|Scope for a Bill of Rights
Mr. Browne: I want to make it clear that the hon. Gentleman is aware that the document before him is a consultation document; it is not an advice document from the commission to the Government. I agree that it is not possible to have an informed debate on a Bill of Rights without referring to individual rights. As a Minister, I am in a particular position in relation to the matter, but I want the hon. Gentleman to be clear that the document is for consultation and is not developed advice.
Mr. Davies: I accept that. My comments will be part of the consultation exercise, so it is doubly important that we should not miss this opportunity to state in no uncertain terms what we think about the suggestion; I shall do that.
The proposed Bill of Rights suffers from a number of shortcomings. Part of it is a little platitudinous and otiose. For example, it states that we are all equal under the law. That is true and no one disagrees with that, but I recall that we were given that right by Magna Carta; it probably has been restated many times since, so that does not take us far down the road.
The Chairman: The hon. Gentleman is wrong. Magna Carta did not extend to my constituency.
Mr. Davies: Indeed, Magna Carta did not extend to Scotland, but it extended to Ireland. I realise that to you, Mr. McWilliam, English history before 1603 is not worth going into.
The Chairman: Order. The Prince Bishop of Durham would not accept it.
Mr. Davies: I assure you, Mr. McWilliam, that Magna Carta extended to all the domains of King John at the time, which included part of France—although he had just lost Normandy, of course—and certainly included Ireland of which he was then Lord.
Column Number: 018The protection of Magna Carta may not have applied at the time of your ancestors, Mr. McWilliam, or those of the Minister, but they applied to mine and to those of the representatives of the Northern Ireland parties in the Committee. We inherited those rights a long time ago.
There is an unfortunate tendency in the document to a lack of precision and to rights being formulated without it being clear who is expected to deliver them. If one thinks of a right as a citizen's asset, who has the corresponding liability? Is it always the state—the hon. Member for North-East Derbyshire has asked about that—or is it someone else? That is not always clear. There is a tendency to formulate rights that are unrealistic and illusory. The Minister made a point along those lines and he may agree with what I am about to say on the subject.
The best example is in section 14(d)1 which states:
From whom are they entitled to that? Is the state supposed to guarantee that, or is it the employer or parent? Who has the corresponding responsibility? What is an adequate standard of living? I foresee endless litigation about that because there is no satisfactory, unambiguous meaning in that provision. Section 14(c)1 states:
That is a particularly curious way of expressing it. Only God can assure us of that. If the right had been for the highest attainable standard of physical and mental health care, it would no doubt have been the Government to whom we would have looked. In England, we should be grateful to be assured of the highest attainable standard of physical and mental health care at present, when the national health service is breaking down. Again, what is intended by such a right? Who will deliver it? How is it to be defined? It is extremely inadequate and rather dangerous—perhaps pretentious would be the right word—to hold out to people the prospect that they can be assured of an adequate standard of living and the best possible health, when in fact such matters are not deliverable in practical terms; they are certainly not easily definable and, therefore, not properly justiciable.
A more serious charge from the legal point of view can be delivered against some of the provisions. Let us take one that is probably influenced more than any of the others by political correctness. Consultation clause 5 states:
None of us is in favour of violence against women, but I hope that none of us is in favour of violence against men. The draft wording may be politically correct, but it lacks the even-handedness that should be absolutely essential in any corpus of law worthy of the name, and certainly in any foundational legal document such as a Bill of Rights.
Another criticism of the document is that it is presumptuous, in that it takes the creation of a Bill of Rights into areas that traditionally have always been a matter for determination by democratically elected
Column Number: 019assemblies. For example, criteria for who should be allowed to vote are set out in consultation clause 2 on democratic rights. Incidentally, I noticed that the intention of the commission is that the Bill of Rights should state that everyone aged over 17 should have the right to vote. Later in the document, children are defined as anyone under 18, so there seems to be a slight inconsistency.
Consultation clause 2 states:
It is extraordinary that a Bill of Rights for one province of one country should determine the method of election to the European Parliament. It is extraordinary that the controversial and difficult issue of whether we should have proportional representation to the Westminster Parliament should be decided through a Bill of Rights, let alone a Bill of Rights that covers only one part of the country. Frankly, the draft goes far beyond areas to which any Bill of Rights should properly have regard.
Mr. Hunter: Does my hon. Friend share my concern that what appears to emerge from the pages of the consultation document is, if I may use the expression, a prostituting of a Bill of Rights in the pursuit of wider political objectives?
Mr. Davies: My hon. Friend uses strong language that I would not use in the context. However, with the best of intentions, the commission has produced a document that is not a viable prospective Bill of Rights. It would produce far more problems than it would solve and would lead to a great deal of unnecessary and sterile litigation, which is litigation that produces no valid or useful result. It would make no contribution to a sense of justice and would disappoint people. People would feel cheated when they found that the extravagant promises held out to them in a Bill of Rights could not be delivered in the way that they had been led to expect.
Lady Hermon: I hope it will be some consolation to the hon. Gentleman to know that the actual terms of reference with which the human rights commission is obliged to work by virtue of the agreement actually ensure that the commission consults and advises on the scope of rights that are supplementary to the convention, dealing with circumstances that are particular to Northern Ireland voting rights. With the greatest respect to women, those rights are not peculiar to Northern Ireland; they have them in the rest of the United Kingdom.
Mr. Davies: I am grateful for what I take to be a supportive argument. I entirely agree with the hon. Lady. Voting rights and women, and many other factors including health care, are not matters that are peculiar to those living in Northern Ireland.
I was immensely surprised by consultation clause 19. Perhaps I could quote it because the Committee may want to reflect on it:
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That is quite an extraordinary statement to make. It implies that the Westminster Parliament, which would enact the Bill of Rights, should not be allowed to make a change without the consent of the Northern Ireland Assembly. That is of course impossible, because it runs counter to the fundamental principles of our constitution, which is that the Queen, or King, in Parliament is sovereign; it follows that no Parliament can bind its successor. I take it that the statement would have no constitutional force. Alternatively, it is not intended to be taken seriously at all because whoever drafted it knew perfectly well that such an attempt to entrench the Bill of Rights would be constitutionally ineffective, in which case the clause would give a very deceptive impression to those who read it, who may not be quite as au fait with constitutional law as those who sit on the commission.
I have already said that I believe that the commission has behaved with the utmost integrity and public-spiritedness in the matter, and I know that several distinguished lawyers sit on the commission. Their motivation cannot possibly have been deliberately deceptive, and the clause cannot have found its way into the draft through incompetence. I am mystified as to how the clause got there. It seems to me that whatever the explanation, it was something of an egregious error. I am quite concerned about the document as a result.
For the moment, I have no other criticisms to make of the text that is before us; at least, none that need detain the Committee this afternoon. However, I think that I have said enough to indicate that we have an open mind on whether there should be a Bill of Rights for Northern Ireland or not. We will continue to follow the consultation exercise and be guided by the evident opinion in Northern Ireland on that subject. We will look again very closely at the four criteria that I set out earlier. Whether the answer to that question is positive or negative, we are convinced that the text as put forward at the present time is not at all acceptable. There would need, at the very least, to be a substantial modification before it could be seriously considered.
|©Parliamentary copyright 2002||Prepared 27 June 2002|