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However, damaging myths about human rights have taken root in the popular imagination. The JCHR examined in close detail three cases that led to calls for the amendment or repeal of the Human Rights Act. The first case was that of the Afghani hijackers, who were never convicted of an offence in the UK; their conviction was overturned on appeal. The second case was the deportation of foreign prisoners. That issue arises out of the European Court of Human Rights, as has correctly been said, and I suspect that we would come to the same conclusion, in relation to individual cases, across the House. The third case involved the management of Anthony Rice by the probation service.
In respect of each of those cases, assertions were made by senior Ministers that the Human Rights Act, or the judges or officials interpreting it, were responsible for the unpopular events that took place. In each case, those assertions attributing the outcome to the Human Rights Act were unfounded, and in the report the Committee gives a full analysis of why that is the case.
We welcome the Government’s new commitment to human rights myth busting and raising public confidence in the Human Rights Act, but public misunderstandings are likely to continue so long as very senior Ministers fail to retract inaccurate comments already made or make further unfounded assertions about the Act, or it is used as a scapegoat for administrative failings. We have already heard about the high-profile case in which a police authority refused to publish photographs of convicted prisoners on the run, as it wrongly considered that publication would breach the escaped convicts’ right to privacy. The Association of Chief Police Officers has confirmed to me that nothing in the Human Rights Act would prevent such publication in the interests of public safety. There may occasionally be operational reasons why photographs should not be published—for example, if they are out of date—or there may be other reasons, to do with a surveillance operation, but nothing in the Human Rights Act leads to that conclusion. It issues guidance only in respect of people who have not been convicted of any offence who may be suspects.
The Lord Chancellor’s speech on 9 February made him the chief myth buster, dispelling what he called the “clouds of nonsense”. He was entirely correct to entitle his speech “Human rights and common sense”. Ministries must be encouraged to take prompt action to prevent the development of Human Rights Act-based myths or scapegoating within their own areas of responsibility, which has happened.
The recent Department for Constitutional Affairs review ruled out withdrawing from the European convention on human rights or repealing the Human Rights Act. It did not, however, rule out the possibility of amending the Human Rights Act in future. The Lord Chancellor told us that the value of an amendment would be to send a “message” to officials or public authorities, rather than to change the meaning or effect of the convention.
In the JCHR’s view, it is wrong to use legislation, and parliamentary time, to send messages about the law. That can be done through guidance and instructions to Departments. Amending the Act to enshrine a duty to protect would not add anything to the existing obligation to protect the right to life. Indeed, our summer report on counter-terrorism re-emphasised the duty of the state to protect its citizens from terrorism. We proposed a series of Human Rights Act-compliant reforms to the criminal justice system to that effect—for example, in relation to the use of intercept evidence in court, a matter that I understand is under detailed consideration and on which I hope that we will have a sensible answer.
I am also referring to the need to allow the police to interview post-charge terrorist suspects and to allow adverse inferences to be drawn from a failure to co-operate, and to more judicial control over the detention processes. We came to the conclusion that it was not necessary to extend the pre-trial detention period—a view that I think is shared by the Opposition
and which is supported, contrary to what we heard earlier, by requirements under the Human Rights Act. This also applies to concerns about the operation of control orders. Again, I understand that the control orders regime was opposed by the official Opposition in terms of the Human Rights Act.
In contrast with the Department for Constitutional Affairs review, which provided a lengthy analysis to support its conclusions, the Home Office review has never been published. That review suggested that there was a “culture of risk aversion”. The Government said that they were addressing that, but failed to provide any evidence of a culture of risk aversion having resulted from the Human Rights Act in the first place. Without proper open scrutiny of the Home Office review, there is a real risk that the implications of that so-called culture may be overblown or misreported, as we have heard from the Opposition tonight. I suggest that in her closing remarks my hon. and learned Friend the Minister might like to tell us why the Government will not publish the review. That said, we welcome the fact that the Government did not assert that there was an imbalance in the criminal justice system that prioritised the rights of offenders over victims.
