Previous Section | Index | Home Page |
the people managing his case started to allow public protection considerations to be undermined by its human rights considerations.
At the time the Human Rights Act was introduced, it was the stated aspiration of the Government that the Act would be more than merely a technical instrument to enable courts to adjudicate on the basis of the ECHR. It was hoped that the Act would bring about a fundamental transformation towards a human rights culture. The Anthony Rice case suggests that the Government have been all too successful in creating precisely such a culture. A vague human rights culture ensured that parole officials set a convicted criminal free to murder. Mr. Rice was set free because the Parole Board feared that human rights legislation meant that if it did not release him under licence, the courts would step in and do so anyway.
The third myth about human rights is represented by the failure to deport foreign prisoners. On 3 May 2006 the Home Secretary made a statement to the House setting out proposals to change the system governing the deportation of foreign prisoners. The statement followed the revelation that substantial numbers of foreign prisoners who would have been considered for deportation on their release had instead been freed into the community.
Again, it is deeply invidious to imply that human rights legislation is not at fault for that catastrophic failure of public policy. The courts have chosen to interpret articles of the ECHR, regardless of whether the ECHR is incorporated into UK law, in such a way as effectively to prevent deportation to many third countries, including other countries that have signed up to the convention. It is not simply the Human Rights Act that is at fault, but rather the European convention on human rights and the courts willingness to adjudicate on the basis of it that is the problem. We should seek to treat not the symptoms, but the fundamental cause of the problemthe European convention itself.
Mr. Cash: Does my hon. Friend agree, as regards the accumulation of these principles into European law through the European Court of Justice, that it was the specific intention of the treaty to apply the convention so that it would also fall within the jurisdiction of the European Court, overriding all the laws in this country and applicable in the House of Lords?
Mr. Carswell: My hon. Friend makes a valid point. That matter was not high in my mind, but I thank him for his valuable contribution.
I believe that there are alternative ways in which we can defend individual liberty. Those of us who believe in genuine liberty should be concerned to protect the individual against the overbearing state, but we should not regard the Human Rights Act as a measure that empowers individuals against the stateinstead, it hands to unaccountable judges powers that should rightfully rest with accountable parliamentarians through the ballot box. Human rights legislation ossifies the public policy-making process. It prevents us from developing innovative
answers to new challenges. It makes an unresponsive state even less responsive. It puts more power in the hands of remote and unaccountable elites. In this country we have a long tradition of individual libertya tradition that was not guaranteed by some charter adjudicated on by judges.
There is a growing public perception that human rights legislation, in the shape of the Act and the convention, protects the undeservingthe criminal and the terroristat the expense of the law-abiding. That view is largely justified. This criminal rights legislation must be repealed, but we must not merely axe the Actthe European convention on human rights must go as well.
Dr. Julian Lewis (New Forest, East) (Con): Although I agree with a great deal of the robust analysis put forward by my hon. Friend the Member for Harwich (Mr. Carswell), I should like first to refer to one of the opening remarks in the excellent speech by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), who asked why, if this human rights legislation is as rosy a garden as its advocates on the Government and Liberal Democrat Benches would like us to believe, it is necessary for us to have a debate of this sort at all, and why the tone of Members on those Benches is so defensive.
The more the debate went on, the more I became aware of something ticking away at the back of my memory reminding me that I had lived through something similar before, and eventually it dawned on me what it was. My mind went back to those junior common room debates in Balliol college, Oxfordnot the most conservative-oriented of Oxford colleges in my daywhen I used to engage the Marxist majority along these lines: if communism and Marxism is such a wonderful thing, why is it that whenever one looks at it working in practice the people are oppressed and suppressed, and often not only are denied their human rights but lose their lives? The answer was always: Well, its because the countries that are trying to put Marxism and communism into practice havent really understood it, so they misapply it. Its not that the theory is wrongits just that it hasnt been tried properly. That is what I am hearing today in what is being put forward by defenders of this legislation.
