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8.18 pm

Mr. William Cash (Stone) (Con): I come to the debate on a slightly historical note. All the talk about Magna Carta in speeches made by Lord Falconer and so on completely misses the point of what we are considering this evening. When I was shadow Attorney-General I made clear from the Front Bench my opposition to the Human Rights Act. At the time, that caused a little controversy but as things have turned out, the Opposition are formally committed to repealing the Act. I was very pleased to hear what my hon. Friend the Member for North-West Norfolk (Mr. Bellingham) said from the Front Bench earlier. There are profoundly good reasons
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for that commitment, to some of which I have alluded in interventions, in particular the fact that none of the rights and responsibilities that are certainly important to people cannot properly and adequately be dealt with by our own legislation in the House.

For those who wish to refer back to Magna Carta, important and symbolic as it was, I draw their attention to the fact that the barons themselves were as shady a bunch of people as one could possibly come across. Furthermore, when it was signed in 1215 or 1216, Magna Carta was regarded as a virtually useless document and it simply was not implemented. It was only later that people considered the intrinsic questions that lay at the heart of the document and those questions are important irrespective of whether Magna Carta was signed by King John. There is some doubt that it was.

Magna Carta was about containing the power of the Crown and it subjected the Crown to the rule of law. It was also about ensuring that there was habeas corpus and a right to a fair trial. There was no reference to freedom of speech, freedom of conscience or freedom of choice, and despite what I heard Lord Bragg say the other day in a programme about Magna Carta, nor was there any reference to democracy or democratic elections. The fact is that the intrinsic importance of the development of our democratic system is at the heart of what we should be debating today and it does not derive from Magna Carta. In fact, the right of democratic decision making in the House is alien to the concept of our adopting a universal declaration and enforcing it in our courts by the judiciary. I refer to the judicial activism of the courts at the expense of the decision making by this House on laws properly passed by those elected in general elections as representatives of the people.

I have developed over a number of years much the same argument about legislative supremacy in relation to the European Union. I am glad to say that my party endorsed that argument when it agreed to my amendment on the legislative supremacy of the House in relation to the Legislative and Regulatory Reform Act 2006. We whipped my proposal for legislative supremacy both in this House and subsequently in the House of Lords, and I stand by that principle. My greatest aversion to the Human Rights Act and to the European convention on human rights results from the fact that they take away by implication—although we can override them if we so wish—the intrinsic right and intrinsic ingredients of our decision making in this House.

I am not arguing that we should abolish human rights. That would be absurd; it would be obscene. That is not the point I am making. What I am saying concerns trying to achieve a proper balance between the individual and the state, and that is why I, my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and a few others at the beginning so objected to the idea of identity cards. In the debate, I held up to the Home Secretary George Orwell’s book “1984” and said, “This is the kind of world that you will introduce to this country.” From that moment on, we began to make a significant change in our policy and now, I am glad to say, my party is opposed to ID cards for the reason that I have given.


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Mr. Hancock: Perhaps the hon. Gentleman is coming to this, but can he explain for the benefit of the House how the lonely individual would then be able to take on the state and the abuses of the state if he did not have the protection of the Human Rights Act to lean on? How would the hon. Gentleman protect that lonely individual?

Mr. Cash: That is an absolutely vital point. It is up to the House of Commons and Parliament as a whole to ensure that those rights are sustained. I gave the instance of habeas corpus as a very good example. I referred to my criticisms of the Prevention of Terrorism Bill when I intervened on the hon. Member for Somerton and Frome (Mr. Heath) and I was appalled by the fact that those on the Opposition Front Bench ring-fenced the Human Rights Act in an unholy deal with the Liberal Democrats in order to embarrass the Government when the Bill got to the House of Lords. I objected to such ring-fencing because I said that it was possible for us to ensure that we got the balance right between ensuring that alleged suspects would have the right to habeas corpus, a fair trial and due process—that would ensure their rights—and ensuring public security by legislating for ourselves, notwithstanding the provisions of the Human Rights Act that have not worked in respect of several control orders and the fact that several of the alleged suspects have escaped in circumstances that derive from the very fact that they were not put under sufficiently stringent requirements.

Simon Hughes rose—

Mr. Cash: The hon. Member for North Southwark and Bermondsey (Simon Hughes) signed my amendment so I do not know what he will say when he intervenes.

Simon Hughes: I was going to ask the hon. Gentleman how the system he envisages will protect an individual when both Houses of Parliament pass legislation that allows somebody to be detained indefinitely in prison without charge and without trial when they have no remedy because Parliament says that they should have no rights.