The establishment of the Commission for Equality and Human Rights this year will give rise to a new impetus for the development of a positive culture of human rights in the UK. However, there is clearly much work to be done in the meantime. The commission will need time to find its feet. In the meantime, the Government must ensure that Ministers and public authorities do not cut across the benefits of the Act or undermine them by making ill-informed statements, which should be withdrawn when it is pointed out that they are plain wrong. Myths must still be busted, and it may be Ministers, not just the Lord Chancellor, who are in the best position to do that effectively. I am pleased that we have started to witness more of that activity recently. For example, on the lunchtime news, the Lord Chancellor quickly came to the case involving the Derbyshire police, saying that there was no reason under the Human Rights Act why those photographs should not be published.
The Human Rights Committee will continue to work with the Commission for Equality and Human Rights to monitor and research the extent to which the Act has an impact on policy making and on the lives of ordinary people, not just by scrutinising Bills for their Human Rights Act compliance, but in a more positive way: by looking at Government policy statements to see whether they are genuinely Human Rights Act compliant, and by pointing out failures not just in legislation but in delivery of services. That is where the real battle should be fought—not over black letter law, but over ensuring that human rights are mainstreamed throughout our public services and, where services are not delivered, appropriately pointing that out.
Mr. Shepherd: In all this, the hon. Gentleman has not introduced any democratic balance. He is talking about social issues, which are the heart of the political debate in this country, but he does not say that there is a democratic right sometimes to determine what is the appropriate allocation of priorities to major issues of public policy.
Mr. Dismore: The hon. Gentleman is entirely right, but there are basic fundamental freedoms enshrined in the Act. I hope that none of the examples that I have given today are ones that he would have disagreed with had he been asked to make that decision himself.
I hope that the Government will continue to work to support the Human Rights Act in an active campaigning way, to ensure that the Act is properly enshrined in our society.
7.31 pm
Mr. David Heath (Somerton and Frome) (LD): It is a pleasure to follow the Chairman of the Joint Committee on Human Rights. I would have said that this was a timely debate, except that I fear that the time for it was possibly five or six years ago—it should have been held annually since—in order to counter some of the mythology that has, unfortunately, grown around the Human Rights Act. I congratulate the Lord Chancellor and the hon. and learned Lady on what they are doing. I do not say this often, but even the Attorney-General is encompassed in that big tent of praise for addressing some of the arguments that should be put forcefully about the value of the Act.
It is an enormously valuable Act. In fact, I think it is the most important Act that the Labour Government have put through. It enshrines the foundations of a civilised society, which is important. It provides for the defence not of the criminal, but of the citizen against the state. That is important. It allows attacks on those rights that we have as citizens of this country to be remedied within a British court, rather than a court in Strasbourg and that is right and proper as well. That is why I find it difficult to understand some of the arguments that have been advanced against the Act.
The mythology surrounding the Act has built up over the past six years. Newspapers, many of which should know better, have promulgated basic untruths about the implications of the Act. The culmination was when one tabloid newspaper last year proudly announced that it was leading a campaign, not against the Human Rights Act, but against human rights. To use the tabloid phrase, you could not make it up. I thought that this country was very proud of standing up for human rights and the rights of the citizen, yet a major British newspaper was campaigning against human rights.
I am sorry to say this, particularly to the hon. Member for North-West Norfolk (Mr. Bellingham), but those newspapers have been aided and abetted by the Conservative party. In the past few years, I have often joined in trying to defend the rights of the citizen against the Government in terms of civil liberties and human rights. Often, in arguing against what the Government have proposed, I have quoted from these Benches the articles of the European convention on human rights and heard that argument echoed by Conservative Front-Bench spokesmen, yet the Conservative party, for opportunistic and badly informed reasons, has decided that there is something to be gained by portraying the Human Rights Act as being inimical to human rights in this country—I do not believe that it is—and as something that it wishes to get rid of.
Mr. Cash: I think that the hon. Gentleman was party to the proposal in the Prevention of Terrorism Bill relating to control orders, which we put through in the middle of the night, and that he insisted that the Human Rights Act be ring-fenced in that legislation. Is he able to explain why it is that, in relation to those control orders, the Act clearly has not worked? Does not he agree that it is essential that we legislate on our own terms to ensure fair trial, due process and habeas corpus, all of which we can do to ensure that alleged suspects get a fair deal?
Mr. Heath: I think that it is important that we legislate in the House to ensure the rights of the citizen. I do not see any contradiction between that and the provisions of the convention on human rights. On the specific point that the hon. Gentleman raises about control orders, had the Government taken our advice on the matter of control orders, they would not have found themselves in legal difficulties in implementing them, but they chose not to do so. They chose not to put in the safeguards that we demanded. The inevitable result was that the Human Rights Act did its job in requiring the Government to think again. That is a good illustration of the Act doing its job effectively.
