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Human Rights

Volume 690: debated on Thursday 22 March 2007

rose to call attention to the protection of human rights and fundamental freedoms in the United Kingdom; and to move for Papers.

The noble Lord said: My Lords, last week we celebrated International Women’s Day and the promotion of equality for women. Yesterday we approved a law to combat discrimination based on sexual orientation. We are about to mark the bicentenary of the abolition of the infamous trade in slaves, but there are many other forms of modern slavery. As was pointed out in Monday’s International Herald Tribune, in an article by the executive director of the UN Office on Drugs and Crime, Antonio Maria Costa,

“we have the moral duty and legal obligation to prevent and suppress its modern equivalents”.

The Forced Marriage (Civil Protection) Bill seeks to tackle a serious abuse of human rights, often amounting to sexual slavery. Happily the noble Baroness, Lady Ashton of Upholland, has been given lead responsibility for the Bill in this House, and I am delighted that she will reply to this debate, the subject matter of which is wide-ranging and topical.

A democratic society governed by the rule of law needs constantly to nurture a culture of respect for human rights. It must secure in law the effective protection of human rights against arbitrary and unnecessary restriction or abuses of power by public authorities, or by private bodies exercising public powers. It needs to recognise that civil and political rights and economic and social rights are interdependent, and that all three branches of government must be actively engaged in their advancement. These are statements of the obvious, but there are few countries where they are a practical reality. Nor is there room for complacency in this country. It is all too easy when the public are threatened by the scourge of terrorism or serious crime and disorder to treat respect for human rights as a disposable luxury, to pander to populist pressure from reactionary media in the pursuit of political power, and to surrender the rights of vulnerable and unpopular minorities.

The Human Rights Act has strong Liberal Democrat support. Its purpose is to nurture a culture of respect for human rights, and to enable our own courts to give effective remedies for breaches of the convention rights by British public authorities. Alone in Europe, we have no written constitutional Bill of Rights. The Human Rights Act is the next best method of constitutional protection. It reconciles effective British judicial remedies for human rights violations with the doctrine of parliamentary supremacy. The courts are empowered to declare legislation to be incompatible with the convention rights, but not to strike it down, leaving it to government and Parliament to pass remedial legislation, or, if they will not, to defend proceedings before the European Court of Human Rights. The Act is based on the assumption that the executive and legislative branches as well as the judiciary share a common commitment to representative democracy, respect for human rights and government under the rule of law. It could not work without that shared commitment. It requires government, public authorities and public officials to justify policies, practices and decisions which have an adverse impact on human rights on the basis of evidence and not mere assertion. In other words, it promotes a culture of justification.

The Act was not welcome to Euro-sceptic Conservatives whose political memory does not extend to the aftermath of the last world war, when Winston Churchill, Harold Macmillan, Maxwell Fyfe and other leading Conservatives led the European movement and championed the need for the European convention. We hope that in this debate Her Majesty’s Opposition—represented on this occasion by the noble Lord, Lord Kingsland, who cannot be regarded in any way as a Euro-sceptic—will recognise the great benefits that the Human Rights Act has brought.

One benefit is the relief given to the hugely overburdened European Court of Human Rights. The Strasbourg court is choking on 80,000 or more pending cases, with some 250,000 cases by 2010. The case load is increasing exponentially. Without the Human Rights Act, British citizens would have had to rely upon recourse to the European Court, with ever increasing delays in obtaining a final judgment. Another benefit is increased British legal influence on the decisions of the European Court of Human Rights. Judgments of our courts closely examine the convention case law, and British judgments are now given great weight by the European judges because they engage in a dialogue based on common principles and a common human rights discourse.

The Human Rights Act is no ordinary law. It is a constitutional measure of greater practical significance than the measures we rightly cherish as part of our constitutional heritage—the Bill of Rights and Claim of Right, the habeas corpus Acts, and Magna Carta itself. Its values are expressed in the Universal Declaration of Human Rights and its progeny, including the UN international covenants and the European convention. The values are universal and are deep-rooted in British political and legal tradition. They are our birthright and part of our common humanity and human dignity.

That leads me to correct a mistake in Hansard, in order to reassure the right reverend Prelate the Bishop of Chelmsford, who is to take part in this debate. In the report of last night’s debate, there is a Freudian mistake, not I think by me, but by the unfortunate Hansard reporter who no doubt listened to my poor enunciation. It is quite an important mistake. I have been reported as saying that,

“the principles of human rights are universal, that they derive not only from the secular Enlightenment but from all the great religious divisions”—

that last word should be “traditions”—

“including the Judaeo-Christian tradition, and that they all recognise the need for a fair balance between competing rights and freedoms”. —[Official Report, 21/3/07; col. 1323.]

Maybe the Hansard writer has a sense of humour.

The Act exerts a magnetic force over the whole of our legal system. Our courts respect its force and do not permit human rights protection to be weakened by arguments based on political expediency or administrative convenience. The courts strike a fair balance between the rights of one individual and another, as well as the interests of the community. They avoid the trap of legalism or of a narrowly literal interpretation. They are to be commended for that and for protecting legislative and executive powers against judicial usurpation. There is no risk in this country of a Government of unelected judges. They have approached the Strasbourg jurisprudence through, rather than round, British law, weaving the convention rights into the fabric of the British system. That is vital if the process is to command public confidence. We must not alienate British public opinion by the way in which we deal with these matters.

The Act has also increased the parliamentary accountability of the Executive with the aid of the Joint Committee on Human Rights, on which I have been privileged to serve since it was first established. Ministers and civil servants are much more aware of their human rights responsibilities, and Parliament is much better informed when debating proposed measures, as we saw in two debates only yesterday. If noble Lords read the debate on the Justice and Security (Northern Ireland) Bill, they will see the dialogue that took place with the noble Lord, Lord Rooker. There was also the debate on the sexual orientation regulations. There is no doubt that the JCHR and its input are now an established part of our procedures and have altered the terms of the relationship between the Government and Parliament.

The approach of the Human Rights Act is holistic, by which I mean that all three branches of government are involved, rather than only the judiciary. The JCHR takes account of all the international human rights instruments by which the UK is bound. The courts treat its reports as relevant—but no more than that—when deciding issues of convention compatibility. It gives them an important context.

The Government’s review of the implementation of the Human Rights Act has dispelled myths and misconceptions about the Act. The Act has had a beneficial impact on UK law and government policy. It has not damaged the Government’s ability to fight crime. It has been misapplied on occasions, because of deficiencies in training and guidance, particularly to public authorities and services, for which the Act itself is not to blame. The Government are to be commended for having made sure that almost £6 million was spent in training all our judiciary before the Act came into force. The Government have published welcome new guidance to enhance understanding of the Act. From October, the Commission for Equality and Human Rights will be in a position to carry on that work. We hope that the commission will give sufficient priority to human rights, in addition to its demanding equality brief.

The legitimacy of the Human Rights Act is under frequent and unfair attack by the tabloid press. The Sun ran a campaign last summer to,

“rip up the Human Rights Act”.

The right honourable David Cameron has suggested that the Act is,

“practically an invitation for terrorists and would-be terrorists to come to Britain”,

and that it should be repealed and replaced with a Bill of Rights based on British traditions and balancing rights and security. While the stronger constitutional protection of human rights through a Bill of Rights would be welcome, repealing the Act and replacing it with a Bill of Rights is, in the words of the right honourable Kenneth Clarke, chair of the Conservatives’ Democracy Task Force, “xenophobic and legal nonsense”. The Conservative Party has now set up a Bill of Rights commission. It consists of seven distinguished lawyers, two of them Members of this House, all barristers, six of them men, with the only woman as secretary to the committee. I wish them well, but I suggest that they might broaden their membership to include a substantial lay and minority element. Much as I respect my fellow barristers, the subject is too important to be left even to barristers, however distinguished.

There is a powerful case for developing a British Bill of Rights to strengthen the protection given by the Human Rights Act. It would need to reflect British political and legal values, drawing on not only the convention but the other international human rights instruments and the constitutional rights recently developed by the courts from the common law. It would contribute to our public philosophy and public education on the meaning of British citizenship, providing a code of values for each new generation. The process of obtaining genuine popular consent through public consultation across the country would be as important as the outcome of the process.

Next week, the British section of the International Commission of Jurists will launch a discussion paper, to which I and others from this House have contributed, which seeks answers to key questions about whether and how to achieve a Bill of Rights for Britain.

Finally, two years ago, when the Government accepted the right of individual petition to the UN Committee for the Elimination of Discrimination against Women, they undertook to review whether to accept the right of individual petition for British cases under the other UN human rights treaties, such as the International Covenant on Civil and Political Rights, and the Human Rights Committee. The review was due to begin last week, and I believe it did so. At present, we are out of step with every other member state of the EU, the great majority of members of the Council of Europe, and Commonwealth countries such as Australia, Canada, New Zealand and South Africa.

I very much hope that the Minister will respond positively to what promises to be a fascinating debate, even though I realise that the most she can do today is to tell us, with her characteristic charm, that the Government are looking into the matter and do not necessarily have closed minds. I beg to move for Papers.

My Lords, I congratulate the noble Lord, Lord Lester, on this debate and on all he has done in the field of human rights in this country and in Europe.

Equality is perhaps the most important of human rights, apart from the right to life itself, because without it the other rights cannot universally apply. The Labour Government’s great building blocks of the sex and race laws in the 1970s, of which the noble Lord, Lord Lester, was one of the chief architects, eventually became so accepted that when I used to negotiate the UK position in Brussels and the United Nations, successive British Governments upheld them with as much pride as did the originators. They are becoming part of our way of life and part of our idea of fair play, and the same will happen with Labour’s reforms on sexual orientation and ageism, if we hold fast.

The latest achievement in this progress is the Human Rights Act, and I support everything that the noble Lord, Lord Lester, said about it. But the Act has not become part of the national culture fully enough yet. It is very surprising to me that it has not been everywhere understood as the transfer into legislative principle of respect for human dignity, which we all value, as the means of protecting the vulnerable, like saving old people from being sacrificed in hospitals and abused in residential care, or obtaining entitlements for our army of unpaid carers, as the tool for balancing conflicts of rights, which are inevitable in a complex society, and as the basis for uniting diverse cultures into communities. The splendid Act could perhaps have one or two add-ons, but emphatically it would not be right to review it.

So the tabloid press has it completely wrong when it caricatures the Human Rights Act as privileging prisoners or merely occupying lawyers; and that minority of politicians who attack the Human Rights Act is ignorant of the range of practical work it has inspired. I speak here as an advisory board member of what the British Institute of Human Rights does in supporting and educating staff in the public services like NHS trusts in how respect for the citizens they serve is really achieved, and in providing an ethical framework to help our hard-pressed social services with difficult problems. This training has been widely welcomed by service providers. Indeed, it is complementary to some of the concerns voiced in the debate initiated by the noble Baroness, Lady Walmsley, earlier today.

The creation of the Commission for Equality and Human Rights is the second great human rights achievement of this Government. I was one of those on the Joint Committee on Human Rights who was convinced by the evidence that this was what would make the Human Rights Act a reality. Every time an official pushes someone around for administrative convenience, every time British implementation of the many human rights treaties we have so creditably helped to draft and have signed up to is found wanting, there will be work for the commission to do in helping to create a better culture. And of course, at the bicentenary of the abolition of slavery, we do not forget the race prejudice which still disfigures our democracy. With so many commissioners of proven worth, Trevor Phillips as its chair, my noble friend Lady Prosser as his deputy, I think we shall see welcome changes.

I mention four of the areas where I hope for a change in culture. First, although the reforms following from Every Child Matters are significant, we still do not respect children enough. I declare an interest as a trustee of UNICEF UK. Although the rights of the child are paramount in law, we except child asylum seekers and children in custody from that protection. That affects a minority of children, although among the most vulnerable. But all children are disadvantaged by their lack of equal protection with adults against assault, which is where I part company with the noble Lord, Lord Lester.

Secondly, I became aware, as a member of the Tavistock and Portman NHS Trust, of the stigma and discrimination that mental health patients still suffer. We need to work on that.

