Skip to main content

European Convention on Human Rights

Volume 609: debated on Monday 9 May 2016

Motion made, and Question proposed, That this House do now adjourn.—(Jackie Doyle-Price.)

I am most grateful to Mr Speaker for giving me the opportunity this evening to raise the issue of the UK’s membership of the European convention on human rights. I want to focus on the issue in the context of the referendum that will take place on 23 June—and let me say, as a Brexiteer, that it is good to know that a fellow Brexiteer will be responding to the debate.

I should, at the outset, set out my position on sovereignty and human rights. I want our Parliament to make the laws to which United Kingdom citizens are subject, and I want our independent judges to interpret those laws without fear or favour. I believe that if Parliament does not like a court’s interpretation of the law, Parliament should be able to change that law, prospectively but not retrospectively. I also believe that supranational courts should not be able to legislate for us by judicial means. If the wording of a treaty is to be changed, it should be changed by an amending protocol and not by judges.

That is why I support the European convention on human rights, but am very uneasy about the way in which it has been extended by judicial activism into fields that Parliament has never approved—a prime example, obviously, is giving votes to prisoners, an issue which the Prime Minister told us made him feel physically sick—and that is why I am so keen for the United Kingdom to take back control over the making and interpretation of our laws. Currently, 60% of our laws are made by the European Union, and they can be changed at will by the European Union against our wishes, because even if all United Kingdom Members of the European Parliament vote in one way, they can muster fewer than 10% of the votes in that Parliament.

I applied for this debate because I am very confused about Government policy on UK membership of the European convention on human rights. I read the speech delivered by my right hon. Friend the Home Secretary to the Institution of Mechanical Engineers on 25 April, entitled “The United Kingdom, the European Union, and our place in the world”. In that speech, my right hon. Friend set out what she considered to be the principles for Britain’s membership of international institutions. She said:

“We need…to establish clear principles…Does it make us more influential beyond our…shores? Does it make us more secure? Does it make us more prosperous? Can we control or influence the direction of the organisation in question? To what extent does membership bind the hands of Parliament?”

Having asked all those questions, she said that

“the case for remaining a signatory of the European Convention on Human Rights—which means Britain is subject to the jurisdiction of the European Court of Human Rights—is not clear.”

She went on to say:

“The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign”


“If we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.”

If we want to have influence, we should bear in mind that tomorrow is the eighth anniversary of the imprisonment of seven Bahá'i leaders in Iran. They are prisoners of conscience, and were imprisoned as a result of their religious belief. That is an unquestionable violation of their human rights.

Outside Europe, the United Kingdom’s membership of the European convention on human rights sends a strong signal of our continued commitment to upholding and advancing human rights globally. Is there not a good reason for our being a member of the convention when we can do something for those Bahá'i leaders in Iran who have been violated and persecuted because of their beliefs? That is one example.

The hon. Gentleman has made his point very well. However, I am concentrating on what the Home Secretary said. She seemed to be announcing a Government policy that the United Kingdom should leave the convention but stay in the EU. Her speech led to an urgent question, which was granted by Mr Speaker, and I—and other people who were present on that occasion—could not understand how we were going to be able to deliver the Home Secretary’s agenda on human rights if we remained in the European Union and subject to the EU charter of fundamental rights.

Questions were raised by Members during those exchanges, and it became clear that the Home Secretary—and, indeed, the Government—were indeed rather muddled about this. One of the questions that was asked was whether membership of the European Union required us to be a party to the European convention on human rights. The Home Secretary was not answering the urgent question. The Attorney General answered, as a Law Officer. He said:

“It is not…in any way clear that membership of the European Union requires membership of the European convention on human rights…there are considerable legal complexities”.—[Official Report, 26 April 2016; Vol. 608, c. 1291.]

My hon. Friend the Member for North East Somerset (Mr Rees-Mogg) then cited article 6.3 of the treaty on European Union, which states:

“Fundamental rights, as guaranteed by the European Convention…shall constitute general principles of the Union’s law.”

He went on to refer to the fact that the Commission had said that any member country of the European Union that sought to disengage from the European convention on human rights might have its voting rights suspended.

Then, as so often happens in this House, my hon. Friend the Member for Wellingborough (Mr Bone) asked a really pertinent question. He said:

“Can a country remain in the European Union and still come out of the convention? What is his legal opinion on that?”

The Attorney General replied:

“As I have suggested, the legal position is not clear.”

He went on to say that he did not

“have the time to go into all the ins and outs of that particular question now, but I suggest it would also be wrong to say that it is clear in the opposite direction.”—[Official Report, 26 April 2016; Vol. 608, c. 1301.]