Mr. Cash: I dealt with that very question with the then Home Secretary and I think that it perhaps played some part in his ultimate removal. I challenged him specifically on the question of habeas corpus and he was in a complete muddle. He did not know what to say, because he could not tell me whether it was or was not applicable. He contradicted himself. As I said in my speech at that time, the point is that the rule of habeas corpus is the ultimate and most sacred provision available to judges in all circumstances. It overrides all other requirements of the judiciary. As Lord Steyn and a number of distinguished judges have made clear, their most sacred duty is to ensure habeas corpus.

My answer to the hon. Gentleman is very simple. These rights are inherent in our system and cannot be overridden. In relation to control orders, the “red judges”, as we call them, would in the circumstances that I envisage go in to make sure that there was no unfair treatment of alleged suspects even if we were 90 per cent. certain that they were terrorists. They must be treated properly. However, that is not the way in
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which the Human Rights Act operates—hence the control orders and the problems that have flowed from them.

Another aspect on the formulation of legislation—I am talking about the whole breadth of legislation—has to be considered carefully. A paper was produced, although I do not think that it was in the days when I was shadowing the Secretary of State for Constitutional Affairs. By the way, however, I am not sure whether Lord Falconer of Thoroton is the Secretary of State for Constitutional Affairs or the Lord Chancellor, and when he is which and when he is the other. The fact remains that in this paper produced in July last year, it is made crystal clear on page 20 that, in respect of the provisions for making a statement of compatibility,

the Human Rights Act 1998—

It goes on to say:

In other words, we have sold ourselves down the river lock, stock and barrel to this principle of universality contained in the European convention on human rights—and, for that matter, in the 1948 universal declaration of human rights that was passed in the United Nations. We have therefore handed over to the courts at the same time the application of the law in order to ensure that these principles set out in the paper are complied with. It is like the hunting of the snark.

The plain fact is that all civil servants and every public authority are under an obligation to give effect to these principles irrespective of their practicality. No wonder all these problems have arisen, to which the Minister, my hon. Friends and the hon. Member for Somerton and Frome have referred. Misunderstandings are bound to arise from the impossibility of being able to relate these universal principles to practical circumstances. That is where the advantages of our common law system, which deals with specific cases in specific ways, are clear. The effect of the universal application of these principles has created problems for our statute law in that, although we can override it—as the case of Simms v. O’Brien and Lord Hoffmann’s judgment on the Human Rights Act made clear—the general application of the system employed and set out in this paper ensures that the whole of the human rights principles is embedded in the manner in which all Government Bills are introduced. That is where the problem lies. We no longer have regard to specific circumstances, which is one of the reasons why we get into such difficulty over the whole question of terrorism.

The issue of terrorism has brought up the whole question of public security and the safety of the nation in a way that is frequently inconsistent with the universal application of these principles as set forward in the European convention on human rights, the Human Rights Act and, indeed, the United Nations
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human rights declaration of 1948. Indeed, I would go even further. I went back to find out about the rapporteur of the universal declaration, who turned out to be a Mr. Charles Malik, one of the great jurists of the time. He said that there were four basic principles. Among other things, he said:

That freedom of choice lies in our democratic system. That is what we should rely upon to guarantee, through elected representatives and through our democratic system, that we make appropriate provision for the specific circumstances and do not draw down these generalised universal principles, which then fall foul of the specific difficulties that arise from time to time. Edmund Burke understood that completely. This is where we have gone wrong.

There is a very simple lesson to be learned from this debate. It is that universal declarations do not work and that we should be specific in safeguarding people’s liberties. The rights of the people are vested in this House of Commons, which is where decisions should be taken on behalf of the British people as a whole.

8.34 pm

Mr. Mike Hancock (Portsmouth, South) (LD): I shall first address some comments to the hon. Member for North-West Norfolk (Mr. Bellingham), who talked about the abolition of the Human Rights Act but did not take an intervention from me in which I would have asked how then the protection would be given to the individual. Despite his best efforts, the hon. Member for Stone (Mr. Cash) did not fully embrace those issues. If the Conservative party is going down that line, Conservative Members owe it to the nation to spell out in their Bill of Rights how the lonely individual who wants to take on the excesses of local authority, the Government or one of the other institutions of our land will have the right, the wherewithal and the justification to do so.

Mr. Cash: I did answer the hon. Gentleman right at the very end, with a simple proposition about freedom of choice. I called in aid the rapporteur of the universal declaration of human rights, who said that the most important thing is freedom of choice. That is the democratic freedom of choice, which is how to defend the people of this country—individually.

Mr. Hancock: The hon. Gentleman is either deliberately missing the point or wants to mislead the House in believing that this is just about habeas corpus. It is not; it is much wider than that. Human rights embrace much more than that. The right to hold a different view is enshrined. Habeas corpus would not protect that right. He was completely wrong in emphasising only habeas corpus. Once again, doing that will create the very myths of which many hon. Members are critical.

