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Mr. Heath:
The hon. Gentleman is being patient. I want to understand his position. If he accepts that the judgment made in a British court was based on the European convention on human rights, does he believe
that a different judgment would have been arrived at by a court in Strasbourg? If he believes that the judgment would be different, can he explain why? If he believes that it would be the same, how is the Human Rights Act in any way implicit in the decision that was reached about the legality of the position?
Mr. Bellingham: I take on board the point that the hon. Gentleman makes. Our view, and that of my colleague, the leader of the Conservative party, is that the constraints placed on our courts and our Ministers should not be placed on them. Those constraints result from the Chahal case and are reinforced by the Human Rights Act.
I shall move on to the case of the Belmarsh detainees. There was no admissible evidence that those individuals, all foreign nationals, had committed a crime under British law for which they could be prosecuted. However, the Home Office made it clear that there was sufficient intelligence material relating to the danger that they posed to our security that a judge was persuaded, under the auspices of the Special Immigration Appeals Commission, to detain them. Obviously, there was a strong case for deportation, but because of the Human Rights Act and the nature of our participation in the ECHR, that was not possible. In response to the case of the Belmarsh detainees, what did the Government do? They opted for an illiberal solution—control orders. This is an example of the Human Rights Act undermining existing legislation and of the Government going for an illiberal, draconian solution.
There are many other examples of the Human Rights Act hindering the normal enforcement of law and hampering the punishment of criminals. The Minister mentioned the Barry Chambers case. He was the individual who went up on the roof and was brought Kentucky Fried Chicken and other food because if the police had not done so, in their view, they would not have been satisfying his human rights. The Minister may say that that was a stupid case where common sense was not applied, but it is an example of how police forces throughout the country feel that they have one hand tied behind their back because of the risk-averse culture and the need to focus in one direction, rather than concentrating on their job, sorting out law and order in this country and getting tough on criminals.
Mr. Dismore: Will the hon. Gentleman give way?
Mr. Bellingham: I shall carry on a little longer.
The case of the paedophile at the gym occurred towards the end of last year, when a convicted paedophile was using a gym at a leisure centre that was also used by schoolchildren. The man had been convicted of sexually abusing a number of girls aged between 12 and 14, but the solicitors acting for the school and the local council said that a ban would not be practicable because it might infringe his human rights. That was another case of an organisation—a local authority—adopting a risk-averse approach.
Only the other day, we had the case of the Babamuboni brothers, who were part of a gang that set out to rob guests at a christening party in Peckham in 2005. There was a certain amount of doubt over age,
forged passports were involved, and all sorts of questions were raised as to how old they were, which was particularly vital because the way in which they could be sentenced depended on it. The police suggested that dental checks should be carried out on the two brothers, and we understand that those tests would have been accurate to within two or three months. However, the police took the view that under the Human Rights Act they were unable to force the brothers to undergo those tests.
The Minister may say that those are all one-off, ridiculous cases and that they are absurd. However, not only has the HRA singularly failed to protect our citizens from the long arm and vagaries of an authoritarian and illiberal Government, it is hampering existing legislation. It has instilled in the police, the Prison Service, the probation service and many other public bodies throughout the country a risk-averse culture that ignores common sense.
By giving new rights to terrorists and criminals, the Act has undermined and neutered some of our key existing laws. Her Majesty’s Government have responded by bringing in ever more draconian legislation. Is not it ironic that the very Act that was designed to empower citizens with new rights is becoming one of the key drivers of illiberal and authoritarian law making? Not only is it hampering the fight against crime and terrorism, but it has helped to create a culture of rights without responsibilities—that is why we need a new approach.
I feel very strongly that we need to follow the example of some other European Union countries, which have found a way of protecting their vital interests, but with reservations. France has a specific exemption for its armed forces and police. In Germany, there is a clearly codified constitutional document called the basic law that protects Germany’s vital national interests. The European Court and the European Court of Human Rights can defer to any clearly defined domestic constitutional doctrine through what is called the margin of appreciation. We need to take advantage of that. The only answer is to repeal the Human Rights Act and consider introducing a new, modern Bill of Rights that can balance rights with responsibilities.
Mr. Beith: How would that change the situation? The omission of a right from the new Bill of Rights that he proposes would in no way preclude someone taking legal action in the European Court of Human Rights because we remain subscribers to the convention—or is he suggesting that we withdraw from the convention entirely?
