the right to enforce their rights under international conventions to which the United Kingdom is a signatory? I am referring specifically to the European convention on human rights. If so, is it better for them to be able to enforce those rights in a British court, or to have to go to Strasbourg to do so?

If the Minister is patient, I will, as he anticipates, go through that point with some care. He can come back to me by all means if he does not think that what I say is clear.

The debate can be polarised and the criticism of positions can also be polarised. People can suggest that it is just a Eurosceptic view that expresses concerns about the way in which the European Court of Human Rights in Strasbourg deals with issues. However, it is a key problem for the people in this country that the Strasbourg Court lacks proper constitutional legitimacy in this country. That is not just my view or a Eurosceptic view. It is, as I have mentioned, the view of Lord Hoffmann. He said in a lecture in March to the Judicial Studies Board:

“Whatever one may say about the wisdom or even correctness of decisions of the Court of Justice in Luxembourg, no one can criticise their legitimacy in laying down uniform rules for the European Union in those areas which fall within the scope of the Treaty. But the Convention does not give the Strasbourg court equivalent legitimacy. As the case law shows, there is virtually no aspect of our legal system, from land law to social security to torts to consumer contracts, which is not arguably touched at some point by human rights. But we have not surrendered our sovereignty over all these matters. We remain an independent nation with its own legal system, evolved over centuries of constitutional struggle and pragmatic change.”

Like Lord Hoffmann, I would not suggest that our system is perfect, but it is important, when we seek to improve the way in which human rights are applied, that we should be making those improvements in this Parliament.

Does that not completely blow out of the water the Conservative party’s arguments about the importance of the Strasbourg Court and how important the Human Rights Act is in the UK?

No, it does not—far from it. Lord Hoffmann’s criticism made the point that the Strasbourg Court had not limited itself to the strict judicial discipline of interpreting and applying convention rights. He said in relation to the way in which it has applied convention rights:

“It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States.”

He went on to give examples of circumstances in which the Strasbourg Court had sought to second-guess UK regulations. He referred to the right to privacy and family life being expanded to second-guess regulation governing night flights at Heathrow. I concur with his point. The courts have a duty to apply the law vigorously, as they do up and down this land, but when they stray into the area of law-making, which is the job of elected law-makers, that needs to be rectified. That is our concern.

Another great concern of not only the Conservative party but many others is that the Human Rights Act has, by its very process, exacerbated the problems identified by Lord Hoffmann. This may not be the time to go through the details and examples, but that matter needs to be properly considered and dealt with. We need to move away from the situation in which UK judges are matching Strasbourg’s case law in domestic law. Significantly, that is not required by the convention.

This is one of the most bizarre points; it is one of the points of Conservative party policy that I find most difficult to understand. To follow up the Minister’s intervention, how on earth can it be to the detriment of UK citizens and other people who may not be citizens to have their cases decided by a UK court and a UK judge, rather than having to go to Strasbourg to have their cases decided? How on earth can it be against their interests to have a British judge, who understands the British way of life and British circumstances, deciding a case, rather than the Court in Strasbourg deciding it?

I am not resiling from the European convention, but one has to recognise that there are deficiencies. There are deficiencies in the Human Rights Act. One has only to consider the case of retention of DNA samples from innocent suspects. I understand that it took more than eight years and the matter had to be taken beyond our own courts to Strasbourg in order for the Government to be forced to understand the unlawfulness of retaining those samples. That is an example of the Human Rights Act not properly protecting human rights, and the matter eventually had to be taken to Strasbourg to confirm them. One has to recognise that the present architecture is not acceptable and is not doing the job that it should be doing.

This is a point that I have never quite understood about the Conservative party, either. If the problem, as the Conservatives see it, is with the Strasbourg Court’s decisions, the only remedy is to change things at that level—to obtain agreement in the Council of Europe for a change to be made in the convention itself—or to leave the convention. There are no other possibilities. One cannot change the content of the convention by changing the content of domestic law. It just does not work, so what is the answer to the problem that the Conservative party and Lord Hoffmann have identified that makes sense within the architecture in which we find ourselves?

The answer is to ensure that we have legislation that is applied and enforced by courts and that does not resile from the principles in the European convention; we would not wish to do that. If one looks at the text of the convention, one sees deeply held British values, such as the right of the individual against arbitrary and excessive state powers. The issue is the application and interpretation of it. One has to accept that Strasbourg—

In a moment. One has to accept that Strasbourg Court jurisprudence has in many ways gone too far and gone beyond what our country and our courts should properly be applying. It is important that we have a Bill of Rights and that we have the opportunity with a new Bill of Rights to consider a Bill that can be properly compatible with the European convention on human rights, but is not bound by Strasbourg Court jurisprudence.

Shortly we shall have a vote and the hon. Gentleman may want to reflect on what he is saying. I would be grateful for just a little clarification. First he seems to be saying that there are deficiencies in the Strasbourg jurisprudence and that needs to be changed, which is the point to which the hon. Member for Cambridge (David Howarth) referred. Next he seems to be saying that he does not resile from it; he thinks that it is a wonderful thing and it embodies British values; and the problem is the way in which those rights have been brought home in the Human Rights Act. If he is in fact making that last point, can he be specific? Where specifically are the deficiencies in the drafting of the Human Rights Act? I am not talking about specific cases, in respect of which he may take issue with the judges. Which bits of the Human Rights Act would he like to be redrafted? Can he give us some clarification on that?