Thirdly, I think we have got it wrong about boys. When I was responsible for gender discrimination in the then Employment Department, statistics showed an alarming picture. In health, from birth, in educational achievements, in crime and violence and in alcohol abuse, boys seemed to have drawn the short straw. It has not really changed since, and for some groups it is worse than for others. It is paradoxical that once they grow up they manage on average to earn quite a lot more than women, but then if we want to erode prejudice against women, for that reason also we need to care differently for boys. I sometimes think that if these statistical tables had shown the same story about girls, there would have been a national outcry. But, as it was, with discrimination against girls having such a long historical past, I could never get a budget to work up programmes for boys.

Finally—I hope the commission has members who will appreciate this point—non-religious belief does not have the same status as faith in our society. I do not think I have ever heard an agnostic or an atheist contribute their ethical perspective on “Thought for the Day”, and I do not often see the British Humanist Association, for instance—I declare an interest as a vice-president—called in to advise the Government when the faith groups do so. I have nothing against faith and I especially warm to some of its practitioners. But I would like ethical views like mine—about 14 per cent of the population—to be taken into account rather than marginalised and discriminated against. I hope the Government will resist any move in any new European constitution to do otherwise.

All this, and more, is unfinished business in the exhilarating and essentially constructive field of human rights and fundamental freedoms. This Government have opened up the prospect of a truly rights-based society and I trust, with our new institutions, we can complete the job.

My Lords, I am very glad to follow the noble Baroness, Lady Whitaker. I do not have her longstanding experience in these matters any more than I have the legal expertise of the noble Lord, Lord Lester of Herne Hill, whom I warmly congratulate on initiating the debate. I am very glad to take part in it and I hope he is not too alarmed to know that I agree with quite a lot of what he said.

I enter the debate with some temerity, being neither a lawyer nor an expert. I suppose I am just a representative of the average Back-Bench Peer in the street. I take heart from what I have heard a noble friend of the noble Lord, Lord Lester of Herne Hill—the noble Lord, Lord Carlile of Berriew, who is not in his place—say in a debate earlier this month. On quite a technical issue, up popped the figure of my noble friend Lady Knight of Collingtree—she too is not in the Chamber—and, although the debate was technical, she got right to the heart of the matter. The noble Lord, Lord Carlile of Berriew, said it was a very good thing—I quote from memory but more or less exactly—that these issues were not left to barristers or to experts and that it was sometimes right to have an outside view. One of the most memorable things, among many, that the noble Lord, Lord Lester, said is that some issues are too important to be left to barristers. With respect, the issue of human rights is one of them. This afternoon, I model myself on my noble friend Lady Knight, which may surprise some noble Lords.

In doing so, I warn those Members of the House who are of a delicate disposition that there may be some criticism of the nature of current liberal thought in what I say. I mean not Liberal Democrat political thought but liberal thought in its general, metropolitan sense. There is even a risk of criticism of that conveniently self-canonising set of latter-day secular saints; the self-styled human rights lawyers. Of course, I do not refer, under any circumstance, to anyone in your Lordships' Chamber this afternoon.

It may well occur to some, who are legally trained or who have greater experience than I have, that something I say—I shall concentrate entirely on religious freedoms—may be covered by this article of the European Convention on Human Rights, or that clause of an Act of Parliament. If any Member pops up to ask, “Don’t you know that?”, I am quite likely to say, “No, I do not know that”. You will not get a very smart answer, if tempted.

Following something that the noble Baroness, Lady Whitaker, said about atheists, agnostics and people who are not of faith but who have deeply held ethical views, I am the first to admit that for hundreds, if not thousands of years, until very recently, the Christians in the UK were more or less top dogs, disapproving of atheists, agnostics and those who were not of faith—the secular. That is totally wrong. It is absolutely right that in this place we should consider the ethical stance and views of those who belong to the British Humanist Association or whatever. I would be very interested to hear people speak on “Thought for the Day”, even if the lurking Conservative in me says, “Bring back ‘Lift up Your Hearts’”. None the less, I would wish to hear that voice and I would respect it.

Things are the other way around now. These days, the seculars rule the roost and it seems to me, by some sort of reverse act of God, that sometimes the religiously inclined find or perceive themselves to be the new oppressed, rightly or wrongly—a minority needing the help of true liberals. Alas, in the sometimes suffocating atmosphere of contemporary liberalism, we see the beginnings of what I perceive as a form of soft secular totalitarianism. It is an approach that is absolutely tone deaf to nuance. It wishes, rather, to categorise, is often against any diversity that offends the contemporary fashionable secular creed of the day, and participates in rhetoric rather than reality.

The problem is that an increasing number of those of religious orientation, whether Christian or from any other faith group, feel that they are simply being denied the right to be themselves. That perception may be wrong, but it is there and should not be dismissed. This was neatly summed up in a letter that arrived on my desk out of the blue on 10 March from a correspondent in Glasgow whom I do not know. I have not sought her permission to use her name, but I will quote from her letter. For the avoidance of doubt and to help, as always, our hardworking Hansard writers, who have never made a mistake in my speeches—so the noble Lord, Lord Lester of Herne Hill, must have been joking in his speech—I begin:

“I believe that the right to religious freedom is a fundamental human right, which recognises the right of the human person to act in accordance with his/ her conscience. Moreover, I believe that religious bodies have a right to manifest their religious beliefs by establishing and maintaining institutions and services in accordance with those religious beliefs and values”.

I—a non-expert, non-human-rights lawyer—could not have written better.

Sometimes, the new and also sometimes militant secularism that seeks, little by little, to force a new morality on our churches, does not act in the most balanced way and needs the help of the liberal human rights lawyer. The role of the state is truly over-reached when it tramples on legitimate moral freedoms. There is an urgent need to revisit the protection of religious minorities in the United Kingdom. It may be that some noble Lords may say that the list of five areas I am about to give is covered by this or that bit of whatever Act or European Convention. However, we need to revisit them to ensure that those assertions are true.

First, we need to revisit the fact that religious freedom is a fundamental human right, grounded in the dignity of the individual, which recognises the right of woman or man to act in accordance with their conscience. Secondly, individuals should not be restrained in any way from acting in accordance with their religious beliefs. Thirdly, all religious bodies should have the right to demonstrate and teach their religious beliefs. I am talking here about all religious bodies. Further to my earlier remarks in response to the noble Baroness, Lady Whitaker, that should include those who have strong ethical feelings, but come from non-religious bodies. Fourthly, religious bodies should have the unfettered right to establish and maintain institutions and services that reflect their beliefs and values. That is, I know, a contentious point that has been much in noble Lords’ minds in recent days, but it is important to revisit it to make sure that the balance between secular and religious society is right. Fifthly, the Government do not have the right to inhibit acts of religion or to force people to act contrary to their conscience in a proper exercise of religious freedoms.

The time has come for those interested in human rights—even those of the most secular bent of mind—to revisit these issues in the interests of what are now an increasingly small minority in this country. Overweening and overbearing secularism should not be allowed to trump religious freedom on any occasion. I borrow from Cardinal Cormac Murphy-O’Connor, who said that we may be reaching a position in our present law-making where there is no space for the Christian conscience. True liberals, of all political beliefs and none, would surely wish to see that space provided and protected.

Mention of the Roman Catholic cardinal leads me to my last point and to declare my adherence to that faith. On the statute book of this country, we still have an absolutely disgraceful discrimination specifically aimed at Roman Catholics, and over which there is generally a deafening silence from the secularists and human rightists. There is not much campaigning from them on this issue here or in the other place. There are four such statutes, which I shall enumerate: the Coronation Oath Act 1668; the Act of Settlement 1701; the Act of Union 1707; the Accession Declaration Act 1910. These all have provisions preventing Roman Catholics or those married to Roman Catholics acceding to the Throne—some protection for the human rights and fundamental freedoms of Roman Catholics in those statues, which Parliament forces on the monarchy.

The Government should have acted on this long ago. I asked the noble and learned Lord the Lord Chancellor a Question a few weeks ago and in his Written Answer he told me:

“The Government currently have no plans to bring forward legislation on this issue”.—[Official Report, 5/3/07; col. WA 6.]

Will the Minister please tell the House this afternoon why not? Will she also reflect on the insulting discriminatory nature of this approach to the Roman Catholic community in the United Kingdom, perhaps pausing on the difficulties that this can cause Roman Catholics in public life?

I give one entirely theoretical, but entirely plausible, example of this. Suppose that the heir to the monarch of the day—I talk of any day—wishes to marry the Roman Catholic son or daughter of an equally Roman Catholic privy counsellor. The monarch of the day, under the force of the four statutes that I have enumerated, will be forced to say that, while continuing to welcome the advice and loyalty of the Roman Catholic privy counsellor parent, because of what we gratuitously left on the statute book, the new son-in-law or daughter-in-law is unwelcome as consort to the heir to the throne. So in our statute book, we enshrine Roman Catholics as second-class citizens. This is swept under the carpet, particularly by some in the liberal and legal human rights area. Parliament urgently needs to free the monarchy from this disgraceful discriminatory nonsense. Those most involved should recognise the burden that this places on Roman Catholic privy counsellors from time to time.

My second and last request to the Minister is that she undertakes to draw my remarks to the attention of the Lord President of the Council, who can expedite a meeting of privy counsellors to discuss these issues. I say only to all in this place who really care for human rights, that I hope that they will be as vigorous on this issue as they quite properly are on the issues of sex, age and racial discrimination.

My Lords, I welcome this debate and thank the noble Lord for introducing it. There is no one better qualified in this House to speak on these issues. With regard to the mistake in yesterday’s record, I assure him that we are quite good at division among ourselves, without his assistance in the record.

A bishop of the established church enters a debate on human rights and fundamental freedoms with due humility and caution. The modern liberal state arose from weariness with the European wars of religion. The attempt to protect fundamental freedoms and entrench human rights in law was not always met with sympathy from churches and religious leaders. It is not an edifying spectacle. As we have seen in this House this week, difficult issues arise in this field when liberty of conscience is set in tension with human rights.

It is worth at the outset reminding ourselves that, in Parliament, the law, the elected representatives of the people, the church and those who sit in this place representing a wide diversity of interest have one common duty under God—to defend the liberties of the people and to uphold the role of a just and equitable law.

One of the interesting things about our intellectual history is that here, in some contrast to the revolutionary experience on the Continent and even in the United States of America, the principles of the Enlightenment and the values and visions of Christian faith were not set in opposition to each other—a point made by the noble Lord. In her book The Roads to Modernity, Gertrude Himmelfarb even claims that John Wesley and the early Methodists were part of the Enlightenment in this country. The Wesleys evidenced that in a generosity of spirit that moved in the direction of universal values and moral sentiments. In the United States of America, at an earlier moment, Jonathan Edwards, that great person in the middle of 18th-century America who was both a preacher of the religious awakening and a contributor to the philosophy of the Enlightenment, seemed to hold the two faces of American culture together in his own person—strong religious experience and wide reasoning sympathies.

I was sorry to see in the 50th anniversary celebrations of the European Community that we were not able to celebrate the roots in our Christian tradition of our contemporary inheritance. I hope that we might be able to do so as that debate develops. Deep in the heart of serious Christian thought, over many centuries, has been a concern for the rights of the oppressed and the excluded, and deep in our liturgies and spiritual inheritance is the theme of liberty of conscience. Yes, as with every institution and powerful social agency, there have been nightmare scenarios of the church’s collusion with oppression and attacks on freedom. But a golden thread runs through our history that we need to contribute to establishing an unshakable foundation for human rights and liberty of conscience in our own time.

There is some astonishing Christian thinking in our history. Last year, I had the privilege of reviewing Roger Ruston’s latest book, Human Rights and the Image of God, on Francisco de Vitoria, Bartolomé de Las Casas and John Locke. Las Casas spent his whole intellectual life arguing against the conquest of Mexico and Peru. An interesting programme on television last night mentioned him. He opposed the enforced conversion of the people and the illegal appropriation of their lands by the conquerors. He made it clear that, from a moral and religious perspective, all the gold, jewellery and land that had been appropriated by the Spaniards should be restored to the people. In his view, it was a breach of the Gospel to seek conversion by force.

Las Casas even resisted the argument that the Spanish conquest could be justified on the ground of ending the Indian culture of human sacrifice and cannibalism, which is interesting, given some of the debates going on today. He declared that the Indians had not only a right of dominion over their lands and goods, but a natural right, even a duty, to worship according to their own light until such time as they were freely persuaded otherwise. He said that people are free to change by persuasion and the excellence of what is presented—not by force or the abuse of power, but through a fundamental respect for their own integrity and liberty of conscience.