The hon. Member for Hendon (Mr. Dismore) made the point well that the last element that has helped to whip up that campaign has been senior Ministers in the Government—not the Lord Chancellor, not the Attorney-General, not the hon. and learned Lady, but a succession of Home Secretaries and the Prime Minister, who have lost no opportunity to rubbish the effects of their own legislation and to rubbish the decisions of judges made on the basis of that legislation. When shown to be wrong, as they have been, they have not made any effort to retract their statements. That is deplorable.
Why do we have that campaign against the Human Rights Act? One reason is the allergy to the word “European”. The fact that the name of the convention is the European convention on human rights leads some who are ill informed to assume that it is the spawn of the European devil: the European Union. It is not of course, as has been made clear in the debate. If anything, it was the creation of the British Government and the British judiciary after the war, very much supported by Sir Winston Churchill at the time, although perhaps not by Attlee. Of course, the spirit of Churchill is now dormant within the Conservative party. That is one element in the concern about the current Conservative attitude.
There is confusion as to what the Act says. Very few people understand that it creates no new rights and that all it does is change the area of justiciability of those rights to a British court. That is something that British people should be very pleased about. They will save money, and find it easier to put their case to a British court than to go to a court in Strasbourg. Incidentally, a court in Strasbourg may have much less well defined sensibilities about British culture and British justice than a court here, yet there is a misunderstanding about that.
Concern was expressed immediately after the passing of the Act that, because of the publicity attendant on its passing, there would be a huge appetite for litigation. I am sure that all hon. Members will have heard people in their surgeries who, when dismayed about some petty
decision by a bureaucracy in their constituencies, say, “I know my human rights. I am going to get this under the Human Rights Act.” They are almost always wrong because there is no requirement under the Human Rights Act that the lamp post outside their window should be moved 3 ft down the road, that the pothole be filled or all the other things done that they tell us about. They tell us, however, that what they want is a human right, that it is justiciable and that they will get a remedy in court.
The reality is that the number of cases being brought under the terms of the Act is reducing markedly; there has been a 27 per cent. fall from the peak according to the most recent records, and barristers estimate that in only 5 per cent. of all cases is there any Human Rights Act implication at all in the judge’s judgment.
There are also failings of reporting—of the British media. Often a headline will be splashed across the front page about someone who is going to court because their human rights have been infringed in some way, but what is never reported is the fact that the case was laughed out of court and the person who brought it ended up out of pocket for putting such a prosperous proposition that his human rights had been in any way curtailed.
There are also stories that are just plain wrong. We have already heard play from Members in all parts of the House about the incident on the roof in Gloucester—about the poor and much-quoted criminal on the roof. Let me say something drawn from my experience. I was for a while a chairman of a police authority and I was very much involved in policing policy in the Avon and Somerset area. I had experience of contingency planning for hostage situations. It is standard police practice, and always has been, to make sure that the material needs of an individual in a hostage situation, or in a situation where someone might throw themselves from the top of a building, are settled so that negotiations can be continued. That has nothing to do with human rights. As the Minister said, no article of the European convention on human rights mentions Kentucky fried chicken. That is simply not there, so why do we pretend that it is?
In an intervention, the hon. Member for New Forest, East (Dr. Lewis) raised an issue to do with an assault case. I am sorry to have to tell him that if someone is accused of assault, they are accused of it not under the provisions of the Human Rights Act. It might be the case that they are wrongly accused of assault—that they are preposterously accused of assault—but that would not be the fault of the Human Rights Act, so why pretend that it is?
Dr. Julian Lewis: The problem that the hon. Gentleman fails to address is that when legislation on the statute book is so systematically misinterpreted—as he would put it—by all the authorities high and low that affect people’s lives day to day in the enforcement of the law, one has to say that somebody has badly failed in educating those authorities on how to apply that legislation. Is the fact that so many people are led to misinterpret it a failure of Government or a failure of the concept of the legislation itself? I know which of the two options I think is the right answer.
Mr. Heath:
It is patently not a failure of the legislation because the provisions have been in force since 1950.