So that was what the Government were saying about this particular matter.

This morning, I heard the Prime Minister chiding Brexiteers for having no clear comprehensive plan for life outside the EU, but that was a classic case of the pot calling the kettle black. As I have just said, the Prime Minister and the Government have no clear plan for life inside the European Union if there is a remain vote on 23 June. They do not know what will happen to their human rights agenda. There are many other examples beyond that.

It is a failure by the Government not to address this issue up front, and to leave it hanging in the air pending the referendum. We have had some quite clear advice from lawyers of great distinction. For example, Lord Woolf said:

“You can legally reconcile the doctrine of the sovereignty of Parliament with the European Convention on Human Rights. You cannot do that with regard to the European Charter, because the position there is that you can trump a statute.”

Lord Woolf was being quoted there in the House of Lords paper 139, which was published today. We now have a situation in which the Home Secretary seems to be arguing that we would be more secure if we left the convention on human rights but retained European law relating to fundamental rights.

I should like to give the House some examples of how EU law is undermining our security. In The Sunday Telegraph yesterday, it was reported that six Algerian terror suspects with links to Osama bin Laden and al-Qaeda were to be allowed to stay here after a 10-year battle in the courts. I think that the Under-Secretary of State for Justice, my hon. Friend the Member for Esher and Walton (Mr Raab) has made the point that the number of people fraudulently trying to gain entry into the United Kingdom has almost doubled in a year. That is because those people realise that we do not have the power to turn them away at our borders if they are waving a European Union identity document.

I was speaking at a conference on European freight security last week, at which it became apparent that we are not allowed to X-ray lorries in Calais to see whether they contain illegal migrants because it might be damaging to the human rights and health of those illegal migrants. That is another example of how human rights laws undermine our ability to keep our borders secure. Another example is that we are not allowed to take DNA samples from migrants who refuse to give their fingerprints when they enter the European Union, which is expressly prohibited by the Eurodac regulations.

Then we have the example, which came out a couple of months ago, of Abu Hamza’s daughter-in-law. We found out that she was his daughter-in-law only through a freedom of information request. An advocate-general in the European Court of Justice said that it was in principle contrary to European Union treaties to remove the lady from the United Kingdom, notwithstanding the fact that she had been convicted and sentenced to a year’s imprisonment. It was subsequently revealed that she had been convicted of attempting to smuggle a Sim card to Abu Hamza while he was in a high-security prison, but even that grave crime was insufficient to allow the courts to remove her from the United Kingdom because of the intervention of the European Court of Justice, which exercised its powers under the EU’s fundamental rights laws.

I cannot understand how the Home Secretary can consistently argue that we should stay in the European Union when the logic of everything she said in her speech was that we should be leaving the EU. It is potentially misleading for members of the public to think that they can have their cake and eat it by leaving the European convention on human rights while still remaining subject to the European Court of Justice.

Perhaps all these complexities explain why so little progress is being made on our manifesto commitment to leave the European convention on human rights. When the Minister replies, I hope that he will make it clear that the Government have not gone cold on that.

I hope that the Minister will be able to respond to that. We had a debate towards the beginning of this parliamentary Session in which the Minister made it clear that the Government intended to bring forward a consultation document on this sooner rather than later. I think he envisaged that that would be before Christmas, but it then became after Christmas and now it is after the referendum. They were talking about a consultation document, so why can we not have even a discussion? I fear that it has been kicked into the long grass on the instructions of No. 10, because it was realised that it would lead to lot of awkward questions. The Government have demonstrated throughout the course of the referendum debate that they are quite happy to ask hypothetical questions and complain when people are unable to answer them, but they are unwilling to respond positively to the questions that people are asking them.

I am sorry that I missed the first part of my hon. Friend’s speech; I very much look forward to reading it tomorrow. While the view of the general public is that infringements on the rights of Parliament are the result of the intervention of the European Court of Human Rights, will my hon. Friend confirm that even if we were to leave the European convention on human rights and remain in the EU, we would still be subject to the same kind of interference from the European Court of Justice?

Yes. It would be not only the same type of interference, but graver. That is the conclusion of the House of Lords EU Justice Sub-Committee, the report of which I referred to earlier and came out today. The European Court of Justice has much greater powers and can effectively remove legislation from our statutes. The European Court of Human Rights is much more restricted and can deal only with individual cases, which then can be the subject of negotiation and we can ultimately exercise more discretion or have a greater “margin of appreciation”, to put it in legal language. As Lord Woolf was saying, the European convention on human rights may not be perfect, and we may not like the way in which it has been changed by judge-made law, but most people would agree with its actual wording.