I do not propose to go into a debate on all the schedules to the Human Rights Act. We had that debate at the time. We scrutinised it and, from the Front Bench, we predicted the confrontation between the judges and the Executive in relation to a number of issues. The Minister does not wish me to, but I could go through real examples of where the Human Rights Act has failed this country’s interests. There have been instances in which the Human Rights Act has not properly protected human rights. There are examples in which it has not gone far enough and in which it has been deficient. We need to ensure that we have a Bill of Rights that is properly compatible with the European convention on human rights—

I wish to take this argument further. We also need a Bill that is not wholly bound by the Strasbourg Court jurisprudence. That is not necessary; the convention does not require it. We need better to define the ECHR prescriptions and ensure that those principles are expressed so that they are relevant to all people. We need to ensure that we do that because when one considers the way in which the Government have dealt with human rights in the past 10 years—the right hon. Member for Berwick-upon-Tweed made a point in this regard—–they are found wanting. That is an important context.

In a genuine search for truth, I want to establish whether the hon. Gentleman is proposing that we pass a new British Bill of Rights so that people can have a choice between two routes—either invoking the European convention in both British and Strasbourg courts or applying a British Human Rights Act. I shall leave aside the question of how one might impact on the other. Will we have a choice, or will the British Act depend on us abandoning our signature to the European convention on human rights?

What is needed is clarification. The answer is no to choice and no to abandoning our signature to the convention. We need to clarify how the ECHR applies to UK citizens. Such clarification would be welcome. Indeed, our debate highlights how welcome it would be.

No, I wish to make further progress.

What the Government seek in wanting to draw up a new constitutional settlement is important. We should consider their record over the last 10 years in seeking to enshrine freedom under the law. Do they have the credibility to take it forward, given that they have been willing to bypass basic legal principles in the name of administrative efficiency and control?

The Government have proposed detaining suspects for up to six weeks without charge; control orders; a plethora of criminal justice legislation, with a new piece of legislation every six months; and they have tried to remove judicial review in asylum cases. They have attempted to limit trial by jury at various times; and they have changed the burden of proof in some criminal cases to facilitate conviction. Those actions highlight an important transformation over the past 10 years.

We should also consider the increase in administrative penalties, imposed without trial; I think of the antisocial behaviour order and the fixed penalty notice. The Government have also taken intrusive powers to acquire and retain national databases giving detailed information on the law-abiding; and the law has often been dominated by trivia, with the Government devoting time to regulating on minor matters. The context is important. Ever more of our individual freedoms are being taken by the state, thus undermining individual responsibility and neighbourliness. The breakdown in the rule of law over the past 10 years is making us less safe and is eroding confidence in what was once the best and fairest justice system in the world. That is relevant, as one has to ask whether the Government have the credibility to take the matter forward. I give two examples from the Green Paper on the subject.

The first is about good administration, which is referred to in paragraph 3.39. The question is whether administrative principles lead to good administration being justiciable. We should remember how the Government have treated the parliamentary ombudsman over the last few years. They rejected her recommendations and as a result have undermined respect for that office. Such Government failures could lead to a groundswell of concern that they are not doing their job properly. Not respecting the role of the ombudsman could lead to support for some justiciable rights on such matters.

The second example is in relation to jury trial, which was referred to by the hon. Member for Cambridge. A good argument can be made for a right to jury trial to be enshrined in a bill of rights, but where do the Government stand on the matter? They have a bad history in seeking to remove jury trial. Despite votes to kick out Government proposals on limiting jury trial, they still continue to perpetuate the debate. Indeed, paragraph 3.30 states:

“There is also a legitimate debate over whether some cases, particularly serious fraud cases, are simply too complex to present properly to a jury and therefore, jury trial is an unreliable way of delivering justice in those cases.”

The Government are still lukewarm about that important principle. Perhaps additional support is needed to ensure that it is enshrined in a Bill of Rights, given their ambivalence on the subject.

In some ways, that is in contrast to the commentary and consideration of the Joint Committee’s recommendations on whether economic and social rights should be incorporated in a new Bill of rights. However, I recognise the scepticism of the right hon. Member for Berwick-upon-Tweed on those rights being justiciable, particularly on whether they would weaken rights that should properly be included in a Bill of Rights.

Concern was expressed by the Joint Committee, and must be expressed again, on how those rights would be enforced. The Government do not seek to go down that route at this stage in the continuum, but where do they wish to go? It is a matter of great concern, given that we want to reassert the authority of Parliament, that the Government should think of abdicating responsibility for deciding how scarce resources should be allocated to unelected judges.

In an article in The Sunday Times on 22 March, the Minister referred to “constitutional expression”, saying:

“Words have power in their own right.”

