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Human Rights Act 1998 (Repeal)

Volume 554: debated on Tuesday 4 December 2012

Motion for leave to bring in a Bill (Standing Order No. 23)

I beg to move,

That leave be given to bring in a Bill to repeal the Human Rights Act 1998; and for connected purposes.

The Human Rights Act 1998 gives effect in UK law to the rights and freedoms under the European convention on human rights and makes available in UK courts a remedy for breach of a convention right. Under section 2 of the Act, a court or tribunal in the UK determining a question that has arisen in connection with a convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. Under section 3, primary and subordinate legislation must, so far as it is possible to do so, be read and given effect in a way that is compatible with the convention rights. This applies to any primary and subordinate legislation whenever it was enacted.

Section 3 also states that this provision does not affect the validity of any incompatible legislation, although it is also true under section 6 that it is unlawful for a public authority to act in a way that is incompatible with a convention right. As we have seen, the view of successive Governments over the years has been that when a UK law is found to be incompatible with the European convention, it is the UK law that gives way to secure compliance with the convention.

Indeed, the Human Rights Act conveniently supplies a fast-track procedure to facilitate this happening quickly. Under section 10, a Minister of the Crown may make such amendments to primary legislation as are considered necessary to enable the incompatibility to be removed by the simple expedient of making an order. In effect, because the accepted practice is that the United Kingdom observes its international obligations, a supranational court can impose its will against ours. In my view this is fundamentally undemocratic.

However, there is no point in belonging to a club if one is not prepared to obey its rules. The solution is therefore not to defy judgments of the Court, but rather to remove the power of the Court over us. The fundamental point is that one cannot alter the political nature of a decision by changing the location where the decision is made. Judges do not have access to a tablet of stone not available to the rest of us which enables them to discern what our people need better than we can possibly do as their elected, fallible, corrigible representatives. There is no set of values that are so universally agreed that we can appeal to them as a useful final arbiter. In the end they will always be shown up as either uselessly vague or controversially specific. Questions of major social policy, whether on abortion, capital punishment, the right to bear firearms or workers rights, should ultimately be decided by elected representatives and not by unelected judges.

Let us take the recent example of prisoner voting. The view of the Court is that, although the Council of Europe member states has a margin of appreciation in deciding how far prisoners should be enfranchised, a complete ban on voting was outside that margin. The fact that we do not have a blanket ban on prisoners voting does not seem to have troubled the Court, even though the Attorney-General went out of his way to point this out in person when he appeared before the Court. There are several categories of prisoner who have the vote now—prisoners who are on remand, prisoners who are sentenced but not convicted, and prisoners who are in prison for defaulting on fines. But the Court is in effect saying, “Sorry, we don’t like your arrangements. We prefer ours.”

Although I personally object to the idea of prisoners having the vote, my much more fundamental objection is to the idea that a court sitting overseas, composed of judges from among other countries Latvia, Liechtenstein and Azerbaijan, however fine they may be as people, should have more say over what laws should apply in the United Kingdom than our constituents do through their elected Members of Parliament. Some may say that that is what the UK signed up to, to which I would only reply, “Precisely.” That is why we need to repeal the Human Rights Act and resile from the convention.

The idea that that would make us a pariah state is simply nonsense. For example, Canada is a member of the Organisation of American States, the equivalent of the Council of Europe for the Americas, but has not signed up to the jurisdiction of the Inter-American Court, without becoming in any sense a pariah state.

Some might say that it would raise all kinds of other legal problems, that everything from the United Nations convention against torture to the Good Friday agreement is predicated upon our membership of the European convention so that it would be impossibly difficult to change things. I do not find that persuasive. It was not that many years ago that people said that a Bill of Rights of any kind would be impossible in the United Kingdom because of parliamentary sovereignty. The truth is that if one wants to do something badly enough, one can find a way to do it, and to do it legally—that is precisely what one keeps clever lawyers for. Goodness, if one wants something badly enough, it turns out one can even go to war in defiance of both world opinion and international law and find a lawyer to say that it is perfectly lawful.

I particularly commend the second Kingsland memorial lecture, given by my right hon. Friend the Member for Arundel and South Downs (Nick Herbert), who is a sponsor of the Bill, in which he set out the argument at much greater length. His central point, with which I agree, is that on prisoner voting, as on so much else, we should not defy the ECHR, but resile from it altogether.

I will end by reflecting on the comment of Judge Learned Hand:

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it… What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few”.

In my view, our best check is not unelected judges, but the spirit of liberty in the hearts of the elected representatives in this House. I commend the Bill to the House.

I am most grateful for the opportunity to respond to the motion. The Human Rights Act is a statute that rarely receives a good word and is subject to more than its fair share of the bad, yet it is one of the most important pieces of legislation passed by the previous Labour Government. Here I pay tribute to my right hon. Friend the Member for Blackburn (Mr Straw), who was instrumental in the formulation and implementation of the policy and remains one of the most coherent voices on the role and, crucially, limitations of the Act. I am also incredibly grateful to him for his advice in preparing for this speech; he has been generous with his time and counsel.