Mr. Bellingham:
I am not necessarily suggesting that we withdraw from the convention, because if we can make the Bill of Rights work, as I explained earlier, we would have a situation in which the European Court of Human Rights would have to defer to a clearly defined, domestic constitutional doctrine. That would mean that the margin of appreciation would work. We are taking legal advice on the matter by talking to some of the top human rights lawyers in the country. If they conclude that a bill of rights is workable and would give Britain a status similar to the German basic law, it would restore British parliamentary supremacy over European law, which many people feel very strongly about. As far as
the margin of appreciation is concerned, that would apply to our vital national interests.
Vera Baird: What is going to be in the Bill of Rights?
Mr. Bellingham: The Bill of Rights would be very simple. It would define those core values that give us identity as a free nation. It would spell out the fundamental duties and responsibilities of people living in this country—duties as well as rights—and it would guide the judiciary and the Government in applying human rights law when the lack of responsibility of some individuals threatens the rights of others. It would enshrine and protect fundamental liberties. It would make that process quite clear. We would have far greater clarity and precision, which would allow those rights to be enforced more easily and effectively in circumstances where they ought to be protected, but it would be harder to extend them inappropriately, as happens under the present law. We need greater clarity and precision and we do not have that at the moment.
Mr. Bellingham: I will give way to my hon. Friend.
Mr. Cash: Does my hon. Friend agree that there is absolutely nothing curious or strange about the idea that we as elected representatives in this House of Commons can, as we have for centuries, make decisions about where the balance is to lie in respect of matters such as human rights? The basis on which he is putting his case is the basis on which we should go forward. We should decide; it should not be decided by some prattling universal declaration.
Mr. Bellingham: My hon. Friend is absolutely right. The Bill of Rights would re-invoke the doctrine of parliamentary supremacy over EU law and the European Court of Human Rights. If we can make it work, we most certainly will.
I shall bring my remarks to a conclusion because many hon. Members want to speak in the debate. The Government admit that there are flaws in the Human Rights Act. The Lord Chancellor is touring the country telling anyone who is prepared to listen that an injection of common sense will make it work properly. However, in the two speeches that he recently made, there were no answers to the fundamental flaws in the Act. I ask the Lord Chancellor and the Minister: why do they go on defending an Act that is beyond repair and not fit for purpose?
Incidentally, if Ministers spent less time trying to defend the legislation, they might be able to sort out the problems in their own Department, such as the crisis of legal aid, which impacts on all our constituents. Why cannot Department for Constitutional Affairs Ministers work with Home Office Ministers?
Vera Baird: Will the hon. Gentleman give way?
Mr. Bellingham:
No, I am bringing my remarks to a conclusion. Why not help to find solutions to the gun
crime crisis in this country? The number of gun crimes has doubled since 1997. Last year, 645 people were robbed at gunpoint in their own homes. Let us protect the rights of—
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I think the hon. Gentleman is going a little bit wide of the matter before the House.
Mr. Bellingham: My point is that those people are victims. They have rights as well. Surely we should do two things: reinforce and reimpose parliamentary democracy as supreme over European law; and spend more time trying to protect the rights of people who are victims of crime and really need their rights protected, and less time worrying about the rights of terrorists and criminals, which this law obliges us to do, day in and day out. I suggest that the Minister follow our advice. The Act is not fit for purpose. Why does she not admit that and join us in repealing it?
Mr. Deputy Speaker: Order. I must remind the House that Mr. Speaker has placed a 12-minute limit on Back-Bench speeches that operates from now.
7.17 pm
Mr. Andrew Dismore (Hendon) (Lab): As the Chairman of the Joint Committee on Human Rights, I welcome this long overdue debate. I hope that we shall hear some rather more informed and accurate contributions from the Opposition than the one we just heard.
We must and can show that the Human Rights Act is not just about minorities or criminals and terrorists. We must and can clearly demonstrate that it provides essential rights for the elderly, children, those with physical or mental illness and disability, the homeless, and every single citizen—each one of us—in our dealings with the state in all its forms. It must not simply be a lawyers’ gravy train. It must mainstream decency and fair play throughout our public services.
Recently, the Joint Committee produced a report on the odious crime of people trafficking, highlighting HRA duties to protect the victims of this modern-day slave trade. The Government responded positively by accepting our recommendation that we should sign up to the European convention against this crime. We are about to embark on an inquiry into the treatment of the elderly in hospitals and care homes, and their access to what can be expensive treatments, and I expect that that will be seen to be a popular cause. However, I make no apologies for the fact that we are also prepared to stand up for less popular, often demonised, groups who do not have the ear of the media or general public sympathy. A case in point is our current inquiry into the treatment of asylum seekers—not who is or is not one, but how the system treats them.