The example is extreme and takes little account of the liberties of those being sacrificed and consumed, one might say, but its point is important on the protection of people from the abuse of power—political, religious and cultural. As a more contemporary thinker, Emmanuel Levinas, whose structure of thought was born in the fire of the Holocaust, said in our own time, we have a binding obligation to give ourselves to the other, always responding to their otherness and difference from us.

Religious belief gives to us an under-girding of our culture and the law on human rights and procedure, with an understanding of the moral and spiritual worth of the person and of human society. Picking up the comments of the noble Lord, Lord Patten, I suggest that our society, given its history, needs a fresh engagement between the traditions of the Enlightenment, with its emphasis on reason, freedom, equity, community and moral virtue, and the experience and reasoning of religious faith. If, in these days of so much abuse of human beings and their rights, we do not consciously seek to enliven that conversation and relationship, we may well be in danger of allowing our culture to lapse into one with a growing abuse of power, growing acceptance of violence against the person and an ever widening gap between peoples of different cultures in our society.

It is vital to maintain civil liberties in the face of various challenges in our time, not least the challenge of security. The most dramatic and urgent of these challenges is terrorism, but fear of crime and disorder also generates demands for actions that would erode or abrogate fundamental freedoms. We have already seen this in the provision for control orders against terrorist suspects and we are constantly being told that the criminal justice system must be rebalanced in favour of victims by restricting the rights of the accused. There is a major non sequitur in that argument, for doing justice to victims depends on convicting the guilty, and any moves that substantially increase the possibility of convicting the innocent would not only be unjust but would fail in their intended purpose.

Central to the life of a liberal, democratic society is the administration of justice. We should, therefore, cherish the provisions of the European convention relating to due process: Article 5, which stipulates the conditions for deprivation of liberty; Article 6, which guarantees the right to a fair trial; and Article 7, which prohibits punishment without law. Frequently, good reasons may well be advanced for eroding those provisions, but it is at such moments that proposals to curtail rights and to restrict liberties must be scrutinised in order to ensure that the social order that we are endeavouring to defend by those means will remain worth defending.

We must not set liberty of conscience and the rights of the individual in opposition to each other—a hierarchy of rights, which has been mentioned, in which we argue as to which is more important than the other. Guarding the liberty of the person’s conscience and a right for them to live their life according to it is, in the light of some important themes in Christian theology, a fulfilment of our duty; it is not in conflict with it. I am not required to agree with my neighbour; I am required to defend their liberty of conscience and they are required to defend mine.

My Lords, I, too, thank the noble Lord, Lord Lester, for this important debate. Like many noble Lords, I believe that the Human Rights Act is and remains the right vehicle for acting for the rights of British citizens. Before I came to this debate I spoke to a number of people, many from black and ethnic-minority communities, who increasingly felt that their liberties were being curtailed and that they were isolated and watched. We are the most watched population in Europe; the Government have found many ways of gathering more and more information on us. Many of us have little idea what other bodies have access to that information and how it is secured.

The Government have not inspired confidence in the British public with their IT projects, and their insistence on pushing for ID cards seems to many a very dangerous course, especially given the shambles that has followed the projects so far. To date, we have not received satisfactory answers on the holding of DNA or fingerprint details, whether or not a person has committed a crime, just on the basisof arrest.

The Minister needs to allay the fears of the public, particularly groups who already felt that they were targets for having their liberty removed on the basis of intelligence that cannot be readily challenged. Organisations such as Liberty have warned the Government of the negative impacts ID cards will have, in particular on race relations in this country, especially among ethnic-minority communities. Can the Minister provide evidence from other countries where ID cards are in use? Do citizens in those countries feel safer, and have ID cards lessened the threats felt among people? Youths in some communities feel that they are already looked at with greater suspicion by the police and other government organisations and that they are made scapegoats when intelligence turns out to be misguided. What were the outcomes of the many meetings held around the country by Ministers to talk to communities, particularly the Muslim community, and to address alienation and ways to re-engage Muslim youth?

Another area that concerns me greatly is the human rights of children and young people. Sadly the headlines only highlight the small minority who cause distress and mayhem to our neighbourhoods. However, many more suffer silently each day, until they are badly injured or, in some cases, killed. I was taken aback a few days ago when a news item showed that some people felt that the NSPCC’s television campaigns, encouraging people to offer financial support, were too graphic and too extreme. If those adverts distress us, can you imagine the pain and misery of children who have to endure that environment day in, day out? How do we keep failing these children when so much information is already held on us? Why is it that the police and other agencies cannot stop such atrocities, such as the example I will now give your Lordships? It was reported in the Observer on Sunday 4 February that:

“Britain's child protection services will face severe criticism … when a couple are sentenced for torturing their four-year-old daughter in a case that has alarming echoes of that of Victoria Climbie”.

The couple had,

“poured boiling liquid over the child’s hands, ripped out her hair, kicked her repeatedly … locked her in the toilet over seven terrifying weeks”

fed her her own faeces and given her cold baths. The parents had previously had the child taken away because there was already domestic violence between the spouses.

I have in the past supported women who have suffered terrible physical and mental abuse at the hands of their husbands and partners to get their lives back together, to help them find support and sometimes to support them in court. Where are the rights of those women and their children protected?

The Government’s mission has been to ensure that, increasingly, people can access our personal details, give greater rights for people to enter our homes on behalf of the Government and confine us to control orders without producing any evidence or giving us a right to appeal, yet when it comes to protecting rights it seems that the powers that be and the systems let down often the most vulnerable people. Can the Minister assure the House that there will be no plans to introduce ID cards and instead that the Government will fully support greater policing and better community cohesion? Can she also assure us that much better ways of handling information can be developed so that those who are most vulnerable from bullying in schools and abuse in the home can be dealt with much earlier in the process rather than being badly damaged before intervention takes place?

I come back to my beginning. The Government cannot say that they are the guardian of the human rights of the people in the UK when they are so determined to ignore those rights when it suits them. They cannot expect to move the goalposts when they so choose. It is the inconsistencies of their interpretation of the Human Rights Act that need to be sorted out so that people can have confidence in what the Government are doing.

My Lords, I am delighted that my noble friend Lord Lester has introduced a debate on human rights. It is particularly appropriate 200 years after Parliament voted to end the slave trade, one of the most dreadful crimes against humanity ever committed.

I must declare an interest as chairman of the council of JUSTICE, the United Kingdom branch of the International Commission of Jurists. I also have to confess to being not only a barrister but a secular liberal. The noble Lord, Lord Patten, raised some important issues worthy of a separate debate. I note that a debate on secularism has been scheduled for the Thursday following the Recess in the name of the noble Lord, Lord Harrison. Perhaps the noble Lord, Lord Patten, and I could cross swords on that occasion. All I would like to say today is that I entirely agree with him about the repeal of provisions discriminating against Roman Catholics in the Act of Settlement and the other legislation that he mentioned. You will find that my party agrees, too.

I pay tribute to the noble Baroness, Lady Verma, for her remarkable speech. It is the first time I have heard her speak and I look forward to hearing her on many future occasions.

JUSTICE is working on a project to create a British Bill of Rights. That Bill of Rights must, we believe, undoubtedly incorporate the rights conferred by the Human Rights Act and the European Convention on Human Rights. We hope to go beyond that by adding rights that are not adequately recognised by the European convention; for example, discrimination issues. Article 14 forbids discrimination on matters such as race, nationality or gender, but that prohibition is not freestanding. It is only a breach of the convention where there is discrimination in relation to the exercise of other rights under the convention. There is no express mention in the convention of discrimination on grounds such as sexual orientation or age. The European convention and the Human Rights Act do not include a right to trial by jury for serious crime. The USA and other countries whose legal systems are derived from ours recognise that in many cases as a constitutional right, although it is not recognised as such in many other countries.

The American Constitution is one of the great masterpieces in the history of political drafting. It has survived for more than 220 years, with remarkably few changes. The American Bill of Rights was not originally part of the constitution. Almost the first action of the federal Congress was to adopt the first 10 amendments, known in the USA as the Bill of Rights, to which were later added the 13th amendment, on prohibition of slavery, and the 14th, on due process and equal protection of laws. Some provisions of the Bill of Rights are outdated and inconvenient; for example, the second amendment, on the right to bear arms, and the seventh amendment, on the right to trial by jury in civil cases. By and large, however, the American Bill of Rights does and has done an immense service for the USA, and Americans are rightly very proud of it.

Our Human Rights Act is the closest thing that we have to the American Bill of Rights. I believe that it will be seen as the greatest achievement of the Blair Government, something which that Government have tried to undermine ever since; it is the modern Magna Carta. Why are we not as proud of the Human Rights Act as the Americans are of their Bill of Rights? There are a number of reasons. It is partly because of its sheer novelty; we have had it as legislation for less than 10 years and perhaps it has not fully bedded in yet. It is partly because the aim of the Human Rights Act was to incorporate the European Convention on Human Rights, which contains the dreadful word “European”. That leads some otherwise rational people to foam at the mouth, even though the European Convention on Human Rights is not a creation of the European Union and was largely drafted by British lawyers led by David Maxwell Fyfe, later, as Lord Kilmuir, a Conservative Lord Chancellor. It is partly also because of a vicious campaign by some parts of the British media, which have based their attacks on the Human Rights Act on stories that involve misinterpretation of the Act by officials or that are simply untrue.

It is partly also—this is particularly important—because many people have not yet understood the real purpose and nature of the Bill. All of us welcome the right for ourselves to freedom of speech, freedom of association, freedom of private life and so on, but any Bill of Rights must confer rights not just on ourselves but on, for example, terrorists, paedophiles and illegal immigrants. It is true that they have no right to incite terrorism or to circulate child pornography—nothing in the Human Rights Act requires that; far from it—but there are rights, such as the right to a fair trial and the right not to suffer inhumane punishment or torture, to which they are entitled.

Bills of Rights are directed at abuses from two very different sources, the first being against oppression by a Government. All of us understand that. We understand the damage that an oppressive Government, such as the Government of Zimbabwe today, can impose on their citizens. However, the other problem with which a Bill of Rights is meant to deal is oppression by us of other people; that is known as the tyranny of the majority. It is much more difficult for people to understand that; but we cannot claim the right to a fair trial for ourselves and refuse a fair trial for those accused of terrorism or paedophilia. We cannot detain people without trial unless they present a threat to the life of the nation. We have to be prepared to give rights to others, such as freedom to express their religious belief and freedom to change those religious beliefs, which they themselves in some cases would not be prepared to give us. Those are things that we must accept if we want to live in a humane and tolerant society. That is why, for example, I believe that the Prime Minister was wrong in saying after the London bombings of July 2005 that,

“the rules of the game have changed”.

This is not a game, and the rules have not changed.

The European Convention on Human Rights is a pragmatic document and gives government all the necessary powers for the defence of national security and prevention of crime. Without a Bill of Rights there is a real and increasing danger that we would become a brutal and vindictive society. Surely that is not a society in which we would wish to live.

I wish to add a coda to what I have said. I understand from newspaper reports that the budget for the DCA is to be cut by over 3 per cent in real terms. I understand that law and the lawyers are not necessarily popular and that, politically, there is more to gain in the short term by putting more money into hospitals and less into the legal system, but if we carry that problem too far we will end up with very slightly improved hospitals and a legal system in meltdown. The budget for the DCA is about £3 billion a year or about a third of what we are paying for the 2012 Olympics. Most of the budget goes on legal aid, but legal aid has been squeezed for years. Because criminal legal aid gets priority, civil legal aid—which is essential in, for example, cases concerning the right to housing and to benefits and cases of family breakdown—is on its way to being squeezed out entirely. I attach no blame to the Minister in this, and no doubt she is as anxious as I am to see that we have a strong legal aid system, but I believe that the destruction, which has been going on for some time and looks as if it might be accelerating, of what was once one of the world's best systems of legal aid will do immense damage to the rule of law and to human rights in this country.