Words certainly can have power: they can raise hope. Constitutional documents may contain symbolism and lead to aspirations, as well as enforceable rights. However, words without legal force will mean us ending up with those imaginary rights that Bentham thought would lead to anarchy in France. I do not suggest that that would be the case today, but would it not further perpetuate people’s disconnection with Parliament?

People believe that Parliament should be the place to deliver such economic and social rights, scrutinising legislation to ensure that duties are explained and delivered. However, such rights would not deal with what many people say they want when answering polls on whether they want a decent house or a decent health service. Do they want to see such things properly shown and exhibited in a constitutional settlement rather than having the Government delivering them?

The Government would have us believe that a quiet revolution is in place, that it will lead us to a next stage, and that all is rosy in the constitutional garden. Thankfully, legislation on the subject will not happen until after the next general election. We should certainly agree on that point, because we shall then have a new Parliament. We shall then have a new Government—one that has not been guilty of constitutional vandalism in that garden, has not been trampling on centuries-old liberties and has not been engaging in over-regulating conduct.

Although the Government want us to deliberate on the matter and discuss it—we should try to reach consensus—we will not be able to reach that new dawn of constitutional change if the Government do not recognise the importance of restoring trust and confidence. That trust and confidence has been broken by excessive state prescription and a lack of respect for the need to restore tradition, freedom, justice, liberty and tolerance. The Government have failed by neglecting that need, and it will indeed take a general election for it to happen.

This is a welcome debate, and I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on securing it. It is a profoundly important matter, and we heard important contributions from everyone who has spoken. I am grateful to all who contributed to the debate. There are five of us in this shady Chamber this afternoon. My hon. Friend the Member for Hendon pointed out that this is the first time that Parliament has had a chance to debate the subject, but from this small and select gathering I am sure that those important contributions will ripple out to engage the nation in due course—and so they should.

The Prime Minister’s recent statement on democratic renewal showed the Government’s continuing commitment to the process of radical constitutional change. It is not constitutional vandalism, as the hon. Member for Enfield, Southgate (Mr. Burrowes) suggested, but profound and radical constitutional reform.

We brought about devolution, which most people will agree has been a success. It was sometimes a difficult and challenging experience but it was none the less successful. No one watching the recent Mayoral elections in London would have seen anything other than a vigorous democracy; even if it did not produce the result that some would have wanted, it was democracy in action, and I think that the people of London appreciated that—just as the people of the United Kingdom appreciate all the devolution measures that we have brought about.

We also brought in the Freedom of Information Act 2000, and we have seen the benefits of that throughout its history. In recent weeks, that Act has been particularly challenging for many Members of the House—and indeed for the institution of Parliament.

Nevertheless, anyone looking at events in recent weeks would agree that the Freedom of Information Act has done nothing but good for the constitutional health of our democracy. We also introduced the Human Rights Act 1998, which I shall talk about at greater length shortly. It was a profoundly important measure that has already proved itself to be of great value to the people of this country, and will continue to do so, if left on the statute book.

We have been criticised for our attention to constitutional reform, not by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the hon. Member for Cambridge (David Howarth) or their party, but by many others, including commentators and those in the Conservative party. When we produced the Green Paper on the governance of Britain, commentators asked, “What does all this mean down the Dog and Duck? Why are you concentrating on this?” Regularly we hear, “What’s this got to do with bread-and-butter politics?” Well, I think that we have seen the reason we have paid it such attention; it is instructive how many people in this place have suddenly developed an interest in constitutional reform in recent weeks.

Last August the Joint Committee on Human Rights produced a report. I pay tribute to that report and the work of my hon. Friend the Member for Hendon (Mr. Dismore) and his Committee colleagues in producing it. It was an extremely important contribution to the debate, as has been evidenced in contributions today. It will continue to feature as a centrepiece of the national debate that the Government began following the publication of the March Green Paper on a Bill of Rights and Responsibilities. I commend that Green Paper to everybody—it was not always clear from today’s contributions that it has been read thoroughly.

As the Green Paper points out, how individuals should live together, what rights and freedoms we should enjoy in relation to each other and against the state, and how they should be balanced by the responsibilities that we owe each other, are among the most fundamental questions in politics. They are not abstractions or removed from the practical politics of jobs, housing, health care and education, precisely because such constitutional arrangements determine how power is distributed in our country—where and how it is located and what the process should be for changing that location. Given that these questions are about power, they determine how every other question in our national life will be answered.

We believe that this is the right time for a debate about whether we should have a new Bill of Rights and Responsibilities, potentially leading to a written constitution, and that that debate should be had extensively and comprehensively with the British people. At the heart of the Government’s Green Paper is a central question: are there rights and responsibilities, over and above those entrenched in the Human Rights Act, that are so fundamental to our society and sense of ourselves that they should be entrenched in a way that renders them part of our constitutional fabric and not easily vulnerable to the vagaries of party politics and elections?