The Government have consistently referred to the need to entrench human rights as a package of shared values, with rights tempered by the responsibilities we have to each other and to the wider community. Those rights themselves are not alien to the United Kingdom, nor were they imposed by some distant European body. In fact, the convention was in large part drafted by the
British, based on our ancient, traditional, basic rights and values. Respect for those rights and everything that goes with them should help to change the way in which people think and behave, creating an atmosphere in which decisions and policies are discussed and understood.
The basic aim of the Human Rights Act was to bring rights home, so that British residents did not face a long and expensive journey to Strasbourg to ensure that they are enforced, which would be the consequence of the policy advanced by the Opposition. Clear examples can be given of how the Act has benefited individuals who would have had no redress at home without it. We have already heard about the local authority that wanted to separate a couple who had been married for decades by putting them in separate care homes when they could not look after themselves. Action under the Human Rights Act prevented that. The adult children of an elderly woman who was fed her breakfast while sitting on a commode used the Human Rights Act to argue that that was against her human rights, and stopped the mistreatment.
Dr. Julian Lewis: The hon. Gentleman says very assuredly that action under the Human Rights Act prevented or stopped those abuses. Does he not think that perhaps the benefits of a free press and the public outrage that those abuses generated had rather more to do with those bureaucracies changing their opinion?
Mr. Dismore: Trial by media does not create rights that people can go to court to enforce, and that is exactly what happened in the cases to which I referred. The media had not achieved that objective. An example is the case of the older people living in local authority residential care homes who secured much better protection against home closures, which involve risks to people’s life, health, dignity and psychological well-being. Disabled people who had difficulty accessing care services because of restrictive manual handling policies have benefited from a judicial reinterpretation of the manual handling regulations to make them human rights compatible. Council tenants established a duty for local authority landlords to maintain their homes in decent condition, so that councils did not let properties that were unfit for human habitation. A disabled council tenant successfully used the Act to establish that a local authority had a positive obligation to enable her to lead as normal a life as possible by providing the specially adapted accommodation that she was assessed as needing, but which it had denied her.
Mr. Cash: Will the hon. Gentleman tell us which law he is referring to that could not be covered by legislation at Westminster on Westminster terms?
Mr. Dismore: If we were to try to produce a piece of legislation to deal with each and every one of those cases, we would never be able to plug all the gaps—which is what the Human Rights Act does, in bringing the European convention home to the United Kingdom.
As things stand, however, the protections of the Human Rights Act in such cases are being whittled away because of the courts’ interpretation of what is a
public authority. Privatisation and contracting out are undermining the safety net provided by the Act for the most vulnerable people, such as the elderly and the disabled. When I put that to my right hon. Friend the Prime Minister at the Liaison Committee, he said:
“I think that anyone who is providing a public service is clearly subject to the same rules...The way to deal with it is to make sure that public and private sector bodies are treated the same when they are providing a public service”.
I agree. That is a key issue for the future of the Human Rights Act—an issue on which the Joint Committee on Human Rights will report in the future, and on which I introduced a ten-minute Bill—the Human Rights Act 1998 (Meaning of Public Authority) Bill.
The Government’s commitment to the rights and values protected by the Human Rights Act has increasingly been challenged by high-profile, but usually ill-informed, press reporting of maladministration, wrongly attributed to the Human Rights Act, by statements from senior Ministers and, as we have heard tonight, by statements from Opposition Front Benchers.
In May 2006, the Prime Minister asked the Department for Constitutional Affairs and the Home Office to conduct reviews of the impact of the HRA. The Joint Committee on Human Rights broadly welcomed the conclusion of those reviews. We reiterated our concern that one of the greatest challenges to human rights in the UK was the need to engage the public imagination and embed a human rights culture among ordinary people, not simply within public authorities, the House or lawyers’ chambers—not that that has yet been achieved in any event. By a culture of human rights, we mean not the neglect of duties and responsibilities, but a climate in which respect for those rights becomes an integral part of our way of life, a reference point for our dealings with public authorities and one another.
Such a culture cannot be achieved through litigation alone. It demands that decision makers understand human rights law correctly, and integrate into their policy and decision-making processes those real expectations—not the myths and not the excuses of politically correct jobsworths, who use bizarre misinterpretations as lame and bogus explanations—to ensure that the traditional British sense of decency and fair play, enshrined in the Act, is reflected in the way they work. A good example of that is the Kentucky Fried Chicken case, about which we have heard, and in which what was probably an unpopular and difficult decision to feed someone on a roof during a siege was somehow justified using the Human Rights Act, when the decision probably made common sense in the negotiations to get the man down safely. It had absolutely nothing to do with the Human Rights Act at all.
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