My Lords, like the noble Lord, Lord Patten, I feel like a minnow in treacherous legal waters, but I dare to plunge in. Human rights have come from international treaties and were not invented by this Government, as is sometimes implied, but the Government do deserve credit for incorporating them into legislation, and about time. My own generation—students of the 1960s—long expected this pursuit of human rights to come from a progressive Government, not a conservative one. Perhaps that was because my father was a Tory MP with rather different interests and I did not immediately identify the search for justice for victims of poverty, persecution, crime and avarice with conservatism. However, now that I have heard the noble Baroness, Lady Verma, and had a chance to read David Cameron’s article in the current issue of Christian Aid News, and despite what the noble Lord, Lord Lester, said pertinently about the attitude to terrorism in the Conservative Party, or parts of it, I realise that I was wrong. It is, and it always has been, a Conservative objective. It is just that they never boasted about it. Perhaps they felt it was unobtainable.

I welcome the fact that all political parties are laying claim to this great inheritance, and I do not except the Cross Benches either; but we are still far from honouring the commitments that we have made. Today I should like to get over one simple point—that human rights are not contained within frontiers; they are indivisible, and international development has to go hand-in-hand with human rights protection in this country.

Perhaps I may quote the case of an asylum seeker who has been in touch with me recently, whom I shall call Maria. She comes from northern Mozambique. She is the child of a Christian Portuguese father and an Indian Muslim mother, so she can be called a world citizen with no claim to anywhere. During Mozambique's violent civil war, of which I had some experience myself, she lost contact with both her parents and any relevant documents were lost. She became a street child, homeless, sheltering with others along railway lines and even wandering across frontiers until a Portuguese family helped her to obtain a forged Portuguese passport.

Maria entered the UK in 1992 and for five years she managed to start a new life. She found work cleaning and cooking. She took English classes and was soon able to pay tax and national insurance. It seemed like a success story until her passport—her fake passport—was stolen. Although she reported it, she had thereby lost her only form of identification. At this point her work came to an end. There were no taxes paid. Her claim for asylum was turned down in 2005 and her allowance from NASS was stopped. She became destitute and reliant on the charity of churches. It seems that she still does not belong anywhere.

Two years later, Maria remains stateless, rejected by the Home Office and the Mozambique embassy. She says:

“I’m left begging for everything every day ... I am extremely exhausted, depressed and fearful ... I have no money for daily living … I wander aimlessly in the streets … (Yet) I sustained myself by working hard … educating myself and paying my taxes in this country and lived peacefully. That’s not what criminals normally do”.

She is being punished, she says, although she is a war victim. She is no “sponger” or danger to society.

How many men and women like Maria are there out there roaming the streets because the IND cannot look at individual cases and make initial decisions outside the tick boxes? How much more evidence is needed that in the search for neat solutions under the new asylum model and the host of regulations, we are letting down people of real quality? Here is someone who is the antithesis of the asylum seeker of popular imagination who is taking bread from our own mouths—I warm to what the noble Lord, Lord Goodhart, said about legal aid, of which I am sure the Minister will take note—someone who has not only suffered human rights abuses of many kinds but whom our society also needs and should cherish. Instead, we are condemning this person to the life of the street children that she thought she had left behind.

It is difficult to solve human rights problems far from home. This morning, by invitation of the noble Lord, Lord Judd, I listened to appalling stories about the treatment of Chechen women at the hands of the Russian state. The right reverend Prelate the Bishop of Chelmsford referred to such tyranny. When will we in Europe stand up to Russia, to hold up a mirror of what it is doing to persecute women who try only to stand up for themselves and explain the brutality they have suffered?

On Monday, with the noble Baroness, Lady Thomas, and others, I heard some distressing tales of women who have suffered human rights abuse in Herat in western Afghanistan. These were mainly cases of domestic violence against women who had been forced into marriage or servitude of various forms, and they had often been attacked, tortured and even set on fire. Some had opted for self-immolation. The remarkable woman who was trying to help them through a very small charity fully accepted that her efforts, although commendable in the context of her educated background, were feeble beside the trend of custom and tradition in Afghanistan. These stories can be told in our own communities, as we have heard, but when human rights workers come from afar to share their predicament we have obligations towards them. Their biggest task at home is to change the attitudes of politicians and people in authority who condone these practices in their own country. We have an obligation to help them, and, as countries contributing to their reconstruction, we may be able to help.

While human rights are indivisible and should be upheld anywhere, it is plainly impossible for all these problems to be solved by international development. It takes time for education and understanding to work themselves through in those countries to resolve the problems which the law by itself cannot solve.

On the other hand, if women such as Maria, along with thousands of families from Africa and Asia who now live in this country, have been able to escape from lives of poverty, civil war and human rights abuse, and are on our doorstep, can we not see them as equally deserving of international development in this country? Is not the filter of immigration control also a means of sustaining life and of celebrating survival?

This week we are celebrating 50 years of the European Union. As part of that we can rejoice at the standards we have set for ourselves in Europe, as expressed through the various conventions. I am not sure that I want to see much more written down or any more Bills of Rights. I would prefer to see a Europe which stops navel-gazing and constitution-seeking and looks outwards to the rest of the world. We have a great deal more to offer today than we had in 1957; and we could be more generous still.

In many ways we have become a magnet. That too brings obligations. Many of our citizens are alarmed by the prospects of migration. Yet we in Europe, with our ageing population and job shortages in certain sectors, need to attract more people to work here. Europe's population is falling rapidly. As a proportion of the world’s total, it was 12 per cent in 1945; it is down to 8 per cent today; and it is projected to fall to 4.5 per cent in 2050. Meanwhile, the pressure of refugees and migrants is greater than ever. This is surely not a threat but an opportunity, as I know the Government sometimes tell us, yet instead through some of our inward-looking policies we are in danger of condemning the persecuted to more misery, the poor to more penury and the homeless to a life on the streets.

My Lords, the noble Earl, Lord Sandwich, asked, “Are there any more Marias?” I am afraid the answer is “lots”. We heard about them in the Joint Committee on Human Rights. We even heard of one poor woman who had AIDS and was refused treatment on the National Health Service. She had no money and could not afford to have it done privately. That is something of which this country should be deeply ashamed.

The noble Baroness, Lady Whitaker, had a lovely sort of love fest for the Human Rights Act. She said that the Prime Minister’s record was frightfully good on it. I suggest that his record on it is absolutely appalling. He has introduced 3,000 new crimes and has said that ancient liberties are an old-fashioned virtue. Let us remember that the Human Rights Act, as the noble Lord, Lord Goodhart, said, was written by the noble Lord, Lord Renton, and Lord Kilmuir. I cannot mention Lord Kilmuir without remembering that little ditty:

“There’s nothing worse than death in life

Than David Patrick Maxwell Fyfe

And now at last he’s found the cure

And blossomed forth as Lord Kilmuir”.

The Lord Chancellor lectures us on the glories of Magna Carta, ancient liberties and the rule of law. The noble and learned Lord, Lord Falconer, sometimes reminds me of the French Army. France was the aggressor in Europe for about 300 years, but it managed to get away with it because it had an enormous amount of charm and panache—and it produced very good food. When the poor old Germans start behaving like that, they have neither of those so they get very strongly disapproved of.

The noble and learned Lord the Lord Chancellor has presided, almost with the panache of a French general, over an assault on our human rights and ancient liberties. I will list them because it is a list of which we should be deeply ashamed. I quickly note to my noble friend Lord Patten, who is not in his place, that the reason for keeping the Crown in the hands of the Church of England is that the Crown is supreme governor of the Church of England, and there is no hurry to repeal this legislation, if it needs to be repealed. In the Great Papal Bull of Regnans in Excelsis, Pope Pius V said that Queen Elizabeth could reasonably be assassinated by her Roman Catholic subjects because they could not show twin loyalty to the Roman Catholic Church and their lawful sovereign. The noble Lord, Lord St John of Fawsley, told me—and we all know that he is an essentially genius-like authority on these matters—that that Papal Bull was eventually repealed, but in the reign of our present Sovereign in 1958.

I should like to list some of the things that the Government have done which I regard as assaults on British liberties. Earlier this week we debated the Fraud (Trials without a Jury) Bill. The Government had earlier been persuaded by pressure from this House that such a provision could be brought in only by affirmative order. Knowing full well that they could not get it through by the affirmative procedure, they decided to produce a Bill on which they thought they might be able to invoke the Parliament Act. That is cheating, frankly. It is going back on what they said and, as was pointed out in the debate, those liberties are essential and should be guarded.

In no particular order, we have had the retaining of fingerprints from innocent people and the taking of DNA samples from children. It has been reported that up to a quarter of Afro-Caribbean males have had their DNA samples kept. The noble Baroness, Lady Verma, adduced that; and rightly so. It is a disgrace.

You can now be sent to prison—admittedly, indirectly—on the basis of hearsay evidence. ASBOs can be given on hearsay evidence. We know how unreliable that can be. If you breach an ASBO, that is contempt of court and inside you go. Consequently, you can go inside on the basis of hearsay evidence. That is against all natural justice.

Under control orders, of which we have been hearing in the JCHR, you do not hear the evidence against you. If your advocate hears what is called closed evidence, he is not allowed to pass it on to you, so you have no idea what are the charges against you. We still refuse to use intercept evidence.

Terrorism is criminal. Do not give it the flattery of calling it a war. We are dealing with criminals—of, I quite accept, a very nasty character. We must deal with them in the criminal way according to law and according to criminal evidence. The Government want to lock up people for 90 days without trial. Thanks to parliamentary action, the limit has been held at 28 days. Some of us would say that that is too long. During the whole of the IRA troubles, people could be held for only 96 hours without charge. We managed, more or less, to contain that. Through hints, we know that the Government are trying to increase that to 90 days.

We have the Regulatory Reform Act, which includes powers for Ministers, admittedly under restrained circumstances, to change Acts of Parliament. We have the Civil Contingencies Act, which again can repeal Acts of Parliament. Parts of the Animal Health Act allow Ministers much greater power than they should have.

There are the provisions for the prevention of serious crime and disorder. If someone thinks that someone is a crook, and a big enough crook at that, he can be put under house arrest, have his bank accounts frozen and be banned from using the internet or the telephone. As the noble Lord, Lord Goodhart, said, these people have their rights. I am not saying that they should be allowed to be drug dealers, major fraudsters or bank robbers. Of course I am not. I am saying that it is a very old established thing that you are innocent until proven guilty and you cannot just be locked up on suspicion.

I believe that there were 439,000 applications to monitor telephone calls last year. About 500,000 people have been stopped and searched under terrorism laws, including yours truly, who was driving down the Embankment and was stopped by two policemen and three special constables. When I said that I had had my car searched in the House of Lords car park and showed them my identity card, they redoubled their endeavours to search my car. I did not object to that, but, on principle, it is wrong. I accept that in my personal circumstance it may be perfectly justified.

Under terrorism laws, people have been arrested for having something rude about the Prime Minister on a T-shirt at an agricultural show. People have been arrested and charged under the Crime and Disorder Act for reading out the names of war dead in front of the Cenotaph. An elderly German was arrested for heckling Jack Straw at a political meeting. What the heavens are political meetings for if you cannot heckle people?

Finally, irony of ironies, someone was arrested for quoting George Orwell outside No. 10 Downing Street. Civil bailiffs have for the first time since 1604 been given the power to force their way into private houses.

That is not the record of a Government interested in civil liberties; it is the record of a Government who have taken them away and abused them. The sooner that they are out of office and those liberties can be restored to the British people, the better.

My Lords, my thanks go to the noble Lord, Lord Lester of Herne Hill, for initiating this debate. As other noble Lords have said, it is particularly apposite today as we look forward to the coming weekend and Sunday, 25 March, which marks the 200th anniversary of the abolition of the slave trade—or the passing of the Act.

My Lords, may I correct the noble Baroness? It was the abolition by us of our slave trade. Others went on for another 60 years, unfortunately. Do give us credit for it, because it is very well worth having.

My Lords, I thank the noble Earl for his intervention. I am very well aware of that fact, as I would have gone on to say, but I thank him for making that point.

The passing of the Act will be commemorated throughout this country and internationally this year. A wide range of organisations is working on the political and social legacy of the slave trade while highlighting the work of prominent abolitionists such as Olaudah Equiano, Ignatius Sancho, Hannah More and William Wilberforce, and the wealth generated through the slave trade in places such as Bristol, Liverpool, Birmingham, Lancaster and London. There will be a significant exhibition here in Westminster Hall indicating the role of Parliament in both sustaining and abolishing that abominable traffic.