It is blindingly obvious that I am not a lawyer of any sort, but I like to think that I know a little bit about common sense. Government and Liberal Democrat supporters of this legislation keep having to say that we must bring common sense to it. When one gets a system or theory that systematically leads to the misunderstanding and misapplication of what it is meant to do, that suggests to me that there is something wrong with the system or theory itself. I believe that to be the case in this situation.
I am not qualified to say whether it is possible to introduce a new Bill of Rights instead of the Human Rights Act, as my party proposes, without also, as my hon. Friend the Member for Harwich suggested, ripping up our allegiance to the European convention on human rights. However, if we are to introduce a Bill of Rights, I should like to make a few suggestions that Conservative Front Benchers and the leadership of my
party might bear in mind. I hope that they will find some resonance in wider society, if not on the Government Benches or among Liberal Democrat Members.
First, we should recognise that any Bill of Rights must be a fairly short catalogue. One of the problems that has led to the concept of human rights being discredited by the legislation is that most people rightly believe that, for something to be a human right, it should be fundamental. They do not like to hear that people cite their human rights in cases that are obviously trivial and often perverse.
Secondly, people should recognise that there are few, if any, absolute rights and that most rights are provisional or contingent. We acknowledge that in, for example, times of war, when we impose conscription, which requires our citizens to go to war and put themselves in mortal danger. There are many lower level examples of the fact that the choices that we must make about the way in which we conduct our affairs mean, more often than not, choosing the lesser of two evils. What sticks in the throat about some cases is that, all too often, a human right is declared in an absolutist way, as if, once that is established, it is the end of the matter and its impact on the rights of other people does not count.
Let me revert to my undergraduate days of reading philosophy and politics. It would be useful for those who frame a new Bill of Rights to bear in mind the simple principle that John Stuart Mill spelled out so effectively in his classic essay, On Liberty. It is worth reading some of it into the record. It states:
The object of this Essay is to assert one very simple principle...That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others... the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others.
That is clear. We must ask ourselves whether justice, common sense and the principle of liberty that Mill outlined with so much emphasis and rightful attention, focusing on limiting peoples ability to harm others, has been taken further forward or knocked back by the introduction of human rights legislation.
I believe that people who come to this country without a legal right to do so and proceed to commit grave criminal offences are not in a position morally to claim that they have a right to remain here at the end of their prison sentence, irrespective of the misbehaviour that led them to be imprisoned. It is easy for people to say, This particular group will be targeted for assassination. It is not as clear as that in nine cases out of 10. It is usually a question of a risk assessment of some sort.
I believe that I am righthon. Members must forgive me if I am conflating different casesto say that one of those currently on the run on suspicion of murdering a female police constable not only got out of the country dressed in a burqa, wisely calculating, I suspect, that he would not be searched to establish whether his disguise was bogus, but has fled to the very country to which, he had previously successfully
maintained, it was too dangerous for him to return. That would be funny if there were not a dead policeman lying in a coffin as a result.
I believe in the principle that was enunciatedI am sorry that my repertoire is rather limited to my brief period as a philosophy undergraduateby the late Sir Karl Popper when he talked about the paradox of tolerance. I have quoted it many times before and I intend, if I am spared, to quote it many times again:
If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.
I fear that the problem with this legislationthe perversity of this legislation, the sub- culture that it has generatedis a culture of tolerating the intolerant and of setting their rights to look after their aims and their abuses over and above the rights of innocent people to be protected from harm. The Government and the Liberal Democrats can convince themselves all they like that this is all about the media misrepresenting cases, and half-educated bureaucrats misapplying the law, or even fully educated bureaucrats gold-plating the lawhow often have we heard that given as an excuse in respect of daft European legislationbut the great British public can usually tell when something is working well and when something is working badly. This legislation is working badly. The Government know that it is working badly and the reason they keep prating about the need to inject common sense into it is that it is a body of legislation that is inimical to common sense.