We specifically did not raise the subject of the Human Rights Act, in this context, as a matter for debate. In my view, the Act is not strictly relevant to the subject of this debate, but because it was raised so often, I shall, with your indulgence, Miss Begg, address some of the points made about it. The Government are proud to have introduced the Act and do not resile from it at all. It has already proved itself to be of enormous benefit to the people of this country, be they powerful newspaper magnates, powerful campaigning organisations, such as the Countryside Alliance, or ordinary individuals seeking the protection of the Act—for example, vulnerable, elderly couples seeking to spend their last years together, potentially separated by a state institution, but able to remain together through recourse to the Act. It contains profoundly important protections for every individual in this country, and we do not think, therefore, that the matter needs to be debated. That is why—I say this in answer to my hon. Friend the Member for Hendon—we did not include the question of the scope of the Act within the consultation. We shall consult on it separately, because it is a separate issue, in this context, and so should be dealt with separately.

The Minister has extolled the supposed virtues of the Human Rights Act. So why are the Government consulting on it separately? What is the rationale behind that? If it does not need changing, why consult on it?

I am grateful to the hon. Gentleman for enabling me to clarify my point. I said that we are consulting on the scope of the Act. He might recall that my hon. Friend the Member for Hendon referred to the YL case, which was heard in the House of Lords and dealt with the scope of the Act. As my hon. Friend has pointed out persistently—he did so again today—the House of Lords decision was unexpected. I do not think that it was in the minds of many of those who voted for the Act that its scope should be so restrictive. We have given an undertaking to deal with, and have dealt with, the consequences of that decision. I am afraid that I do not agree with his characterisation of our actions. Did he call it a patch-up? Would he remind me of his exact phrase? I certainly disagreed with it, but I would like to remember what I am disagreeing with.

I said that it was a sticking plaster, because it dealt with just one aspect of a broader principle. I accept the direct consequence of the YL case for care homes, but the judgment has much wider implications. Also, will the Minister indicate the time scale for the consultation?

I am extremely grateful to my hon. Friend. I remember now why I disagreed with him.

Sitting suspended for Divisions in the House.

On resuming—

As hon. Members will recall, I was talking about the Human Rights Act 1998, and I wanted to pick up on a few of the points that were made about it in the debate. The hon. Member for Cambridge and the right hon. Member for Berwick-upon-Tweed, who is sadly no longer in his place, criticised the way in which the Government have promoted and defended it. They said that we have not done so, but I am afraid they are profoundly misinformed.

We have an active rebuttal unit in the Ministry of Justice. When myths and misperceptions about the 1998 Act are promulgated in the press and elsewhere, we robustly rebut them. We defend the Act, as I have today. Above all, we set up the Equality and Human Rights Commission, not only to defend the Act, but to do the job of promoting a human rights culture in this country. That is profoundly important for the all the reasons that right hon. and hon. Members have given. We agree with everything that has been said about the importance of human rights in this country, which is why we set up the EHRC with a £70 million budget, to try to ensure that the people of this country understand the importance of human rights.

Although the hon. Member for Enfield, Southgate may disagree about some of the practical implications, even he and his party would agree on the fundamental importance of human rights. We are committed to the 1998 Act and to ensuring that there is a human rights culture in this country that properly embeds fundamental protections of the freedoms and liberties of the individual against the state. In the end, that is what it is about, and we know from recent history in Europe and elsewhere just how fundamental it is.

That brings me neatly to point made by the hon. Member for Enfield, Southgate, who described the trampling of liberties. I do not want to go case by case over the examples that he gave—they have been the subject of elaborate debate in the House and elsewhere—but I want to refer him to the estimable Convention on Modern Liberty, which has already been cited in the debate. Like me, many of his party took part in its deliberations. He will be well aware of the approach that the convention took.

The contribution of Lord Bingham, one of the most distinguished jurists in recent years in this country, is enshrined on the convention’s website. It was lauded by almost every speaker at the convention and certainly by the organisers, who took it as one of the finest contributions of that important day’s deliberations and debates. I draw these remarks to the attention of the hon. Member for Enfield, Southgate in particular. In his much-acclaimed contribution to the convention, Lord Bingham said:

“It seems clear that the last half century has seen an erosion of values once held dear.”

So far, I think that the hon. Gentleman would agree—I hope that he would. Lord Bingham went on to say:

“This is not the work of one party or one government, certainly not of the present government which in enacting the Human Rights Act coming into office took the single most powerful step in another direction”.

That is why the Human Rights Act is so important, and why it is important that it is not tampered or trifled with in any way.

The hon. Gentleman quoted Lord Hoffmann in a recent speech. I am aware of that speech, and I was interested by the hon. Gentleman’s characterisation of what the speech said. I do not want to linger too much on this point, though, as I wish to move on to the substance of the debate, which is the Green Paper on the Bill of Rights and Responsibilities.

The Committee report; sorry. I stand corrected, quite rightly, by my hon. Friend.

I draw the attention of the hon. Member for Enfield, Southgate to what Lord Hoffmann said in his speech:

“I have no difficulty about the text of the European Convention or its adoption as part of United Kingdom law in the Human Rights Act 1998.”

That is the learned Lord Hoffmann, now a mentor to the Conservative party in formulating its policy. That mentor said:

“There is nothing to be gained by fiddling with the language.”