Despite what some newspapers and, it appears, some Government Members claim, the Human Rights Act is not some badly drafted and rushed piece of legislation, a Dangerous Dogs Act for civil liberties. Rather, the opposite is true. The legislation benefited from three years of development in the mid-’90s while Labour was in opposition, on a cross-party basis and with the assistance of the Liberal Democrats. It was further improved by careful consideration in this Chamber and the other place.

The Act is noticeable as a piece of legislation by the very fact that, although my right hon. Friend the Member for Blackburn and Lord Irvine are rightly known as its midwives, its DNA draws from a far wider and deeper genetic pool. That is an incredible strength of the Act and undoubtedly one of the reasons why it has not been seriously challenged in the 14 years since it received Royal Assent.

It is interesting that in the eight years since Michael Howard first declared that the Tories wanted to repeal the Act and replace it with a British Bill of Rights, not one significant step of progress has been made by the Conservative party in developing a coherent alternative. That is testament to those parliamentary draftsmen working at the end of the last century.

The Act itself can be seen as a key plank of the constitutional framework built by the Labour Government alongside devolution. It sets out in clear and unambiguous language those human rights that our nation holds to be dear and that we rightly regard as vital in any modern free society: the right to life; the prohibition of torture, slavery and forced labour; the right to liberty, security and a fair trial; no punishment without law; the right to respect for family and private life; freedom of thought, conscience and religion; freedom of speech; the right to marry; the freedom of assembly and association; and the prohibition of discrimination.

The Act also does something profoundly important for our democratic system—it writes into law the supremacy of Parliament over the courts and the Executive. It places limitations on how far the Executive can interpret their powers without the consent of Parliament. In essence, it requires the Executive to seek and obtain the agreement of Parliament before they may implement new policies. It is therefore no surprise that many Secretaries of State on both sides of the House have expressed irritation at the Act or bridled at the limitations imposed on their authority. Equally, though, the Act is clear that it does not prevent a Secretary of State from ultimately achieving their goal, provided that the Government are prepared to seek parliamentary approval through legislation; it merely prevents a Government from unilaterally setting a new policy without the endorsement of the people through their elected representatives or without due regard for the law. It is bizarre that in our modern democratic system some politicians, particularly one as well regarded as the hon. Member for South Norfolk (Mr Bacon), would seriously propose to repeal this safeguard.

Moreover, the Act places limitations on the power of the courts. My right hon. Friend the Member for Blackburn was careful in his drafting so that it merely requires that the legislature should be “mindful of”, not “bound by”, court decisions. The Act has provision for Parliament to set aside court rulings if it sees fit. For example, in 2005 British courts, through the Law Lords, ruled that it was inhumane and degrading to deny some asylum seekers the right to earn a wage to support themselves and simultaneously deny them the right to receive any benefits from the state—in effect, to place them in destitution without any support apart from charities and churches. As my right hon. Friend has said, this was one of those decisions of our courts which could be classed as inconvenient to the Executive, and I recall that it caused quite a stir at the time. However, if we, as the then Executive, had decided to ask Parliament to pass primary legislation that said in plain, unambiguous terms that certain categories of asylum seeker were indeed to be rendered destitute, and Parliament had agreed, that would have been it—the end of the matter—as far as the British courts were concerned.

Some argue, legitimately, that Parliament should not seek to overturn court decisions. Others argue, erroneously, that in the United States the Supreme Court is indeed supreme and the defender of its constitution. However, the US Congress, with the support of states and the White House, may overturn the Supreme Court through constitutional amendments, as has already happened 27 times in that nation’s history.

On prisoner voting, which the hon. Member for South Norfolk mentioned, the Human Rights Act is perfectly compatible with the principled decision taken by this House. The House voted—and voted overwhelmingly—to remove from convicted prisoners the right to vote in elections, and thus they have no recourse under the Act. Our membership of the European convention on human rights has forced this issue to the European courts. Indeed, another strength of the Act is that it has provided a mechanism whereby British courts may seek to influence the working of the European courts.

As we have seen again today, one of the greatest challenges that the Act must constantly overcome is urban myths and misconceptions. No one could forget the powerful speech delivered by the current Home Secretary to last year’s Conservative party conference when she said:

“We all know the stories about the Human Rights Act...about the illegal immigrant who cannot be deported because, and I am not making this up, he had a pet cat.”

Unfortunately for the Home Secretary, whoever wrote her speech had in fact made it up. In the case of the cat, it appears that the Home Office lost a reconsideration case after the initial verdict was successfully appealed because it failed to meet the requirements set out in the UK Border Agency guidelines, not because of the Human Rights Act. So the hon. Gentleman might have been better served by introducing a human rights education Bill which would involve mandatory attendance by the Cabinet.

In the final analysis, the single strongest argument against repeal is that this is the decade in which we hope to welcome more countries, particularly our neighbours to the east of Europe and Asia, and to the south of Europe, into the family of democratic, civilised nations. To turn our back on, tear up and cast aside the Act that enshrines in law the fundamental human rights that we ask others to respect would remove the legitimacy of our position. How can we ask developing countries—the new democracies—to respect human rights when we seek to remove them from our statute book? I urge the House to reject this Bill.

Question put (Standing Order No. 23).