Simon Hughes (North Southwark and Bermondsey) (LD): I am grateful to be called, Mr. Deputy Speaker. I indicated to Mr. Speaker that I hoped that I might be, as I was prevented from being here at the beginning because of a long-standing engagement. I apologise to the Minister and to her opposite number on the Conservative Front Bench that I did not hear their contributions, but obviously I will read them tomorrow. I hope that I will not say anything that is in ignorance of what they said, or in any way disrespectful of things that they may have brought to the House.
Unlike the hon. Member for New Forest, East (Dr. Lewis), I do not come here as a philosopher or even as a former philosophy student, but as a former human rights lawyer and as one who is absolutely, strongly and unreservedly in favour of the legislation and supportive of the progressive development that the Government brought about when they introduced the Human Rights Act, as the best way that they could see of incorporating the convention into domestic law.
My interestnot formally relevant but so people knowis that, after my call to the Bar, I spent a couple of years as a trainee and then as an employee on human rights matters in the Council of Europe in Strasbourg. That was in the 1970s. Twenty years before, we ratified the convention. At the time, as hon. Members have mentioned, people were beginning to bring cases of individual petition. The ratification after the war, the right of individual petition and lastly the incorporation into domestic law have all been very good developments.
Colleagues have referred to the context. This is one of the legacies of the decision after the war of the great leaders of EuropeWinston Churchill was one and there were equivalent leaders in France, Italy, Germany and elsewhereto ensure that we never had war again in this continent and that we set a good example. The Council of Europe was one other legacy, as was the transformation of the League of Nations into the United Nations and the convention on human rights. We should be proud of that and proud of the part that the British played in the writing of the document which gave us the human rights that we have written down today.
This has been a developing document. Documents have been much laboured overfor example in the United Nations, as referred to by the hon. Member for Stone (Mr. Cash), where the universal declaration eventually became the UN international covenant on civil and political rights. There is also the European document. Those documents were not frozen in time. They were agreed at the beginning, but, as hon. Members know, they were then supplemented by negotiated protocols to the original document.
The hon. Member for New Forest, East implied that there is far too much legislation. By my calculation, there are only 15 rights in total; they are set out in the convention and all its protocols. Fifteen rights is not far too many; a very limited number of rights are protected. All are rights that most British people would regard as fundamental rights that they would want to be defended. There is the right to life, the prohibition of torture, and the prohibition of slavery, referred to by the hon. Member for South-West Bedfordshire (Andrew Selous); we got rid of that 200 years ago, and the convention ensures that we shall not have slavery and forced labour again. There is also the right to liberty and security, the right to a fair trial, the right to freedom of expression, the right to education, the right to family life, and the right not to be discriminated against. Those rights are not alien to us; they are fundamentally central to the citizenry of this countryand the fact that they are written down gives us a much better guarantee that they will be upheld than ever we had before, for reasons I shall come on to discuss.
Mr. Stewart Jackson (Peterborough) (Con): I take on board the fact that the hon. Gentleman is giving us an historical lesson about the background to the legislation, but we are also talking about its practical ramifications. Is he concerned about the perverse and obscene spectacle of police forces distributing in public mug shots of criminals convicted of very serious offences but the public not being permitted to know what crimes they have been convicted of and human rights being used as the excuse for that?
Simon Hughes:
I have apologised for not being present for the opening speeches of the debate, but I have been present for all of the rest of it; I do not think that the hon. Gentleman has been. If he were well informed, he would know that one reason the debate has become of greater interest to some colleagues is of a misinterpretation of many of the rights set out in the convention. They are rights to which we in this country have subscribed for many years and they are applicable to many in this
country. There has been some misunderstanding of the rights, but I hope that this debate will be one of many exercisesalong with the Lord Chancellors recent speech and other speeches and judicial interpretationsthat correct that. I have seen nothing that justifies a decision that pictures could not be shown in the case that the hon. Gentleman refers to.