This afternoon, I want to raise the issue of public consciousness regarding human rights culture but, first, I want to say just a little about the role of the arts in human rights debates. I should here declare an interest as chair of the advisory group on the parliamentary exhibition and as co-curator, along with Dr Nima Poovaya Smith, of an Arts Council-funded programme of artistic commissions and events to commemorate the bicentenary, “Freedom and Culture”. The project aims to demonstrate the continuing role that the arts play in the emancipation of the human spirit—a theme that occurs throughout history, but particularly in relation to African diaspora encounters with Europeans.

Historically, artists, writers and scholars have played a key role in shaping, influencing and informing events relating to physical, emotional, intellectual and spiritual freedoms. It is therefore crucial that the arts sector makes a considered and high-profile contribution to the commemorations across the UK this year and that public funding continues to support art that helps to heal the human spirit, especially of the most vulnerable groups in society, to deepen understanding, to articulate complex ideas in creative ways and to expose tensions between competing rights and sensitivities. Full participation by artists and arts organisations will be important as a means of demonstrating the continuity of the engagement of artistic practice with struggles for liberation and human rights across time and place.

It is worth reflecting on the wider meanings of the bicentenary in the context of today’s debate on human rights and fundamental freedoms in the UK today. We in this House and in the other place are all too aware of the modern versions of slavery that still exist, despite the fact that it is banned in most of the countries where it is practised and despite the fact that there are several declarations, conventions and directives against such practices. The bare facts of the extent of the misery caused by trafficking in human exploitation—women, children and men being forced to work, in debt for life, subject to threats and torture—have been laid before your Lordships’ House on various occasions by many noble Lords with a deep commitment to ending those forms of exploitation.

Within the parliamentary exhibition on the slave trade, Anti-Slavery International has curated a section revealing insight into the relevance of the history of enslavement to our current situation. More than 180 years after its establishment, the organisation’s campaign against enforced labour and the denial of human freedom and rights is still necessary and vital in a contemporary globalised world.

Internationally, Anti-Slavery International continues to press relevant agencies of the United Nations, such as the Commission on Human Rights and the Working Group on Contemporary Forms of Slavery, to make the issue of trafficking a priority and to ensure that the rights of the person trafficked are central to any anti-trafficking measure. Anti-Slavery International’s anti-trafficking programme comprises three elements: campaigning to end human trafficking; lobbying for victim protection; and research on measures that Governments take to protect the victims of trafficking, especially those who act as witnesses. This last point is vital. Assurances of protection against revenge are absolutely essential if the anti-trafficking measures are to be effective. The establishment and protection of the human rights of those who are victims of contemporary forms of the abominable traffic should surely be a priority in any anti-trafficking strategy.

Those in Britain who denigrate the notion of human rights often do so from the vantage point of having benefited from centuries of struggle to achieve them. The mischievous misrepresentation of a few high-profile cases misleads the public and contributes to antipathy towards these issues. Frivolous uses of the term to refer, for example, to people who wish to smoke in restaurants or drive fuel-hungry vehicles distort the intentions and do a disservice to those powerless victims of human rights abuses who have no public voice. The freedoms and rights to which we refer are fundamental and should be unarguable.

Although we should recognise that Britain has travelled some distance in respect of human rights since 1807, we need to be aware of the extent to which these gains have often had to be wrung from reluctant Governments, have frequently been contested and resisted by politicians from all parties, and have sometimes entailed defamation of people’s characters. Sadly, they have also sometimes resulted in the loss of life. We should also recognise that many members of the general public are still unaware—or, worse, uncaring—about the fact that, for example, switching on the lights has an impact on the freedoms and rights of the people of the Niger delta, or that the cheap shoes or rugs that we buy come at the expense of the physical and intellectual development of young children. And what about those men who think nothing of using a brutalised woman trafficked here for their gratification from Europe and Africa? Our own human rights achievements count for nothing if we perpetuate pain and misery for other, more vulnerable human beings elsewhere. One of the reasons why the trans atlantic slave trade could thrive for centuries was that the people of this country refused to regard enslaved Africans as fellow human beings. Surely we do not want to continue with that view today.

Government action should be informed by the values that we claim to hold dear, in the tradition of those who have struggled and have sacrificed their lives for the principles of universal enfranchisement, children’s rights, women’s suffrage, anti-racism and anti-discrimination. It should not be shaped by the political agendas of the tabloid press.

We are on the threshold of launching a new body that recognises the importance of the need for embedding in Britain a human rights culture that takes these issues seriously. In October this year, the newly formed Commission for Equality and Human Rights will come into being. In a briefing sent out on this debate, the Disability Rights Commission, one of the organisations that will be subsumed into the new body, states that the,

“CEHR will have a strong set of tools to strengthen individual rights, shift institutional behaviour and transform public attitudes”.

I sincerely hope that that statement is correct. I also hope that the Minister will be able to say something about the contribution that the new commission will make to public education and understanding of these issues, particularly the real meaning of a human rights culture. With the right powers and resources, the establishment of the CEHR could mark a new era in the development of a progressive rights and equalities agenda for all citizens of this country. It could also develop a deeper sense of connection to struggles for freedom and rights across the globe.

My Lords, historically, the people of Britain were protected not by a written human rights Bill but by ancient statutes such as the Magna Carta, the 1689 Bill of Rights and the principle of habeas corpus. However, as we approached the 21st century, it became necessary to offer a more structured definition of the rights of the individual and how these should be protected in our modern society. This resulted in the Human Rights Act 1998, which came into force in October 2000, tying Britain to rights detailed in the European Convention on Human Rights and Fundamental Freedoms.

The Human Rights Act solidified the relationship that Britain already had with the European Convention on Human Rights, of which it had been a signatory since 1966. The intention was to make it easier for individuals to protect their rights in the British judicial system. Since 2000, however, the interpretation of the Act and the failure to find the right balance between individual and community rights have led to the emergence of a culture of rights, which is being exploited to the extreme. Several high-profile cases have attracted media attention by highlighting the difficulties that the British courts have had in translating the Act into practice—for example, the Court of Appeal’s refusal in 2004 to deport nine Afghan hijackers, despite the fact that the Taliban regime that had threatened them had been toppled. This was seen as evidence of the Act’s ability to put the needs of an individual above the safety of the community or even the nation.

Not only has the Human Rights Act not been fully effective, but this Government have taken an increasingly anti-libertarian stance in the wake of September 11. Legislation such as the Prevention of Terrorism Act 2005 has attempted to restrict some of the very rights that the Labour Government intended to protect with the introduction of the Human Rights Act. Furthermore, the introduction of ID cards is totally wrong. It interferes with the privacy of citizens but does not offer them protection against harm. It is an unwanted imposition.

There are alternatives. A debate is emerging on the feasibility of the repeal of the Human Rights Act, to be replaced by a British Bill of Rights that would reflect more accurately the relationship between the citizen, the state and security. A Bill of Rights would have to balance rights with responsibilities. It would have to outline clearly the core values that give us our identity as a nation, and would likely mirror many of the rights set out in the European Convention on Human Rights. However, it would also provide the opportunity for national discourse on what fundamental civil liberties should be protected, and greater clarification of the exact details in a British context would enable the courts better to apply the Bill of Rights. This change would not remove all controversy. We could not deport some people because of the fate that awaited them in their own country. To deport them would constitute a violation of Article 3, on protection from inhuman and degrading treatment. The Bill would help to prevent decisions, such as the one concerning the Afghan hijackers in 2004, which appear to be irrational and wrong.

A Bill of Rights would also silence critics who believe that the UK has lost too much parliamentary supremacy due to compliance with European laws. By entrenching a new Bill of Rights in Parliament, the UK would be asserting her own decision-making power and restating our legislative independence from Europe. That would clarify fundamental duties, safeguard liberties and provide equality in law and civil rights.

Undoubtedly the system as it stands is creating far more questions than it is answering. The introduction of a new Bill of Rights would strengthen our hand in the fight against crime and terrorism. Ultimately, a British Bill of Rights would have the power to promote awareness and be a reminder to British citizens that each person has as much of a responsibility to uphold another’s human rights as they have a right to have their own rights protected. If the Bill is suitably drafted, it will incorporate common values so that British citizens of all backgrounds will feel that it applies to them and there will be common ownership of the Act. I am sure, therefore, that there will be acceptance from everyone in the country.

My Lords, I too congratulate the noble Lord, Lord Lester, on securing the debate and thank him for the opportunity to take part. He described the human rights legislation as having a magnetic force over the whole legal system, and I am sure that he more than anyone else understands the impact of that. But I am challenged by the push indicated in his own speech and that of the noble Lord, Lord Goodhart, for a UK Bill of Rights. I want to reflect on that a little and question whether we need yet further legislation. The noble Earl, Lord Onslow, has rightly pointed us to the excess of law we have been engulfed in. We must ask whether we need more legislation or whether we need a different approach of mind. The noble Lord, Lord Goodhart, said that without a Bill of Rights we would become a brutal and vindictive society. He may well be right. However, I wonder whether with a Bill of Rights we might not instead become a more punitive, aggressive and frightened society. We should take some time to consider that as an optional outcome of further legislation.

Later this year there will be the formal launch of the new Commission for Equality and Human Rights. I welcome that, not only because it is led by my good friend Trevor Phillips and many others known to noble Lords, but also because it will attempt to take forward the work of the existing commissions and become more dynamic and progressive. I do not suggest that some of the former bodies were not, but it will seek to be. For nine years until 2001 I served on the Commission for Racial Equality, mostly under the chairmanship of my colleague and noble friend Lord Ouseley, who is not in his place today. Under his chairmanship we fought hard for the progress of race relations legislation and I was proud to be one of those who contended for the reform Act of 2001 which brought in provisions on institutional racism, the promotion of good race relations and public duty provisions. Those were significant achievements, ones I feel were worthy of the time and effort given to them.

However, recalling those achievements caused me to reflect deeply on the amount of time consumed by the monthly meetings of the commissioners, and the paperwork and documentation that ate up our living hours as we struggled with just one of the five areas which the new Commission for Equality and Human Rights will attempt to address and get right. It has a huge remit in front of it: it must promote a human rights culture and good relations between individuals and communities; according to briefings sent to noble Lords it will try to shift institutional behaviour and transform public attitudes. It will seek to make human rights acknowledged as intrinsic to Britain’s prosperity, security and well-being. These are huge, noble tasks and if I recall anything of the pressures of the Commission for Racial Equality, it will take a wise group of men and women, perhaps meeting daily, to achieve them.

I note that the noble Lord, Lord Lester, has left the Chamber for a moment, but I want to reflect briefly on last night’s discussion in this Chamber on the sexual orientation regulations. In his speech he commented on the pressure behind the regulations, saying that,

“it is unfortunate that the law has to be reformed by secondary legislation, since, as has been said, this reduces the scope for scrutiny of the detail of the regulations, and that the reason for this is that the Home Office unwisely included religious discrimination in the Equality Act without providing also for sexual orientation discrimination”.—[Official Report, 21/3/07; cols. 1321-22.]

My vote last night was cast in reflection of the fact that no matter how just, necessary and essential those regulations may well be, contentious and horrid regulations or legislation are never good law. I wonder whether there may not have been some reflection by the soon-to-emerge Commission for Equality and Human Rights on a better way to achieve all this, rather than to rush through processes which will cause many to continue to wonder whether we have given sufficient time or understanding to these critical issues, which, as the noble Lord, Lord Goodhart, said, might make us a more brutal and vindictive society.

My noble friend Lady Young also referred to the celebrations being held this week and throughout the year to mark the 200th anniversary of the abolition of the slave trade within the shores of the United Kingdom. It is something we should all rightly feel proud of. Last night with William Hague and Alan Johnson, the Secretary of State for Education and Skills in another place, I was privileged to host in Portcullis House the screening of “Amazing Grace”, the film of the life of William Wilberforce. There will be considerable discussion and debate in this House of the impact of all these issues over the rest of this year. That is something we should all welcome and want to participate in.