As yet, I have heard no contribution from the Conservative party suggesting anything other than that the Conservatives are going to fiddle with the language of the Human Rights Act. I commend their mentor’s words to them and hope that they will be guided by them.

Moving on to substance of the debate, should we move beyond the Human Rights Act and build on it? Are there rights, protections and responsibilities so fundamental to our way of life, our society and our sense of ourselves in this country that they should be entrenched in a way that renders them not susceptible or easily vulnerable to the vagaries of party politics and elections? These are profound questions, particularly now, when so much that we have taken for granted in recent years clearly can no longer be taken for granted. They are also difficult questions. Rights and freedoms always carry with them the cost of conflict and raise agonisingly difficult questions, precisely because they are about power and the distribution of power in society.

What are the limits of the rights of the individual against others? How far can the state arrogate to itself the power to act on individuals’ behalf? Incidentally, the state is not always the enemy of the individual. The history of this country shows how well the state can be the guarantor of the rights of the most vulnerable in our society. The national health service and our wider welfare system are part of the state in that context. In a democracy, what are the proper limits on the power of the majority? The hon. Member for Cambridge has often and eloquently described the importance of that question in the production of a decent and civilised society.

This is not really a debate about whether to protect individuals but about how best to do so. That brings into play the question of economic and social rights. We know that most of the rights—to education, health care, housing and the other things described by my hon. Friend the Member for Hendon—that would be covered are already given and protected in various bits of statute dotted throughout our constitutional arrangements. He mentioned housing—he has been active and diligent on that matter—but he did not mention, for example, all the action that the Government have taken already to protect home owners and vulnerable families. I will briefly run through our actions to show that there are other ways of protecting those issues that do not necessarily require constitutional entrenchment.

The matter is one for proper debate, but that debate is not about whether vulnerable people should be protected in such matters but about how best to protect them. I shall run through some of the action that we have taken and then point out the need to address the question of whether we should go further to provide some sort of constitutional protection in this and other areas.

I shall, but first I want to remind my hon. Friend of some of the wonderful things that we have done. We introduced the home owner mortgage support scheme, which enables eligible borrowers to reduce their monthly mortgage interest payments to affordable levels for up to two years. We have made changes to the eligibility criteria for income support for mortgage interest. We have produced a mortgage arrears pre-action protocol, housing arrears pre-action scheme pilots and so on. We have taken a range of actions to try to protect some of the most vulnerable people and to ensure that they get the housing that they need.

When I was talking about home repossessions, I mentioned the fact that the Government have taken a number of initiatives that have led to a reduction in the estimated number of repossessions. However, there is no overarching, underpinning right, which is what we are arguing for. Furthermore, will he support my Bill tomorrow?

I am sure that my hon. Friend, as always, will make a valuable contribution when he introduces his Bill, but I am afraid that, as always, some issues will need to be resolved before we can support it. As ever, though, he makes a valuable contribution to the debate. He identified the important issue: there is no overarching or underpinning right. But should there be? That is the precise debate that we need and want to have. And we have begun it in Parliament today—again, I thank him for bringing it forward.

I want to make three brief points, the first of which is about the role of responsibilities. We have heard a lot about that, and as always whenever a Minister mentions responsibilities in this context, there is a sharp intake of breath among all those who believe in the importance of human rights. It is seen as code for abandoning the key principles that underpin human rights—such concerns have been expressed today, particularly by the hon. Member for Cambridge—but it is nothing of the sort.

Many decent, tolerant people whose lives are made wretched by crime and antisocial behaviour are concerned that human rights legislation means that those making their lives a misery are immune from the consequences. All hon. Members have probably heard similar concerns at meetings in their constituencies. As we know, such perceptions are given currency by irresponsible and inaccurate reporting in sections of the media. It needs to be said that, as all hon. Members in the Chamber know, those perceptions are incorrect. However, that is no reason to be complacent, and we would be rash to hope that such misperceptions will not take root. They can and they do. We need to—and we do—work constantly to expose such myths.

But should the answer to that acknowledged misperception be to create a situation in which rights become contingent, other than through the criminal law, on behaving responsibly?

I agree that that is not the answer, but that is not what we are arguing for. I think that the right hon. Gentleman was kind enough to quote me stating that rights are not contingent. However, I want to develop this important point. It is right that the relationship between rights and responsibilities is scrutinised. It is important to get that right. It is a subtle and sophisticated relationship and so subject to misinterpretation.

I accept that the Government must play a central role in explaining better the intellectual framework of the legislation and how concepts of proportionality and balance are inherent in the Human Rights Act and human rights generally. Human rights legislation does not protect wrongdoers from the law. It gives them the right to a fair trial, which we all accept is fundamentally important in this country, but it does not prevent them from going to jail or being punished in other ways. We need to make the case that rights are indeed accompanied by responsibilities. To repeat the point, rights are not contingent on responsibilities—they are accompanied by them and balanced by them.

