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Is he not suggesting that any legislation that adds to the protection that we enjoy, collectively, must be set against the protections that we expect people to have, such as the right to a fair trial, and to be considered innocent until proved guilty? If we try to set the one against the other in a blanket way, we run into danger.

Vera Baird: Yes, as far as I am concerned, that is an appropriate analysis of how we should approach the issue. Of course, balancing can be a matter of opinion, and it is a good thing that we have the framework of the Human Rights Act, not only to help us and in our own views, but to help the courts to try to get it right. Take a situation that is almost impossible to manage, such as a case in which the intelligence services “know” someone to be involved in a terrorist plot. Perhaps there is evidence in a form that the criminal courts would accept, but the price to pay would be the loss of an agent’s cover, and loss of the leverage to disrupt what might end up in multiple murder. Or perhaps the evidence is not in that form, but is of a kind that might convince an independent scrutineer of the terrorist legislation
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that it would be justifiable to use the evidence to detain somebody. Under the Anti-terrorism, Crime and Security Act 2001, which was the Government’s first attempt to get the balance right in near-impossible situations of that kind, the evidence that was produced did satisfy the scrutineer, in each and every case.

However, the House of Lords found the Government’s power to detain to be unlawful. They found it discriminatory, as it was an extended immigration detention power, and so only usable against a foreigner, although there were British terrorists, too, and they found that it was therefore disproportionate in its effects on the foreign community. The same rationale was used to detain people under control orders in the Prevention of Terrorism Act 2005. Those put the balancing powers of the Human Rights Act to the test, but the Act is there to be used for balance. Sometimes the courts say that the Government have got the balance right, and sometimes they say that they have got it wrong. In those extreme situations, the Government are limited in what they can do, but they have the backing of the duty to protect the public to allow them to do what we hope is enough. The Act provides a workable, desirable, demonstrably ethical framework within which hugely difficult decisions can be taken as fairly and as transparently as they can ever be.

Returning to more peaceful concerns, let me give an example of human rights at their best. In “Something for Everyone: the impact of the Human Rights Act and the need for a Human Rights Commission,” a piece of research carried out by the British Institute of Human Rights a few years ago, Emily Holzhausen from Carers UK is quoted. She says, speaking of the time before the Act:

With its concept of balancing rights, the Human Rights Act is an ideal tool to use. It does not negate the essential humanity of any participant in a situation, but it helps to ensure that one person’s rights and freedoms do not override another’s so completely that there is little left of the second person’s rights, or little respect for their dignity. That is how we want human rights to be used in public services—to frame thinking, and to guide judgments that result in fairness to all parties, so that the outcome is common sense. That might not be so readily achievable without a framework of rights for us to reason through.

To make all those points clearer, last week the Lord Chancellor launched a campaign, “Human Rights: Common Values, Common Sense”. It will take two forms. First, Ministers will make the point that human rights are our values and are common sense. Today’s debate is part of that, in case anyone had not guessed. Misapplication of our rights, so that they appear not to accord with our values and common sense, is a recipe for ensuring that faith in them declines, and ensuring that their value to the public is weakened. That will put those rights under threat, and where that has
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happened—I detailed some examples—the people involved are hard-pressed front-line officials who have tried to do a proper job. It is our Department’s job to make sure that people who have to apply, interpret and implement human rights law are fully equipped to do the job. We have partly done that, including by making available a toolkit to help people operate the legislation properly, but clearly we have not done enough.

The second element of the campaign will be a concerted programme of reaching out to key services—to the police, local government, the health service and a multitude of others—to offer people as much help and support as we can when they face those difficult problems, and to offer them advice on how to come up with common-sense solutions based on human rights. My noble Friend Lord Falconer recently met the leaders of the Association of Chief Police Officers, and we are grateful for their early support. We intend to hold such meetings with many other, similar bodies.

To move forward, we argue that although the Human Rights Act incorporated the European convention on human rights into UK law for the first time, those rights are deeply and profoundly British. They are there to protect the public, not to put people at risk. They are there to benefit the majority, not just minorities. Human rights are for the many, not just the few. As Lord Falconer characterised it, the campaign is about moving from nonsense to common sense—a short phrase but a big step, and a step that we are determined to take.

6.49 pm

Mr. Henry Bellingham (North-West Norfolk) (Con): First, I ought to declare my interest as a qualified barrister who practised for about 10 years. I welcome the debate, which the Lord Chancellor flagged up in a speech on human rights at Manchester university on 9 February:

He will be disappointed by the number of Labour Members who have come to the House this evening to play a part in that debate. I am glad, however, that there are more Opposition Members than Government Members in the Chamber.

I welcome this debate on a very important subject indeed. The first duty of any Government is to protect the country’s security, but that has become an ever more demanding challenge. The rise of international terrorism, the mass movement of people and the transformation of communications technology, which makes it much easier for terrorists to plan and co-ordinate their campaigns, make it far harder for Governments to protect their citizens. In the west, the phenomenon of the suicide bomber is relatively recent—in the middle east, of course, it is nothing new—and such individuals are prepared to kill vast numbers of innocent people using whatever weapons they can lay their hands on. Thwarting the terrorist threat is an awesome responsibility, but it is the first duty of any Government.