But we are being encouraged to remember that the achievements of slavery reduction and removal 200 years ago are almost as nothing to what is the contemporary slavery of today, and the pain it inflicts on multitudes of our fellow human beings, involving as it does the loss of their human rights. The Deputy Prime Minister said, in a speech delivered in another place during a debate to mark the bicentenary of the abolition of slavery:

“The ILO estimates that a minimum of 12.3 million people are enslaved in the world today. Of those trafficked into forced labour, 43 per cent. are subjected to sexual exploitation, 32 per cent. to labour exploitation, and 25 per cent. to a mixture of both. The estimated value of that criminal activity is $32 billion”.—[Official Report, Commons, 20/3/07; col. 692.]

It is easy for us to shake our heads and feel irritated and complacent, and in some sense anguished about what others do abroad in human trafficking. Let me quote from the shadow Foreign Secretary, Mr William Hague, who said later in the debate that:

“It is important that we in Britain wake up to the gravity of the situation on our own doorstep. A fortnight ago, an official at the Lithuanian Ministry of Information declared that Britain is the No. 1 destination for gangs smuggling sex slaves from countries such as his own. Last year, when our police conducted a four-month operation to tackle sex trafficking, they rescued 84 women—a small number in the scheme of things, but the list of their countries of origin tells its own sorry tale of the trail of misery. Those 84 women came from Albania, Brazil, China, the Czech Republic, Estonia, Germany, India, Iran, Jamaica, Kenya, Latvia, Lithuania, Malaysia, Namibia, Poland, Rwanda, Russia, Slovakia and Thailand”.—[Official Report, Commons, 20/3/07; col. 701.]

We have a lot to get right in this regard, and I question whether further legislation is really the way to achieve it. It may well be. With regard to the current slave trade and its ugly, damaging appearance in the life of this country among those people who choose to pay for services—for which they should not wish—from others trafficked from around the world, I only ask whether it is legislation or culture change that will achieve this. The noble Lord, Lord Lester, said that one of the key ambitions of a new UK Bill of human rights would be improved citizenship. We would all want to affirm that as appropriate; we desire it, and we would seek it.

I shall refer to another legal expert. A Lenten talk was given on Radio 4 on 14 March by no less a figure than Cherie Booth, in her role as president of Barnardo’s. She said:

“Fifteen year-old Andy from Newry in Northern Ireland was brought before the court for attempting to attack the police. As part of a community responsibility order, he met with police, fire service and ambulance crews who told him what it’s like to be under attack from hooligans when they are trying to save lives. Andy began, for the first time, to appreciate the risks they took and the impact of his behaviour. He wrote a letter of apology to the police and joined the Fire Brigade cadets for a six week programme on public safety. The programme also helped Andy look at the things in his life which made him angry and develop ways of coping with these—within his family, where both his parents had problems with substance misuse, and at school, where he was frequently in trouble. Andy is accepting responsibility for his actions—but there’s another way to look at this. The community is accepting its responsibility for Andy as well. All too often society wants to draw a “them and us” line between offenders and victims without recognising that offenders are often victims themselves. We can’t ignore the fact that over a half of all 15 to 17 year-olds in custody and a third of all prisoners have been in care at some point in their lives, nor that the majority of women in prison say they’ve been victims of domestic or sexual abuse. The Archbishop of Canterbury recently called on society to recognise the part it has to play in the journey of reform and rehabilitation that the offender needs to embrace, because that has to be the fundamental goal of the criminal justice system. Those who have been through our courts and prisons need to be helped to return to society as full and contributing members”.

I quote that story because I want more than ever to see us achieve, with the continued downward and upward pressure on human rights—we should all be keen in that endeavour—less of the weight of law and more of an opportunity for responsibility to balance rights. My concern is that a UK Bill of Rights and the continuing regulatory rights culture that we have seen around us, and all the pressure it brings to stand up for, defend and even litigate for rights, has not necessarily moved us to understand the place of duty, responsibility and fair citizenship.

My Lords, I, too, congratulate my noble friend Lord Lester on securing this extremely interesting and important debate. I shall focus on the requirements of Section 19(1)(a) of the Human Rights Act, which provides that the Minister of the Crown in charge of a Bill in either House of Parliament must make a statement to the effect that, in his or her view, the provisions of the Bill are compatible with the convention rights. That is the statement of compatibility, with which we are all too familiar. The provision was brought into force in November 1998, and we constantly see on the cover of any government Bill the short statement:

“In my view, the provisions of the … Bill are compatible with the Convention rights”.

And that is all we see.

In all parliamentary systems which have adopted a Bill of Rights or its constitutional equivalent, there has been a debate about whether the judiciary should have the sole authority when claims of rights clash with political decisions; in other words, whether judicial interpretation must prevail over political judgment. In some systems in the United States, to which my noble friend Lord Goodhart referred, and in Canada in particular, the judiciary is authorised to invalidate legislation that is inconsistent with guaranteed rights. My own first contact in this field was with the Hong Kong Bill of Rights, to which the noble Lord, Lord Wilson of Tillyorn, as Governor of Hong Kong, gave his assent in June 1991. It incorporated the provisions of the International Covenant on Civil and Political Rights and provided, in terms, that all pre-existing legislation which does not admit of a construction consistent with this ordinance is, to the extent of this inconsistency, repealed. So if it was inconsistent, it went.

In its early days, the Hong Kong judiciary, with this new power to strike out legislation, exercised it with a will. I appeared for the appellant in the first test of its judicial activism in the Privy Council in the case of the Attorney-General v Lee Kwong-kut in 1993. It dealt with the reverse of burden of proof in a criminal charge, an issue, incidentally, that we were debating yesterday in the Serious Crime Bill; it is important. The noble and learned Lord, Lord Woolf, expressed his disquiet at too much judicial activism and cautioned that questions of policy remained primarily the responsibility of the legislature. He held that a strict attitude towards statutory defences would merely encourage the legislature to adopt a different drafting style which would not assist individuals who were charged with offences. He said:

“While the Hong Kong judiciary should be zealous in upholding an individual’s rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public”.

That was colonial legislation introduced in 1991 by the British Governor, the noble Lord, Lord Wilson.

The Human Rights Act, which we introduced here in 1998, followed a different model that was closer to that adopted by New Zealand in 1990. In that, the judiciary is not authorised to invalidate legislation that is inconsistent with guaranteed rights. As noble Lords will know, the Human Rights Act obliges courts to interpret legislation so as to be as compatible as possible with convention rights, but the court may make a declaration of incompatibility which can engage a fast-track mechanism to enable Parliament to amend that legislation.

However, there is no obligation on the Government to use that mechanism. There is no requirement even for them to comment or to give reasons for disagreeing with the court’s ruling. The problem in the United Kingdom, deriving, I have to say, from a first-past-the-post electoral system, is that strong party discipline results in very few checks on decisions of the Executive. The concentration of power in the hands of the Prime Minister of the day, barely modified even by collective Cabinet decision-making, means that guaranteed rights can be ignored or written over. The noble Earl, Lord Onslow, provided a list: the removal of jury trials in serious fraud cases and the introduction of ASBOs, control orders and, now, serious crime prevention orders by using a civil standard of proof and civil methods of proving the issues involved.

I recognise, however, that there are some limitations. No Minister wants to be criticised for having the legislation for which he or she is responsible declared by the courts to be incompatible, hence the provisions of Section 19, by requiring a statement of compatibility, demand of every Minister some form of pre-legislative scrutiny of every government Bill. There is a natural scepticism, not least on these Benches, about the statements that appear on the front of Bills. Frequently, particularly as regards Home Office Bills, there is a sharp debate as to whether the provisions of the convention have been violated. As the right reverend Prelate the Bishop of Chelmsford pointed out, there is a clash between the maintenance of civil liberties and the attack on crime. Many of the Bills that are introduced by the Home Office contain that clash, thereby inviting a dispute about whether they comply with the convention.

The debates that we have are informed by the reports of the Joint Committee on Human Rights to which the noble Lord, Lord Lester, referred. That committee has the important function of advising both Houses whether rights have been fully respected in the Bill in question. In addition to its consideration of representations from a wide body of opinion, the committee has the power to question Ministers to seek explanations and clarifications of legislative proposals. If a statement of incompatibility is made by a Minister under Section 19(1)(b) of the Act, there is inevitably controversy.

As a result of the Anti-terrorism, Crime and Security Act 2001, the Home Secretary entered a derogation from Article 5.1(f) of the ECHR and the Joint Committee on Human Rights was not convinced that the three requirements set out in Article 15 were fulfilled. In particular, the committee drew to the attention of both Houses the question whether a public emergency existed which threatened the life of the nation. It drew to our attention the overly broad definition of a terrorist and the lack of due process in relation to detention orders. There was a robust debate which led to some amendments, in particular a requirement of reasonableness relating to the decision to certify a person as a suspected international terrorist, and your Lordships will recall the introduction of a sunset clause.

However, in the case of A v Home Secretary in December 2004, the Judicial Committee of this House, sitting as a Bench of nine Lords of Appeal, held that indefinite detention under the Act was contrary to the convention and it made a declaration of incompatibility. Three years have gone by with this legislation in place and it is unsatisfactory that so many years may go by before the courts have the opportunity of pronouncing on guaranteed rights issues because during that time individuals caught in the system may suffer severely. Greater parliamentary scrutiny, therefore, is absolutely essential to ensure that rights are respected in the making of new statute law and here is where the noble Lord, Lord Patten, and the noble Earl, Lord Sandwich, come in. It is not the exclusive territory of liberal totalitarian secular lawyers to determine years later whether an Act of Parliament is incompatible with the convention. It is a matter that should be at the forefront of our discussions when we actually make that legislation.

While the Joint Committee on Human Rights performs a vital and important role, Parliament should be better informed at the beginning of the legislative process about the Government’s evaluation of rights issues and the reasoning that lies behind these formal statements of compatibility. There should be transparency. These statements in the Bill are purely formal and they contain no guide or explanation of the assumptions or the values which lie behind the Government’s purposes. It simply says that the Minister certifies that this Bill is compatible with the convention. These formal statements should be accompanied or supported by relevant information which would allow Parliament to debate fully their merits and justifications. We should know what the aim of the Bill is; what harm or concern the Government are addressing; whether there is a possibility of a rights restriction; what the justification for it is; and why less restrictive measures are not being considered by the Government. We need information which we can debate at the beginning of the legislation. It should not be left to the courts years later and to the totalitarian secular lawyers to be arguing about it in succeeding years.

I draw to the attention of the Minister an important article interpreting a Bill of Rights by Janet Hiebert of Queen’s University, Kingston, Ontario in the British Journal of Political Science published in 2005 by the Cambridge University Press. That compares the systems of New Zealand, Canada and the United Kingdom and I am sure she and her department would gain a great deal from it.

As we have in this country consciously adopted a system which denies to the judiciary the final say when determining constitutional validity, political scrutiny of impending legislation is vital. If a Government give their reasons, they can be properly examined by the Human Rights Committee, considered by the public at large and, most importantly, tested in debate. Along with my noble friend Lord Goodhart, I have often said that the Human Rights Act is the Government’s most important legacy—indeed, it is probably the only positive one. It has helped to nurture the culture of respect for rights to which my noble friend Lord Lester referred.

Criticisms of legislation by parliamentarians based on human rights considerations are not to be considered as the usual cut and thrust between opposition and government. There are few electoral votes in arguing for the rights of minorities. The noble Lord, Lord Sheikh, referred to the Afghan hijackers. I appeared in that case; they were lawyers and teachers who were escaping from the Taliban. It would have been a little unusual for us to send them back to Afghanistan when we were invading it to get rid of the Taliban. They were protected by human rights legislation. The Act should not be seen as a veto on legislative or executive action.

The considerations of human rights are essentially assertions of the norms—the noble Baroness, Lady Whitaker, referred to the fair play concept—and values of our humane society. Parliament agreed the Human Rights Act in 1998, in the year 2007, it should be fully respected.

My Lords, I add my congratulations to those already delivered by many other of your Lordships to the noble Lord, Lord Lester of Herne Hill, on initiating this debate, which I think everyone will agree has been first class.