As the Green Paper, “Rights and Responsibilities: developing our constitutional framework” sets out—again, I commend the document to all hon. Members—the concept of the responsibilities that we owe one another has a long, distinguished intellectual history and is inherent in all instruments of human rights. I shall quote briefly from the Green Paper:

“The idea of the link between rights and responsibilities is not new, either in theory or in practice. In our daily lives we owe responsibilities to the state and to each other. Some of these are moral, and are rightly not a matter of legal duty or sanction; many others already exist in our legal system, in statute, in common law and through convention.”

The challenge is how better to remind people of the importance of individual responsibilities and give them greater prominence. Individual rights must be promoted and protected without losing sight of the essential contribution of responsibilities to collective harmony and prosperity.

The difficulty is that the Minister does not specify what the link is. He keeps talking about a link, but he has said that it is not a legal link and that there is no conditionality. From his argument, it seems that the only link is some sort of public relations or propaganda link and that somehow talking about responsibilities will change the attitudes of people who do not like the Human Rights Act. I cannot see how that works.

The hon. Gentleman is a very distinguished lawyer who knows how the Human Rights Act works. He knows that concepts of proportionality are inherent in that Act and in all human rights instruments. He also knows that the concepts of balance are inherent in such measures. How those concepts should be characterised—whether they are identical or whether they overlap or overlay the idea of responsibility—is a matter for debate.

If the hon. Gentleman gives me a chance to develop the argument, he can then tell me why he thinks that I am wrong. In the meantime, I ask him to consider these points. At this stage, we are launching a debate. We are not prescribing an outcome or setting out what the Bill should say; we are inviting contributions from the public at large—certainly from the House—about what we should do about the matter. These are complex and difficult questions for all the reasons that I have given, and, in different ways, every contributor to the debate has also said that. We need to have a discussion and a debate about the matter. If he thinks that we should do things differently, he should say so—but not right at this moment. I would like to develop my argument a little further and then I will happily to give way to him.

The solutions can come in a whole range of forms—they could be ethical, political or legal. They may or may not include prescriptions about the relationship between rights and responsibilities. All those wise men and women who were responsible for drafting the great human rights instruments have no such fear of discussing the role of responsibilities, and they have woven them through their drafting. I shall quote briefly from some of the human rights instruments to show that such an opinion has not been invented. I quote from one of the previous contributions to a new Labour debate. Article 17 of the European convention on human rights states:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

Article 29 of the universal declaration of human rights states:

“Everyone has duties to the community in which alone the free and fully development of his personality is possible.”

The preamble to the American declaration of the rights and duties of man states:

“The fulfilment of duty by each individual is a prerequisite to the rights of all.”

I could quote at great length on the matter. The point is clear: this is a proper subject for debate, and that is what we are asking for. We are asking for contributions from the public and hon. Members about what the solutions to this issue should be.

The second area of debate that we should engage on is whether the Human Rights Act is sufficient or whether we need to go further. Should we be complacent about our rights? Since the last great reforms of the suffrage, the development of the welfare state in the 20th century and the formulation of human rights in the wake of the atrocities of totalitarian regimes in the past century, there has not been an overwhelming demand for new rights in a constitutionalised way—rather, the debate has been about how best to entrench the rights and freedoms that we have and to render them more accessible.

After all, the Human Rights Act 1998 was not about creating new rights, but about bringing them home. It was about giving British people a chance to enforce those rights in a British court, rather than in Strasbourg. We have not discussed the advantages of that at length, but it brings considerable advantages for the citizen because, as hon. Members know, it gives British courts a greater margin of appreciation than they would otherwise have.

Do we need to go further to entrench the rights that we have? The admirable Joint Committee on Human Rights report suggests that we do. The Government have indicated openly that we are willing to take this question to the public. Nothing is immutable. Our rights and freedoms are the fruit of specific historical circumstances, as the hon. Member for Enfield, Southgate suggested. The times we are living through are sufficient evidence of that.

Finally, we must discuss how any new constitutional expression of our rights and responsibilities should be given effect. There are serious arguments for and against making them directly judiciable by giving people direct cause of action in the courts. It is politically illiterate to argue that unless all the provisions of a new Bill are directly judiciable, it would be worthless. The Select Committee did a very good job of teasing out these arguments and have come forward with a solution that will provide an important contribution to this debate.

I repeat that things do not necessarily have to be enforceable in law to have legal effect. The hon. Member for Enfield, Southgate did me the courtesy of quoting from an article that I wrote, although not wholly in approving terms. None the less, I ask him to consider this point: words really do matter, but they are not always connected to meaning. Language can obfuscate, confuse and deceive, but it can also crystallise understanding and inspire us. The courts are not the only source of action and progress in our society. How impoverished would our political discourse be if the only way that our politics could have any effect on society was through laws?

These are not easy questions, but profoundly difficult ones. I welcome the range of views that have been expressed today. As a society, we can move forward in this area only if we can establish a broad consensus. That is what this debate should be about and I believe that it has been about that today. I welcome that and congratulate my hon. Friend the Member for Hendon for giving us the opportunity to have this discussion.