The other great challenge is to protect people’s liberties and human rights; otherwise democracy and freedom will be undermined. To balance those two responsibilities, compromise or a trade-off are required. For example, advances in computer science, information storage and
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satellite monitoring systems make it easier than ever before for powerful Government Departments and agencies, whether public or private, to keep tabs on citizens and other people. Our citizens must therefore deal with an expanding array of increasingly complex bureaucracies that intrude into their lives on a scale and in a manner that previous generations would never have accepted or agreed to. The Opposition accept that the fight against terrorism inevitably means that the state must take new powers of surveillance and enforcement. We accept that the relationship between individual citizens and the powerful institutions of the state must change in response to changing circumstances, but it remains a vital requirement that any free and democratic society should go out of its way to protect those basic rights and liberties. Indeed, a free society is the best protection against terrorism and crime.

As for the Government’s response, they have been hyperactive since 1997, and 54 criminal justice Bills have been introduced. The Minister admitted in exchanges with me in a recent Adjournment debate in Westminster Hall that 3,000 new criminal offences have been added to the statute book. We support many of those new laws, but unfortunately much of the Government’s legislation has undermined human rights, as it is authoritarian and ineffective. There was an ill-judged attempt by Her Majesty’s Government to criminalise religious hatred, and we are highly sceptical of some of the new powers in the Regulation of Investigatory Powers Act 2000. We oppose the Government’s attempt to undermine the right to trial by jury, and we oppose, too, the more draconian powers in the Civil Contingencies Act 2004. We oppose the 90-day detention limit, and we strongly oppose the plans of Her Majesty’s Government for identity cards.

In addition, we have become a society in which Big Brother watches our every move. For example, only last week, Home Office Ministers agreed at an EU Council of Ministers meeting that police across Europe should be given free access to Britain’s DNA, fingerprint and car registration databases. In due course, there will probably be a Euro-wide database, but the UK has by far the largest criminal DNA database in the world. Indeed, it is 50 times the size of the French equivalent. It has 4.2 million registrations, and that number is increasing by 0.5 million a year. The Home Secretary cannot even ensure the proper registration of criminal convictions of British nationals in the EU, so why is he pressing ahead with a scheme without any guarantees or safeguards in place?

Mr. David Heath (Somerton and Frome) (LD): I am glad that the hon. Gentleman made that point, because many of us are enormously concerned that the British DNA database does not consist only of data collected from convicted criminals, or even data collected from people who have been charged with an offence. It contains data from people who have been arrested, but who may not have been charged or who have appeared in court and have been found not guilty. That information is being put into the European system without any sanction by Parliament or, indeed, the European Parliament.


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Mr. Bellingham: The hon. Gentleman is spot on, as he is on so many occasions. Our database is the biggest in the world, with 50 times as many registrations as the French database, because we have defined it that way.

I wish to examine the context in which the Human Rights Act operates. The answer to the question of whether it helps to protect our citizens from ill-thought-out authoritarian legislation is manifestly “no”. As for the question of whether it acts as a restraining influence on the Government’s illiberal tendencies, I submit that it certainly does not do so. Of course, the Act has resulted in some positive outcomes, including those mentioned by the Minister. I would add the decision whereby the right of an elderly married couple not to be kept apart in separate care homes was upheld. However, that is common sense, and it should never have been a problem in the first place. We welcome the right of families of the deceased to be represented at coroners’ inquests. The Human Rights Act has had positive outcomes, but does it help or hinder the fight against crime and terrorism? Does it help to bring criminals and terrorists to justice? Unfortunately, in our judgment, the answer is “no”. The Assets Recovery Agency, for example, was forced to spend millions of pounds fighting legal challenges brought by criminals under the Human Rights Act, thus ensuring that many cases are bogged down for years. The backlog in the courts has grown, with 146 incomplete claims. The agency’s director has directly blamed the human rights “bandwagon” for thwarting efforts to recover assets.

Dr. Julian Lewis: Does that not illustrate the point that I was trying to make earlier? It is all well and good for Ministers to prate about applying common sense, but in the courts judges have to apply and interpret the law. Applying and interpreting the law and applying common sense are often two very different things.

Mr. Bellingham: My hon. Friend is spot on. It is not just a question of applying the law but of the impact of the Act on the police and many other practitioners in the legal and justice system. It has created a risk-averse culture, which has had many unintended consequences.

The Anthony Rice case was mentioned by the Minister, and it is a good example of the unintended and often perverse consequences of the Human Rights Act. Anthony Rice was wrongly released on licence and went on, as the Minister pointed out, to commit the tragic murder of Naomi Bryant. The Bridges report that investigated the case made it quite clear that a factor that influenced officials who dealt with Rice was the concern that he might sue them under the Human Rights Act. Officials and organisations are therefore constantly looking over their shoulder. [ Interruption. ] Indeed, they are wrong to do so, but that culture has become part of the way in which those organisations operate.