Many things of real constitutional value have flowed from the arrival of the Human Rights Act on our statute book. I can think of two particular principles that have been greatly advanced and enriched by the jurisprudence of the past 10 years. First, the principle of equality, rather undervalued by the common law, has shown a remarkable development by virtue of our courts applying the European Convention on Human Rights. Another principle that has prospered has been that of non-discrimination. In his own appearances in the courts, the noble Lord, Lord Lester of Herne Hill, has made a vital contribution to that.

However, the Human Rights Act has not, in my judgment, commanded the public respect that it ought to have done and that it deserves. There are a number of reasons for this. First, there have undoubtedly been some foolish or misplaced decisions—I do not know how one would properly describe them—by public servants in the name of human rights that have benefited people who either did not deserve those benefits or at least were not perceived as deserving them. The noble and learned Lord the Lord Chancellor has spent a great deal of time in the past two or three months agreeing that some of these decisions were foolish—I am thinking particularly of the one where a certain police force seemed reluctant to issue the photograph of an escaped criminal. The noble and learned Lord has promised that new directions will be delivered to civil servants and others serving in public authorities to ensure that incorrect interpretations of the human rights legislation will be, if not entirely eliminated, at least minimised.

The second reason is that, despite the fact that the Human Rights Act is a product of the present Government, it continues to receive at best only lukewarm endorsement from Ministers. This is a particularly unattractive factor, especially when direct attacks are made on judges who base their decisions on human rights legislation, which is what the Act requires them to do. When political leaders make such attacks, it is no wonder that from time to time the public call its value into question.

Thirdly, my noble friend Lord Onslow was at pains to point out that, far from protecting the traditional rights provided to us over the centuries by the common law, the Act has often proved useful camouflage for promoting legislation that undermines them. In developing his argument under Section 19, the noble Lord, Lord Thomas of Gresford, made glancing references to these. One thinks of jury trial, habeas corpus and the conversion of what ought to be criminal offences into civil offences in order to lighten the standard of proof on the prosecution. One thinks of what I find a particularly offensive development in our criminal law—the changes made to the propensity rules in the Criminal Justice Act 2003.

Before the Human Rights Act was on the statute book, nobody would have dreamt of questioning these very hard earned, long established common-law rules. Yet we are now told that these changes are human rights convention compatible. The reason for this is that jury trial and a great deal of the evidential protections that flow from it are an unfamiliar feature on the continental jurisprudential terrain. Therefore, the European Court of Human Rights has been reluctant to grapple with these issues when they have been taken to Strasbourg. That is one of the reasons why talk of a British home-grown Bill of Rights is in the air.

The noble Lord, Lord Goodhart, is chairman of Justice. I have the honour to serve as a vice-chairman of Justice under his benign leadership. We are both engaged in a project in Justice that seeks to assess whether the next stage in the development of human rights in the United Kingdom ought to be through our own home-grown legislation. My right honourable friend Mr David Cameron has established a committee in the Conservative Party chaired by the noble and learned Lord, Lord Lyell of Markyate, to address precisely the same issue. When Justice and the Conservative Party simultaneously think that there is a problem, it must be a problem well worth looking at.

If a Bill of Rights proves to be a desirable future initiative, one of the most important contributions that it will make will be the protection of the defendant in criminal trials. The right reverend Prelate the Bishop of Chelmsford rightly drew our attention to the frequent statements from government Ministers about rebalancing criminal law and criminal evidence in favour of victims, with the effect of reducing the rights of the accused. In other words, the defendant is more likely to be convicted. Nothing offends human rights more than a system that is prone to punishing the innocent. One of the objectives of a British Bill of Rights would be to make sure that we do not have a system that is prone to that.

There are other objectives of such a Bill. The noble Lords, Lord Goodhart and Lord Lester of Herne Hill, might not agree with what I am about to say; they will have their own views about what ought to appear. One area that I am particularly concerned about—I know that the noble Baroness is intimately involved in it at the moment—is the question of due process in administrative tribunals. We are establishing a common tribunal system with a common administration, but each one of the 70-odd tribunals has its own system of due process. In some cases, the system is absolutely right for the tribunal’s objective; in other cases, the process is wholly inappropriate. I would like to see some basic standards of due process set out for tribunals.

My noble friend Lady Verma talked about us being the most photographed nation in Europe. How right she is—and it is not only a question of being the most photographed. We must be one of the nations that suffer most from invasions in our privacy. Information that government departments can obtain from us can now be shared with most if not all other government departments, for purposes that we do not know. This is another area that a Bill of Rights would address.

My noble friend Lord Patten reminded us that important aspects of religious freedom ought to be enshrined in such a Bill. I do not want to enter today into whether the list that he provided is the right one, but he has an important principle, which ought to be considered by any drafting committee.

The draftsmen will also have to confront some awkward questions, particularly in the area of terrorism. We are obliged, not only by Article 3 of the convention but also under the international Convention against Torture, not to deport a suspected terrorist where there is a real risk that he will suffer torture in his country of destination. Anyone who is complicit in a series of events that leads to somebody being tortured is effectively now committing an international crime. This is a real problem for us when we cannot prosecute people for the offence that we allege they have committed. I am not pretending for a moment that a Bill of Rights will make all the issues that we face easier. However, there are certainly gaps in the convention that we need to fill.

A number of your Lordships, particularly the noble Earl, Lord Sandwich, the noble Baroness, Lady Young of Hornsey, and the noble Lord, Lord Hastings of Scarisbrick, reminded us that the issue of human rights is an international problem and that, compared with many other countries, we are extremely fortunate. The noble Earl, in particular, rightly said that we perhaps ought to spend rather less time engaged in navel-gazing and more time exporting the remarkable experiences that we have had in developing our human rights legislation and doing our very best to ensure that human rights breaches are minimised in international society. I know that that is a concern. The peroration of the speech made by the noble Lord, Lord Lester of Herne Hill, addressed precisely that issue and the extent to which we ought now to be more directly engaged as a people in the United Nations conventions on various matters that have been raised by your Lordships today. That goes beyond the defined scope of today’s debate; but we should remind ourselves that those matters are nevertheless of great importance.

I see that I have strayed a minute beyond my permitted time. In those circumstances, I shall hasten to sit down.

My Lords, I do not mind if the noble Lord or the noble Lord, Lord Thomas of Gresford, strays, as noble Lords have much to say. I congratulate the noble Lord, Lord Lester, on this debate. There are few in your Lordships’ House who can claim to have as long and expert an association with the human rights traditions of this country and issues of equality and discrimination. It is a pleasure to be able to work with him on occasions, of which today is one. I am privileged to have that opportunity.

Contributions have ranged across a variety of different issues such as religious freedom, the Act of Settlement, the Spanish conquest, legal aid, trial by jury, ID cards, the alienation of some of our communities, a Bill of Rights, cannibalism, the horrors of domestic violence and child abuse, Maria’s story, the plight of Chechen women, the misery of slavery, statements of incompatibility, trafficking and the DCA budget, to name not all, by any means. Anyone listening to this debate who has any doubt of the relevance of the discussions on human rights to our daily lives has only to look at that range of subjects. As I only have 20 minutes in which to try to wind up this debate, noble Lords will forgive me if I do not cover all the issues that have been raised today.

The noble Lord, Lord Patten, unfortunately left us just when the noble Earl, Lord Onslow, was kind enough to address the points that were raised; I refer him to that contribution, which, in part at least, answered some of the questions. He has chosen well in his choice of the noble Baroness, Lady Knight of Collingtree, as a good model. The noble Lord, Lord Kingsland, and I were reminiscing, and I am reminded about her role in taking up issues—in the case of the Mental Capacity Act, the issue of basic care—and never allowing us to forget the importance of addressing fundamental questions of how we support, particularly, the elderly. I pay tribute to her.

The noble Lord, Lord Patten, raised some interesting questions, picked up in a number of contributions, about religious freedom and about the importance of how we tackle those issues of conscience and their relevance to this debate. The right reverend Prelate raised that too in his extremely helpful contribution.

My Lords, I am grateful to the Minister. I was not in the Chamber, and I will pay attention to what my noble friend Lord Onslow said in his reference to my speech. The Minister does not need to shelter behind his albeit formidable presence in answering my two specific questions, of which I gave her due notice. It would be right for her to be kind enough to answer them.

My Lords, I will certainly do so. The Government still have no plans to deal with the issues that the noble Lord has raised. I will say to my noble and learned friend the Lord Chancellor that the noble Lord has once again raised the issue. I will see whether he has a longer answer that the noble Lord would be happy with. The second question was whether I would refer the issues to my noble friend the Lord President; I will certainly do so.

The noble Baroness, Lady Young of Hornsey, and the noble Lord, Lord Hastings of Scarisbrick, both mentioned the importance and relevance of the new Commission for Equality and Human Rights. I was privileged to take through the Equality Act in your Lordships’ House, and I too pay tribute to the work of Trevor Phillips, who has already begun his leadership of the commission. I completely agree with the noble Lord, Lord Hastings of Scarisbrick, that this is a formidable challenge, to which I have no doubt that Mr Phillips will rise. With the help and support of the commissioners, who, in the main, have already been appointed, he will be able to do that.

Yesterday, the ministerial group on which I serve met to address this matter to ensure that we are ready on 1 October to bring the new commission into being. It has a wide remit. It is fortunate in being born of some amazing work done under previous commissions. I agree with the noble Baroness about the contribution that the Disability Rights Commission has played. We will have to help and support the commission so that it can bring into being the new strands of work that we have given it, set against the backdrop of human rights.

I say to my noble friend Lady Whitaker that the issues she raised about children, the plight of patients with mental health problems, problems concerning boys, and matters of religious and non-religious beliefs will be taken forward by the commission. Perhaps I can give her some comfort by saying that the Chancellor has announced an additional £10 million for 2007-08, to help with improving the educational attainment of boys. Although the UK has a problem in that respect, it is not as great a problem as that of many in the OECD, but it needs to be tackled.

The right reverend Prelate talked of the liberty of conscience. I agree with him about conversion by force, which I think we all agree is not conversion. Dealing with the abuse of power is also important. The tradition of enlightenment, expertise and the backdrop of religious faith form the essence of why debates on human rights are so important.

The rebalancing point concerning victims was raised by several noble Lords. Quite often victims feel that their voices are not heard. The advocacy of families that have had horrendous crimes perpetrated on them is also important. I hear what the noble Lord, Lord Kingsland, says about ensuring fairness in trials.

The protection of people is fundamental to the Human Rights Act. The history and traditions that form the Human Rights Act in this country and the work of the European Convention on Human Rights concern the relationship between the individual and the state and how the state, public authorities and public bodies treat those individuals. In our deliberations on human rights we must keep that as our context. It challenges us and brings us up sharp against issues that noble Lords have raised; for example, Article 3—the right not to be tortured—and the deporting of people whom we believe are a real threat and danger to our country but whom, for a variety of reasons, we are unable to prosecute.

I have missed the noble Lord, Lord Goodhart, although it has been very nice to debate with the noble Lord, Lord Thomas of Gresford. I am very proud of the Act. I agree with what the noble Lord, Lord Kingsland, said about the Government needing to do more. We have rightly been criticised for not promoting the Act when it came into being as well as we might have done and, in a sense—I do not mean that negatively—leaving it to the lawyers to own it.

As I speak, I have 15 ministerial colleagues meeting with my noble and learned friend the Lord Chancellor to discuss how they are supporting and promoting the Human Rights Act. Each represents a different department. They are putting together plans to cover the training, guidance and legal advice needed for front-line staff, improving the guidance on the Act on their websites, ensuring that the guidance that we have produced is distributed fully around departments, and ensuring that particular groups of staff have the necessary advice.

The noble Lord, Lord Kingsland, and others referred to the press reporting the way in which the Act has been used. There was the case of a police force and there have been others. They are good examples of why people find it hard to understand the Act and that it has a positive benefit to them, which is why people should be given the correct information about the Act. That is why my noble and learned friend launched a campaign with the title “Human Rights: Common Values, Common Sense”, with a message to many involved in the public sector that if you think about a common-sense response to the issues, one will almost invariably be where the Human Rights Act will take you. That is true in the case of the elderly couple who, after many years of marriage, were told that they would have to go into care in separate homes. Anyone with any common sense looking at that would say that it was inappropriate. So, too, is not publishing the photographs of criminals you are trying to catch. Common sense should play its part, but we need to give people support and guidance. These are not people deliberately trying to use the Act wrongly, but simply lacking the necessary expertise.