I do not want to delay hon. Members for too long, but I would like to respond to a few points. The first is the issue of rights and responsibilities. I tend to agree with the Liberal Democrat party on that, rather than the Minister. Unless there is conditionality, the responsibilities do not amount to a great deal. We all accept that conditionality cannot be used in these circumstances. As I said when introducing the debate, I have no problem with a general aspirational preamble along the lines of the historic documents read out by the Minister. However, when we start to talk about the duty to send one’s children to school, we get into the realm of the ridiculous, which could undermine the whole concept and make it a laughing stock.

I would like to answer the points raised by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) on social and economic rights. I am still not sure whether he understands what we are arguing for. Incidentally, the housing case from South Africa that I could not remember the name of was Grootboom. Our draft Bill puts forward three suggestions on housing. The first is clearly aspirational:

“Everyone has the right to adequate accommodation appropriate to their needs.”

That would have relevance only in relation to progressive realisation. We would expect the Government to report to Parliament about the progress towards achieving that goal annually. We suggest two other rights:

“Everyone is entitled to be secure in the occupancy of their home.”


“No one may be evicted from their home without an order of a court.”

Those are not progressive realisation rights, but interpretive rights. When courts come to interpret common law or statute law, it would be underpinned by the need to give effect to such rights.

We suggest two rights on health care. The first states:

“Everyone has the right to have access to appropriate health care services, free at the point of use and within a reasonable time.”

That is another aspirational right that would rely on progressive realisation, with the Government reporting annually. The second is:

“No one may be refused appropriate emergency medical treatment.”

That is a clear hard right that could be subject to judicial review if it were refused, but it is not directly enforceable in itself. We accept that we cannot make such matters fully judiciable, but we can make them interpretive, and that is how we will underpin those general rights. As for my right hon. Friend’s point about housing, we have particular rights, ideas and aspirations that feed into that. However, we have to interpret what some of those things mean. For example, if there was a judicial review about whether somebody was entitled to a particular benefit or scheme that the Government have announced, then that would be underpinned by the right of the court to interpret those schemes in accordance with the basic rights set out in the Bill of Rights. That is why we have to square the circle and provide the constitutional underpinning.

There was a suggestion about old and new rights. The hon. Member for Cambridge asked whether this was the right time for such a Bill. I would say that it is the right time. The time to bring in such legislation is when people feel insecure in themselves, in their homes and in their economic position. That is when the issues on social and economic rights come into their own. Like me, I am sure that the hon. Gentleman holds surgeries in which constituents say, “My rights have been infringed.” Those are the social and economic rights about which we have been talking. They are the underpinning that, at present, does not exist. We should look at that matter now because we need to build on the debate about the Human Rights Act 1998. The Government failed in one respect of the Act. It was not that it was the wrong thing to do, but that they did not go out to sell it from the start. Ever since then, we have been trying to play catch-up, whether it be through myth busting, rapid rebuttal teams, worthy speeches that can be ambivalent or through being undermined by some Ministers who do not understand what we are talking about. I am talking about not the present Ministers but past Home Secretaries, who have said some rather peculiar things that feed popular misconceptions.

How do we move the debate forward? We must make the whole concept of human rights more relevant to people’s daily lives. We have tried to do that by some of the work that we have done in the Committee on the right to health care in care homes, or on adults with learning disabilities. We have shown how the Human Rights Act 1998 can be used to improve services. The other way of doing it is looking at rights that mean something to people in their everyday lives, which are, of course, the social and economic rights.

I do not disagree with anything the hon. Gentleman has said. The danger is in not what he is saying, but what other people might do given the opportunity to tear into the Human Rights Act. He has one trajectory that I might approve of, but others would use that opportunity for different sorts of change of which he and I would not approve.

I find that a rather hard argument to follow. The hon. Gentleman calls it “the Human Rights Act in disguise.” Let us remember that the press have used the Human Rights Act to their advantage on many occasions, such as in freedom of the press issues, which come from the right of freedom of expression. So, there are double standards by the media, and there always will be. If we talk about things that are relevant to people’s everyday lives, that will chime with the public if not with some of the right-wing tabloid press.

The hon. Member for Cambridge talked about the mixing of the universal human rights and the civil rights of the citizen. I agree that there is a bit of mixing up. Inevitably, there will be blurring around the edges, but that is something that we draw out and identify in the report. There will be some rights—such as the right to vote—that are those of the citizen, and there will others that are universal rights. However, that does not mean that they do not all belong in the same document, because they do.

Then there is the question of whether it is the constitution or the Bill of Rights and whether it is the same document or a different document. Again, they are different issues, but there is a degree of overlapping. For example, one of the key themes of the Human Rights Act 1998 is the way in which it operates within the constitutional settlement through, for example, the declarations of incompatibility. That is a very neat squaring of the circle, which we build on in our report in relation to the Bill of Rights. We cannot have one without the other, and we have to show how it fits into the overall jigsaw. That is where that melds together.

I am grateful to my right hon. Friend’s constructive response to the debate. I do not think that I need to comment particularly on anything that he has said other than what I have said already. However, I would say that the EHRC was a very welcome development, and that if had been in place at the time of the Human Rights Act, we would not be in the mess that we are in in relation to selling it to the public.