Recently, police have tried to recapture foreign ex-prisoners who should have been deported but who went on the run instead. The obvious thing to do would be to issue “Wanted” posters, but police forces across the country refused to do so on the grounds that it would breach the Human Rights Act. However many missives, directives and items of guidance the Lord Chancellor sends out, in many forces and other organisations there is a risk-averse culture that cannot be changed overnight.


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Mr. Andrew Dismore (Hendon) (Lab): Will the hon. Gentleman give way?

Mr. Bellingham: Of course I will give way to the Chairman of the Joint Committee on Human Rights.

Mr. Dismore: I am grateful to the hon. Gentleman. The issue is one that we have just explored in correspondence with the Association of Chief Police Officers. I had a letter back from ACPO only today making it clear that there is no reason at all, from the human rights point of view, why “Wanted” posters of people who are convicted escaped felons should not be published. There is a difference between such people and suspects who have not been convicted of any offence. That has been made clear by the Derbyshire police in the case to which my hon. and learned Friend referred earlier, and more generally.

Mr. Bellingham: I am glad to hear that. It is good news, but the hon. Gentleman would no doubt accept that it will take more than one or two statements from ACPO to change the culture that has built up.

Let us consider the deportation of undesirable aliens who threaten our security, a point that was made in an intervention by my hon. Friend the Member for New Forest, East (Dr. Lewis). Surely common sense dictates that we should be able to remove from this country those who want to do harm to this country and our citizens. We are a compassionate, understanding nation. Of course we will not send people back to countries where they will be persecuted or tortured.

Over the past few years we have sent many young British soldiers to fight in wars in countries as diverse as Kosovo, Sierra Leone, Iraq and Afghanistan. Many soldiers have lost their lives and we have spent a vast amount of money fighting those wars. As a result, we have brought a great degree of peace and stability to those countries, yet there are many people from those countries who claimed asylum in Britain and were allowed to stay here so long as there were serious problems and unrest in their own country representing a threat to them. Now that we have imposed democratic regimes in many of those countries, surely that argument falls apart. I am not suggesting for one moment that we should have a blanket policy of deporting anyone anywhere in the world. Of course we would not do that.

Let us look at the case of the nine Afghans who hijacked the Boeing 727 in February 2000, which received a huge amount of coverage at the time. The Home Secretary said:

He went on to say that the serious crimes that the hijackers had committed were incompatible with refugee status. I hope we all agree with those sentiments, but has there been any action? No, because the Home Secretary knows that his plans are contrary to the human rights legislation. The Home Office should admit that.

One of the cases that has had an impact on what the Home Secretary could do and what the court had to decide in that case was the Chahal case in the European Court of Human Rights in 1996, with which colleagues are probably familiar. The case has had a number of
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consequences. For example, in the Singh and Singh case in 2000, the Home Secretary at the time decided that although those two men had committed no crime under British law, they were nevertheless a serious threat to our security; but a British judge, guided by the Human Rights Act and its requirement to use ECHR jurisprudence—that is, the Chahal case—as a precedent, ruled that the Home Secretary could not make that judgment.

The Special Immigration Appeals Commission was not happy about having to follow the ECHR jurisprudence. When giving judgment Mr. Justice Potts, a man who is not known for his authoritarian views and who is one of the more compassionate judges on the Bench, said that

He could not have put it better.

Mr. Dismore: The hon. Gentleman seems to conflate two different issues, the Chahal case and the Afghan hijackers. Has he read our report dealing with the Afghan hijackers, which makes it clear that the decisions of the court were based on findings of fact—bearing in mind the point that the hon. Gentleman made earlier about not sending people back to be killed—that the hijackers would be targeted for assassination by the Taliban, and also the finding of fact, which was not challenged by the Home Office, that they presented no risk whatever to security in the United Kingdom?

Mr. Bellingham: I am grateful to the hon. Gentleman. He is extremely knowledgeable. I have seen the report and I will look at it in more detail. However, the point is not whether the Home Secretary would finally have decided to send the hijackers back. If he had made a judgment that they would be tortured, imprisoned and killed, that would have been a different matter, but he had no right to send them back, and he had no chance of exercising his judgment. That is why the present law is flawed.

Mr. Cash: Does my hon. Friend agree that despite the weasel words that we have heard with respect to the hijackers and the ECHR, the judge ultimately made the decision on the question of lawfulness in relation to discretionary leave under the ECHR, so the ECHR was indeed the basis for the decision?

Mr. Bellingham: There is no question about that. In our judgment, it was the wrong decision, but even if the Home Secretary, on advice from the embassy in Afghanistan, from the United Nations and from bodies such as Amnesty International, that the hijackers would be put at serious risk and would almost certainly be tortured and killed, and being a compassionate and understanding person, had been inclined not to send them back, he would not have that choice because the law is such that we are bound by the decision of the European Court of Human Rights.


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