The European charter of fundamental rights is anathema. You may recall, Mr Deputy Speaker, that when the charter was first brought forward and the then Labour Government were saying that it would have no application to the United Kingdom, the then Minister for Europe, the right hon. Member for Leicester East (Keith Vaz), memorably said that it would have no more status in UK law than a copy of the Beano. That just illustrates the speed with which change comes about. One moment we think something has been passed which is not going to apply to us and now we find, on the highest authorities in the land, that we are indeed subordinate to the European Court of Justice and that the European fundamental rights agency and charter are supreme. My plea to the Minister is: can we get this sorted out? Will he confirm that the UK would be in an absurd position if it wanted to stay in the EU but denounced the European convention on human rights?

I congratulate my hon. Friend the Member for Christchurch (Mr Chope) on securing tonight’s debate and pay tribute to his recent work as chair of the UK delegation to the Parliamentary Assembly of the Council of Europe. He is very knowledgeable in this field and he made a very powerful speech.

For all the contentious debate about human rights, few argue against the common-sense list of rights set out in the text of the European convention on human rights. The Government are and will remain committed to the protection of those rights. The United Kingdom was a founder member of the convention and was instrumental in its drafting. I have said on a number of occasions that those who suggest it was somehow an exclusively British creation are overegging the pudding or rewriting history. The negotiation of the convention saw an interesting contest of views between the common law and civil law traditions, as evidenced clearly in the travaux préparatoires of the convention, which are available online. The convention—the product of those negotiations —reflects the compromise between those two very different traditions and approaches.

Nevertheless, the concerns that have arisen about the convention are far less about being objections to the strict list of rights set out there; they lie more with its interpretation and application, which has been expanded and extended exponentially, well beyond what the original drafters intended. That is partly the result of judicial legislation by the Strasbourg Court, but it has been compounded by the design and structure of the Human Rights Act. It should be pointed out at this stage that serious criticisms have come from Labour Lord Chancellors, lawyers across the spectrum and senior British judges, as well as from Government Members. These problems have fuelled a rights inflation that has undermined this country’s liberal tradition of freedom and its approach to human rights, which is founded in Magna Carta and in the thinking of great British philosophers from John Locke and John Stuart Mill through to Isaiah Berlin. We have shifted towards imposing more and more obligations on government that require it to provide, rather than merely insisting that it refrain from acting in certain arbitrary ways, which was very much the history and tradition of the liberal approach. These developments have exposed us unnecessarily to judicial legislation at home and in Strasbourg that takes decisions out of the hands of this House.

The Minister is making a powerful critique of the convention, so perhaps he can now tell the House when we are going to fulfil our manifesto commitment to get out of it.

I will come on to the manifesto commitment and resolve to deliver on it shortly.

I want to make this point very clearly: there are legitimate different views as to what we should include in a list of fundamental human rights. There are liberal models, Marxist models and a social democratic tradition, which informs an approach to human rights. There is even a shift from individual rights to collective ones, including environmental rights. We can take different views on that, and hon. Members will, but whatever our view, if we are a democrat, the legislation and the definition of that list of rights must be made by elected representatives who are accountable to the British people. That is the objection to a rights inflation through judicial legislation—whether it takes place at home or abroad. It corrodes the most basic principles of democracy, and that was a point that my hon. Friend made very clearly and powerfully.

I am very grateful indeed to the Minister for allowing me to intervene at this late hour. The Minister will know when he reads through the Belfast agreement signed on Good Friday—I am sure that he has studied it at length—that the European convention on human rights is an integral part of that agreement and that that agreement was voted on in a referendum in Northern Ireland and also in the Republic of Ireland and thousands and thousands of people supported that agreement. Where does the Minister think it would leave the peace settlement in Northern Ireland if this country were to withdraw—and I hope that it does not—from the European convention on human rights?

I will come on to address that point very squarely in a moment. I hope to be able to give the hon. Lady the reassurance that she needs.

I will, if I may, return to some of the problems of the democratic deficit that have been created. One example that has been mentioned by Members on a number of occasions is the creeping extra-territorial extension of the convention. The negotiating record of the European convention—the travaux préparatoires—is very clear on that point. No one intended that those making military decisions on the battlefields of Iraq and Afghanistan should or would be subject to the convention. That area was rightly left for the law of armed conflict, including international humanitarian law.

Another example, to which my hon. Friend referred, is the situation whereby increasingly elastic interpretations of article 8 rights to family life override the very clear public interest in deporting serious foreign criminals. The Government are clear that where there is a real risk of torture to an individual, they should not be deported, but the right to family life is an inherently qualified one and must be balanced against the rights of others. That balance, which should properly rest with Parliament, has been tipped out of kilter too much and by too great a degree by the courts. This is not to attack the ECHR. In truth, those making that point are being faithful to the convention, because paragraph 2 of article 8 makes it crystal clear that Governments should be able to qualify the right to family life to take effective law enforcement measures. In this regard, it is the judicial branch, which is, through creative extrapolation—that is the most generous gloss that can be put on it—departing from the convention. Those are two illustrations. There could be many more, but we have limited time this evening.