Therefore, it must be a failure of administration—although, I must say, aided and abetted by Members saying that a charge of assault is a result of the Human Rights Act. It is not, and the hon. Gentleman should make sure that he understands the legislation before he refers to it. That highlights a key problem.
The hon. Gentleman’s intervention has served the useful function of putting me in a position where I can move on to the half-witted bureaucrats who are a large part of the problem.
Mr. Bellingham: The hon. Gentleman is talking about half-witted people, but the chief superintendent in charge of the case of the guy on the roof and the deputy chief constable both said that they were concerned about infringing his human rights, so there is something very wrong about the way in which they are interpreting the existing legislation.
Mr. Heath: The hon. Gentleman might have an advantage over me, but I did not see that any senior officer was quoted as having said that in that case. I looked at what was reported very carefully; the phrase used was that mysterious form of words that often appears in newspaper articles—“a police source said”. I suspect that no senior officer involved in that case was labouring under any such illusion.
What is important is the interpretation of human rights legislation by those who—to borrow a lovely phrase that I picked up from somewhere—are a few law books short of a law library. I am referring to people who do not understand what they are talking about but who feel free to give advice to others in very difficult situations as to how they should interpret the law. That has repeatedly happened over the past few years. I find some common ground with the hon. Member for North-West Norfolk in that I think that that problem is in part to do with a litigation-averse public sector that is now so scared of being taken to court not only under the Human Rights Act, but under health and safety legislation or any other such legislation, that it makes up the rules as it goes along for fear that somebody might bring a case, whether or not it has merit. It would be hugely beneficial if many more cases were put before the courts so that the courts could say, “Don’t be so ridiculous; this is not defective in any way in human rights terms.”
Mr. Dismore: I very much agree with the hon. Gentleman’s last point, other than that it would probably bog down the courts and cost a lot of money. Has he seen a publication from the Northern Ireland Human Rights Commission? It is a very good plain English booklet giving clear examples of what is, and what is not, an infringement of human rights, using not real cases, but hypothetical ones involving real people, to illustrate very effectively how individual lives are affected. In parentheses, I urge the Minister to consider looking at publishing that on a wider basis throughout the remainder of the United Kingdom.
Mr. Heath: I agree. That has been brought to my attention and the more it is promulgated the more understanding we will have of what people can and cannot do.
Mr. Beith: I want to draw my hon. Friend’s attention to what has happened under this legislation, as under health and safety legislation, which is that officials have found themselves in the position of having to defend a decision that they wish they had not taken, or a course of action that had been taken on budgetary or other grounds, and finding the words “health and safety” or “human rights” very convenient refuges.
Mr. Heath: My right hon. Friend is absolutely right; unfortunately, that is often a refuge for the incompetent. Let me say in parentheses that in my experience far too often public bodies—public authorities—settle out of court on terms that are hugely disadvantageous to the public purse and to public polity simply to avoid going to court. They are wrong to do so. Thinking back again to my experiences as chairman of a police authority, they were wrong to do so. The chief constable often settled out of court on a complaint, and I would say to him, “Why on earth didn’t you take it to court? This is a preposterous case.” The reply would be, “Well, better safe than sorry; it might have cost us more.” That was not a proper solution, but, as a police authority chairman, I had no authority to prevent that from happening.
Mr. Cash: Will the hon. Gentleman give way?
Mr. Heath: I will do so, but I will then move on because the hon. Member for North-West Norfolk raised some important issues in respect of where we go next.
Mr. Cash: I agree with that last remark, but I wish to ask the hon. Gentleman to answer the following simple question. In terms of the matter under debate, does he not agree that it is the application of the universal principles that causes the inhibitions, the difficulties and the misinterpretations? Unless the law is specific, clear and unambiguous we are bound to get into a situation time and again in which public services or the police, or others, are over-cautious about matters.
Mr. Heath: The alternative is that, instead of having 3,000 new offences, we will multiply that by a factor of 10; we will have an entire lobbyful of new statutes from the Government. Of course there must be universal principles. What is wrong with universal principles of human rights? Do we not all subscribe to them? Are they not principles that we hold dear and that we want our law to be in accordance with? Of course they are, and that is what the Human Rights Act did. It caused no problems between 1950 and 1998, so why has it caused so many problems between 1998 and 2006? The answer to that is because of ill-informed and incompetent administration.
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