I say to my noble friend Lady Whitaker how much I respect and admire the work of the British Institute of Human Rights, which has been a very expert source of help and guidance to me. Our campaign, if I can call it that, is also about opportunities for Ministers and others to talk about the Human Rights Act. My noble and learned friend will be speaking at a teachers’ conference at Easter, and to the Association of Chief Police Officers. I hope to speak at conferences on health and education and to meet different groups and organisations to support their work.

The noble Baroness, Lady Verma, spoke very movingly about some of the critical issues, particularly domestic violence. One in four women is a victim of domestic violence; there is an incident every minute. It costs £23 billion each year in legal costs, social services, medical care, child care, and so on. There is a new plan: 64 special courts will be operational by April. The Home Office is working with 100 multi-agency risk assessment conferences. There are more successful outcomes in the form of guilty pleas; the trend is upward. Nationally, successful outcomes are up from 46 per cent to 65 per cent, and 71 per cent of cases in specialist courts are successful. The incidence of recorded domestic violence is going down. A huge amount of work is going on.

The noble Baroness also talked about data sharing and data protection. This was raised and echoed in other speeches. I am also the Data Protection Minister, so I can talk for a moment about that and would like to make three points. First, a lot of data sharing must be about citizens feeling in control of their own data and taking the opportunity to use data sharing to save time. In many of our systems we assume that citizens’ time is free. We often decide, when shopping on the internet, for example, that we want our data to be retained. That is our choice. Secondly, where the Government retain data, transparency is critical. Noble Lords have raised concerns over the question of transparency, which is incredibly important. That is a bigger and longer debate for another day. Thirdly, data sharing should protect the vulnerable. When, after the Victoria Climbié inquiry, I took through a Bill that had a data-sharing clause—Section 9 of the Children’s Act—one statistic stayed with me. When two professionals dealing with children at risk want to talk to each other, it takes them, on average, two days to find each other. If an address book with shared data showed which professionals were involved with a given family, we could save lives for sure. It is about getting the balance between data sharing and data protection right.

I do not have details of how Ministers have been talking to different communities that feel at risk of alienation, but I will get that information.

My Lords, on the issue of data sharing there is something I did not say, but should have. I believe that there are cases of children being given warning orders by the police. I am not exactly sure what they are, but they go down on record. They expire in time but can be shared with other Governments, especially that of the United States. This can involve visa problems. I may not have got that completely right, but I think I have. Could the Minister look into that as well, please?

My Lords, the only information that I am aware of being shared with the US is passenger records, which I am also responsible for. I have not heard of that, but will of course look into it and see what the reality is.

On ID cards and whether countries have found them useful, there was a very good Channel 4 programme, featuring my right honourable friend Charles Clarke when he went to Estonia. It is very interesting in showing how Estonians have used ID cards as the means of finding out who is looking at their data, and to get information. It is well worth looking at. If noble Lords want a copy of it, I can probably find one somewhere.

Noble Lords spent, quite reasonably, some time on the Bill of Rights. It is interesting that no one talked about repealing the Human Rights Act. I suspect that where the Conservative Party and Justice end up in terms of a Bill of Rights may be different. I know that Justice, in launching its consultation and discussion on the matter, said that it sees the purpose of a Bill of Rights as giving greater constitutional protection to fundamental rights, increasing the scope of rights under the Human Rights Act, emphasising the constitutional principle of the rule of law, building public awareness of constitutional rights protection and drawing attention to the rights and duties of citizenship. The noble Lord, Lord Sheikh, mentioned rights and responsibilities in relation to a Bill of Rights. I very much look forward to seeing what happens as Justice continues its work. From my perspective, I am looking at what I call “human rights plus”, not “human rights minus”, and it is important that all the issues that have been raised are dealt with in that context.

I agreed with the noble Lord, Lord Kingsland, on tribunals and standards of service. I am responsible also for tribunals, so I feel strongly about that issue. On the DCA budget, the legal aid budget will not be cut—it will be flat cash, bearing in mind the efficiency savings that we expect to see from the reforms of the noble Lord, Lord Carter. That should keep legal aid on a sustainable and affordable path. The noble Lord, Lord Goodhart, will know that my noble and learned friend is keen to ensure that civil justice is dealt with properly and appropriately within the legal aid budget. The reform and modernisation that we are seeing across the DCA will generate efficiencies that will make 3.5 per cent savings within the department.

My Lords, did the Minister say “flat cashed”? That of course means a reduction in real terms.

My Lords, I said “flat cash” and the noble Lord knows exactly what it means. That is the official line; I can obtain more information for him if he wants, but I wanted to put that firmly on the record. It has been agreed by the DCA finance department, so I shall say nothing more at this point. However, we are satisfied that we have good resources to take things forward.

The noble Earl, Lord Sandwich, spoke about being a minnow; he is not. He gave a passionate and moving account of Maria. We in your Lordships’ House are all proud of our long history and tradition in wanting to provide refuge to those in need. I also think that we want and need a robust and proper system, including trying to tackle properly and appropriately issues regarding those who do not have a right to be here. It does mean rules. One of the great difficulties—which I experienced during the passage of the asylum and immigration legislation last year—is that although we want that, we can all point to exceptional cases. I make no comment on Maria, because I do not know her case; but I can think of many instances where it is very difficult to make such decisions, and I know that one of the ways is to try and sort out such cases as quickly as possible to give people certainty about the outcome—particularly when children are involved, even if that means that people are going back to another country or the country of origin. That should be done properly and appropriately.

We have just considered the Bill relating to bailiff law; we are bringing together legislation that goes back, I think, to 1652 and the king’s highway. We want to stop an inconsistency of approach—bailiff law has grown up all over the place and people find aspects of it incomprehensible. Some bailiffs can go in at certain times of day, some at other times of day. All those rules are now being made consistent and all bailiffs will be regulated, which is even more important, and allowed into people’s homes only with judicial authority and under strict guidance.

Intercept evidence was raised by the noble Earl, who covered a lot of terrain. We are still looking closely at that issue. There is a clear government commitment to that work, but we must recognise and protect our intercept capabilities. We are reviewing the issues and trying to see whether there is a legal model that provides the necessary safeguards that might allow intercept material to be used as evidence. He will be aware of that.

The noble Baroness, Lady Young of Hornsey, talked about the terrible tragedy of slavery and trafficking, and I pay tribute to her work on what will be an important series of events taking place, right across government, to recognise the 200th anniversary of the abolition of slavery. I will give a tiny plug for the National Archives, for which I am responsible also.

My Lords, noble Lords can go on the website to find some fantastic material which tells in documentary form the history of what happened, the rebellions that took place and what happened in the different countries. All the correspondence and documents have been brought together; I am also proud of the fact that we have produced a lot of material for children in schools, which will be of enormous value.

Across government, we are meeting with amazing contributions from different departments, not only to commemorate, but also to look forward and to recognise the contributions that different communities have made. I recommend a book produced by the Department of Health which celebrates the contribution of the Afro-Caribbean community to the National Health Service over many years—perhaps, particularly over the past 50 or 60 years.

My Lords, I am sorry to interrupt but could the Minster confirm that finally the Government are to sign the European convention on human trafficking and tell us why it has taken so long?

My Lords, I cannot confirm that now but I will get that confirmation or otherwise to the noble Earl. Oh! I have just been told that we are signing it tomorrow. I am not responsible for that, clearly, otherwise I would know. That is good news. Maybe I am responsible.

I pay tribute to the Joint Committee on Human Rights, on which the noble Lord, Lord Lester, and the noble Earl, Lord Onslow, sit. It has done a tremendous amount of work. It is always a privilege to appear before it. I recognise that the issue of statements of compatibility that the noble Lord, Lord Thomas of Gresford, raised is important and indeed an issue that the joint committee has raised with us. As well as a statement, within the Explanatory Notes we provide the explanation of the main human rights issues that arise within the Bill. I will acknowledge, and the Joint Committee observed, that not all Bills have been accompanied by as good an explanation as there should have been, but I am pleased to say that we have made a particular effort this Session to make sure that we do that.

My Lords, during the debate in the other place, the chairman of the Joint Committee asked Vera Baird MP whether the Government would consider having a better standard procedure in the Explanatory Notes. She said that she was personally sympathetic and it looks as though that may happen. Could the Minister take care to follow that up after the debate, because it is very important to the committee?

Yes, my Lords, I will make sure that we look at that. I am extremely grateful, because I have been racking my brains for the past hour trying to remember what was happening around this issue. The noble Lord has just reminded me what it was, so I thank him. I know that it has been raised elsewhere and I am grateful to him for raising it now. I am going over my time because I have been interrupted, so I think that I am allowed to; anyway, both Front-Benchers went over their time. I have nearly finished.

The noble Lord, Lord Lester, talked about the backlog at the European Court of Human Rights. There is a meeting today in San Marino at which my officials are discussing that issue. I particularly wanted to pay tribute to the noble and learned Lord, Lord Woolf, who has been very involved in trying to help the court to deal with the backlog. On 1 January the backlog stood at 89,000 cases. I understand that a number of cases have been removed from the list, if I can put it like that.

The noble Lord has come up with some pragmatic approaches which we are pushing hard to make happen—for example, an application form. Some 12,000 letters were destroyed last year because they did not fit the criteria, and it will be 15,000 this year. An application form might help, as might making sure that when a decision is made it is communicated, so that countries will know what the effects will be; there is clearly a precedent for that. These are pragmatic and practical ways in which the group of wise persons who produced the report last November, of which the noble and learned Lord, Lord Woolf, is a member, has been able to try and deal with some of the questions.

We are also hoping that the Russians will ratify Protocol 14, which they signed in May last year. That will enable the filtering to be done by one judge as opposed to several, which enables the court’s work to speed up dramatically.

Finally, I will address the matter of the individual petitions to the UN; the noble Lord, Lord Lester, raised it. We are looking at that. As he has said, the optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women enables individual claims to go to the UN. One has been rejected and there is a second one. I am not going to get information about what has happened to that until the autumn, so reviewing whether that works or not is going to take me longer. I can say to the noble Lord that it is my responsibility and I will make sure that we deal with it.

I am grateful to noble Lords for the fascinating debate; I could spend hours talking about all the issues raised, so perhaps we will have more debates that take some of those issues forward.

My Lords, yesterday evening, when I was on my feet at a quarter to 10 o’clock, a number of exhausted Peers began to moan and groan. I am very sorry that I taxed their patience. We have now had a three-hour debate and no one has had lunch; indeed, I have not had anything since a bowl of porridge at breakfast. That is a very good way of disciplining all of us, better than moaning and groaning.

I do not intend to tax anyone's patience but perhaps I may say one or two things very quickly. First, I apologise to the noble Lord, Lord Hastings. It was my bad luck to be out of the Chamber for two minutes when he referred to something that I had said. I am very sorry about that. Secondly, I should like to thank everyone for taking part in a very well informed, very wide-ranging, sometimes provocative and fascinating debate, which will not be reported in the newspapers at all. That is a great pity, because many of the things that have been said are of great public importance.

I should like to say to the self-appointed “Peer in the street”—although I say to myself, which street, and which street in which city?—the noble Lord, Lord Patten, and to the right reverend Prelate the Bishop of Chelmsford that I am as opposed to totalitarianism, whether it is secular or religious or in the guise of secularism or religion, as they are. I wonder whether the right reverend Prelate the Bishop of Chelmsford meant exactly what he said when he seemed to imply that there was no moral justification for interfering with cannibalism or human sacrifice. I would say that, these days, we certainly want to tackle abuses and not have, in the name of diversity or anything of that kind, a hands-off approach.

As a liberal I believe above all in the existence of human fallibility. I keep on my wall—carved on a Welsh slate, because the noble and learned Lord, Lord Howe of Aberavon, brought it to my attention—my creed. My creed is:

“The spirit of liberty is the spirit that is not too sure that it is right”.

I am not sure that everyone in the human rights movement or in churches adopts that creed but that is my definition, and I think John Stuart Mill’s definition, of the spirit of liberty that animates, in my judgment, the Human Rights Act.

As for a British Bill of Rights, I end simply by saying that a philosopher whose work I do not normally respect, Wittgenstein, ended a vast tome with these words: of those things of which one cannot be certain, one must needs be silent. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.