There are two strong reasons why this Government will reform the UK’s human rights framework, and with it, our relationship with the Strasbourg Court. The Government were elected with a clear mandate to deliver that reform, and I can confirm to my hon. Friends that we remain absolutely resolute about delivering on that pledge.

Our proposals will remain faithful to the principles in the European convention—I hope that the hon. Lady will be reassured on that point. Our focus will be on restraining and restricting the expansion of rights by the Strasbourg Court and the Human Rights Act, without proper democratic oversight.

If the hon. Lady will give me more of an opportunity to address her concern.

As the 2015 Conservative party manifesto pledged, the Government will repeal the Human Rights Act and replace it with a British Bill of Rights. Our aim is to protect fundamental rights, prevent the abuse of human rights law and restore some common sense to the system.

My hon. Friend asked for clarification—the hon. Lady did as well—on the Government’s position on the European convention. Let me repeat what I and the Justice Secretary made clear at oral questions towards the end of last month. Although we cannot rule out withdrawal from the convention forever, that is not part of the proposals that we are finalising for consultation. We aim to achieve reforms while remaining members of the European convention. Our proposals will help restore a more balanced separation of powers between the proper role of the courts and greater respect for the Supreme Court in this country, and also the proper role of the Legislature and of Parliament.

I am extremely grateful to the Minister for giving way. Two points require clarification. The Minister appears to have completely contradicted the line taken by the Home Secretary, for whom I have enormous regard. She clearly stated in this House that it was her wish that we would withdraw from the convention. The Minister can confirm this evening that that is not Government policy—that there is no intention of this country withdrawing from the European convention on human rights. As for a British Bill of Rights, would that extend to Northern Ireland, or does Northern Ireland have to come up with its own formulation?

On the position on the convention, I think the hon. Lady will find that the Home Secretary’s remarks were made not in this House, but elsewhere. The Home Secretary is, of course, entitled to her view; there is a degree of licence and latitude in the current debate on the EU. What I have explained clearly to the hon. Lady is the Government’s position on the ECHR. On the application to the devolved Administrations—I understand the hon. Lady’s particular concerns relating to Northern Ireland—obviously we will consult fully, including with the devolved Administrations. We are mindful of the interrelationship of the convention with, and its effects on, the Belfast agreement, which she mentioned.

Critically, our reform agenda is not about eroding people’s fundamental rights. The United Kingdom has a proud tradition of respect for human rights that goes back long before the Human Rights Act 1998, and long before the European convention. Our history of protecting human rights at home and fighting for them abroad stretches back over 800 years to Magna Carta, and even before that, in truth.

We will take no lectures from the Labour party on this front. It was the last Labour Government who introduced identity cards and proposed 90 days’ detention without charge.

In stark contrast, the last Conservative-led Government scrapped identity cards and cut pre-charge detention. The reason why it is relevant, as the right hon. Lady should know, is that actions speak louder than words.

I will not give way, because the time I have left is so limited. This Government also brought forward the Modern Slavery Act 2015. We have transformed the fight against sexual violence in conflict, persuading more than 150 states to agree for the first time that sexual violence should be recognised as a grave breach of the Geneva conventions. This is a record that we can be proud of, and are committed to building on. Our commitment will not falter or fail, but we need to restore some credibility to human rights, which many people in this country increasingly view as dirty words—an industry or bandwagon for lawyers, rather than a tradition to take pride in. We can do that by restoring common sense to the system. We are confident that we can deliver our common-sense reforms within the bounds and parameters of the European convention.

We have already sought and listened to views from practitioners, non-governmental organisations, academics and politicians right across the entire United Kingdom. We know there has been consistently strong public support for these measures. We will consult fully on our forthcoming proposals before introducing legislation, and I know that my hon. Friend the Member for Christchurch will, as ever, bring to bear his considerable expertise and experience at the Parliamentary Assembly of the Council of Europe as we proceed with the Bill in the House.

Does my hon. Friend agree that we will be much more able to implement his agenda if we leave the European Union?

The relationship between the convention and the EU is complicated; we risk shedding more heat than light on the subject by conflating the two. It is certainly true to say that if we pulled out of the convention altogether, it would be something of an open invitation to the Luxembourg Court to fill the vacuum.

Question put and agreed to.

House adjourned.