I sense that my hon. Friend is about to sit down and I just wanted to make an apology. He raised a couple of questions in his debate, which, because of the long delay, I did not answer. I felt that I should just put on the record two things on the record. First, he asked when our consultation paper on the scope of the Human Rights Act 1998 will be published. The answer to that is “soon”. Secondly, I should put on the record, which I omitted to do earlier—I offer my apologies for that—the degree of engagement with the devolved Administrations. My hon. Friend has many, many qualities, so I was surprised that he took at face value a representation made to him by a Minister from the SNP that there had not been proper engagement between the UK Government and the Scottish Executive on the issue.

May I give him the facts? Officials visited Cardiff, Belfast and Edinburgh in September and October 2008—well before the Green Paper was published—to talk to their counterparts in the devolved Administrations. There are still regular contacts to update devolved Administration officials on the progress. The Justice Secretary has also spoken and written to the First and Deputy First Ministers in September last year. On Northern Ireland, twice I have met Monica McWilliams, who, as my hon. Friend knows, is the chair of the Northern Ireland Human Rights Commission. So there have been extensive contacts from the moment we were in a position to have a substantive dialogue with the devolved Administrations, and we will carry on.

I have two responses to the Minister’s comments. First, he could be a little clearer on what “soon” means—in particular, hopefully before the summer recess. As far as the autumn of 2008 is concerned, that was after we published our report, drawing attention to the fact that there had been no engagement with the Scottish Executive. That was what they told us when we saw them in preparation of our report earlier in 2008. I am pleased that my right hon. Friend has taken on our recommendations from the report, which was published in the summer of 2008, through to what he has done that autumn.

Just to repeat the point that I made earlier, we consulted as soon as there was something to consult about. Until there was something to consult about, even my hon. Friend would not expect us to be consulting.

There was a previous constitutional paper published the year before, which sparked off our debate. I think we have made our points about that.

The last thing I would like to say before I sit down is in response to the hon. Member for Enfield, Southgate (Mr. Burrowes). He is a nice chap, very intelligent, and I get on very well with him, but he must have been embarrassed by the intellectually incoherent position that he has had to advance on behalf of his party.

I still find it difficult to understand what the Conservatives are saying about the Strasbourg Court. Are they saying, for example, that they do not want to be bound by the decisions that directly affect the UK, in which case we would have to withdraw from the convention? Are they saying that we do not want to be bound by decisions against other countries, in which case it would only be a matter a time before we are caught by them anyway, and would have to change our law? The best example of that—it is one of the hard cases—is to do with the removal of undesirable terror suspects, which has been a long-standing issue before the European Court of Human Rights. I think it was a Dutch case where we were interveners. Or are they simply saying, “We do not want anything to do with the Strasbourg Court at all”, in which case, we would be out of the Council of Europe arrangements in relation to that matter?

That is a completely incoherent position. Either we subscribe to the European convention on human rights and its methods of enforcement, which ultimately is the Strasbourg Court, or we do not. We should not think that fiddling around with the Human Rights Act 1998, which he said has exacerbated the problem, is going to help—exactly the opposite. If they fiddle around with substantive parts of the 1998 Act, which is the convention, which in turn is incorporated in the Act through its schedules, effectively, what they are saying is that we are resiling from the terms of the convention itself. If we do that, either we leave the Council of Europe, or we get turned over by the Strasbourg Court anyway, because the convention would still apply to us, whether or not it is incorporated in the 1998 Act. That position, unfortunately, simply does not stand.

The hon. Member for Enfield, Southgate says that the Conservative Bill of Rights would say how the ECHR applies to UK citizens. Frankly, that would not work unless we leave the convention. They can fiddle around with it as much as they like, but it would not make any difference as a substantive law. All it would mean is that our courts would not be able to interpret the convention. It would not stop Strasbourg interpreting the convention. It may well be that the margin of appreciation that we now have through the UK courts would be lost when the cases end up, inevitably, in Strasbourg. The Conservatives have nothing to say about the detail of what they would put in place of the Human Rights Act, other than a general assertion that they would fiddle with the wording. There is no detail about what wording they would like changed. That point was put by my right hon. Friend the Minister in an intervention to the Conservative Front Bench. He asked what particular wording of the Human Rights Act they would like to change and the hon. Member for Enfield, Southgate had no answer. Unless and until the Conservative party has an answer, we cannot make much sense of its incoherent position.

The hon. Member for Enfield, Southgate asked whether we have brought human rights home with the Human Rights Act. Bringing it home is the right way to put it, because it was drafted, in large part, by a British lawyer, David Maxwell Fyfe QC, on the inspiration of Winston Churchill no less, both of whom, I understand, were Conservatives. When we brought those rights home under the Human Rights Act, we enabled our courts to enforce what are effectively British values and traditions, which have been adopted by Europe. We are not taking from Europe a dictatorship of the Council of Europe and certainly not the European Union in that respect. They have taken our ideas. We have simply repatriated those ideas, as they should have been in the first place, for enforcement through our own courts.

Question put and agreed to.

Sitting adjourned.