My hon. Friend the Member for Somerton and Frome (Mr. Heath) was right to bring the Government to account by asking why they have taken so long to hold this debate. Those myths have persisted in the minds of
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the public and others since the introduction of the Bill. Why has it taken the Government six years to start to try to unravel them? Why was it not a Government responsibility to explain to the people of this country, and, indeed, to the House, what the implications would be? Why is it now, six years on, that we are seeking to find a definition of a public body? Why has it taken so long?

I ask the Minister to clarify in her winding-up speech the point that I made in an intervention on her opening speech. I am still not clear how her Department will help those public bodies disseminate through their systems the way in which they should make such judgments. That is the point at which I differ from my hon. Friend. I do not blame the people who make those decisions and the wariness that some of them have. I am still a member of a local authority, and I have witnessed cases in which people at a very low level have made decisions that have been subsequently challenged in court, and they have not had the right advice and guidance at hand.

Many of those decisions, such as the one in the case of the man on the roof, were made by operational commanders on the spot at the time, and for the right reasons. They were facing a dilemma: should they bring down the man by force, or should they try to talk him off the roof by answering his plea for food and the specific naming of the food that he wanted? I do not share my hon. Friend’s view that this is a bureaucratic nightmare, with people making the wrong decisions because they are over-cautious. When they make the wrong decisions, in most instances it is because they have been badly informed, or not informed, about the rights. There is an obligation on the Government to explain the position fully.

I draw to the Minister’s attention the fact that the House is entitled to an answer to the question that the Joint Committee on Human Rights asked about the 2004 review. In response to the specific question raised by the Select Committee, the answer was:

How do we know what was raised in the 2004 review that necessitated a subsequent review of the implementation of Human Rights Act? How do we know that the right issues are not being tackled? How do we in the House, and the great British public, who in the main believe some of the myths that are being perpetrated, know that the Government are not delivering yet another smokescreen? The impression will be spread that there is something to hide. Why hide it?

Okay, the strategic review has been superseded by yet another review, but surely that review came to some conclusions about where the priority should lie and what the subsequent review should take on board. The House is entitled to a proper explanation of why we were unable to have that information. If it is so irrelevant, what is there to hide? Give it out: let us read it and understand it. Let us see for ourselves. Let us make citizens’ judgments on what the Government said about their own legislation. It is nonsense not to allow that.


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I share the views of the hon. Member for Llanelli (Nia Griffith), who made an excellent and thoughtful speech on behalf of the people who are in a position to be challenged time and again in relation to the legislation. Surely we owe it to them to make a clear statement of intent, to say who is covered. It is no good the Prime Minister saying in a speech that he believes that the public and the private sector should be treated the same, if that is not developed in such a way as to carry it forward into law. The current legislation allows the private sector to walk away. The hon. Lady was right to say that where bodies can trace their financing back to a public source in any way, they should be covered by public legislation in the same way as any bona fide local authority. There has to be either a sensible argument against that, or a sensible case for legislation to be amended to take account of it.

Vera Baird: I am slightly puzzled about what the hon. Gentleman means. If I buy my newspaper from WH Smith with my social security benefits, which would have a public source, does that mean that WH Smith becomes a public authority? How far back do we take the financing in order for a body to qualify as a public authority? That is the difficulty. I have given a frivolous example to make the point.

Mr. Hancock: The Minister was right to identify her example as frivolous. It was also hopelessly off the point that was made by the hon. Member for Llanelli, which I am attempting to elaborate on. It is unfair that the public sector is challenged on a daily basis across the country over the way in which it provides home care, yet the private sector is in some way exempt from that. The hon. Lady made it quite clear—other Members have alluded to this—that the public purse being used was really about the provision of services to the public in connection with a service that may no longer be provided in the public sector. That applies to health, some forms of education, social care, drug rehabilitation and so on. It even applies to the way in which prisoners are treated by the private sector and the public sector. Prisoners being dealt with by a private company presumably do not have the same protection if they are being transported— [ Interruption. ] The Minister nods and says that they do. I hope that that is the case.

Nevertheless, there is still the point about clarification, which is what the Select Committee sought. Members will know from what confronts them on a weekly basis at their advice centres that many people are confused about who is covered and who is not, and who has a right to challenge an authority under the legislation and who does not. Many lawyers will probably become very rich by giving out the idea that this is an easy trail for people to follow, but it most certainly is not.

I ask the Minister to look at specific cases—if we really do cherish the idea of human rights. I happen to believe that a country’s citizens judge themselves by their willingness to have those rights properly protected and enshrined, and that all citizens should be given the same rights to protect themselves and their interests, as stipulated in the Bill. Most reasonable people in the United Kingdom would suggest that those are rights that we deserve to have, which people over the generations have died to defend in this country.


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