Let me say clearly to the hon. Gentleman and other Conservative Members that the human rights convention and the legislation is much more about the rights of parents, children, carers, grandparents and husbands and wives who are normal, law-abiding citizens in constituencies around this land, than it is about people who are in prison or who are alleged to have committed serious crimes. It is about the rights of the majority as much as it is about those of the minority. However, if the hon. Gentleman ever thinks that it is not important to protect the rights of the minorities too, I hope that he is never one of those minorities. I hope that he is never arrested unfairly, or that heor anybody in his familyis never detained wrongly, because if he is he will realise that it is very important that the courts in his county, as in mine, can immediately take an application to grant the liberty of the citizen, which would not otherwise necessarily be granted. I hope that he will think twice about the nationalistic view that these rights are alien to our culture. They are British rights. We drafted them, and thank goodness the European continent as a whole has endorsed them, and thank goodness they are applicable when we step across the channel and visit other countries in Europe. British citizens can pray in aid those rights in other countries, as other people can here. The fact that we are not dependent on the arbitrary whim of a particular Executive, Government or Parliament is a great civilising development.
Mr. Cash: How can it be civilising for difficulties to be put in the way of the police in searching children in schools for knives and guns?
Simon Hughes: It is not civilising for difficulties to be put in the way of the police. I live in a borough where, sadly, searching youngsters is necessary as they enter school, because of the terrible tragedies that have occurred; indeed, I have been with the police today. However, the issue is whether we have rights that we uphold. We have always had some rights, which, as the hon. Member for Stone said, were established by habeas corpus, but they have been inadequately defended. The case that my hon. Friend the Member for Somerton and Frome (Mr. Heath) and I make is that we should never trust Executives, because they always seek to exceed their powers, but nor should we trust Parliament. Parliament is not perfect. It is not representative in gender, background, race, ethnicity, colour or political view, and it does not represent the views of the people of Britain. The Government were not elected by the majority of the people of Britain. [Interruption.] We were elected by the system that we have, but there is no reason for thinking that it gives us a perfect Parliament. We should be much more positive about ensuring that we have independent judges who are fearless and are not seeking their seats at the next election. They should be able to stand up and say that the rights to a fair trial, to freedom of association and to freedom of speech are ones that we defend.
The great merit of the Governments belated but none the less welcome decision in 1998 to bring, as the hon. Member for Llanelli (Nia Griffith) said, human rights home is that, instead of having to waitinstead of having to go through the magistrates court, the High Court and the Appeal Court, and then to Strasbourgpeople can pray in aid their rights in this country at the first occasion. If we are to have human rights, we have to be able to argue for them in the local courts.
Mr. Cash: We had them here already.
Simon Hughes: We did, but they could not be invoked fully and finally and adjudicated until one had exhausted the domestic remedies and gone to Strasbourg.
The hon. Member for Aldridge-Brownhills (Mr. Shepherd) said that one problem with the new system is that lots of courts interpret the Human Rights Act, whereas before, only one court finally interpreted the human rights convention. That is true, but we in this country desperately need to have a human rights culture imbued in us all the time. One reason young people in this country do not understand their rights and responsibilities is that, unlike in France or the United States, they do not have a written constitution. They are not brought up to understand the relationship between the state and the individual. That is why we Liberal Democrats and our predecessor Liberal party have for many years wanted not only a Bill of Rights but a written constitution, so that the rights and the responsibilities of the individual can be established and learned by children at their mothers knee as they go to school, just as they are in the United States. Youngsters in the United States understand the rights and responsibilities of the citizen. They understand the importance of the constitution and the value of a supreme court independent of the Executive and the legislature. That is a great advantage, and we should seek it.
I hope that the Minister heard the request of my hon. Friend the Member for Portsmouth, South (Mr. Hancock) that the Government look much more favourably at the Council of Europes plea to be properly resourced, so that it can deal much more quickly with cases that go to Strasbourg at the end of the process. However, there is one other thing that we in Parliament could do to improve the credibility of human rights in this country. When the Government are thinking of legislating, rather than a Minister certifying on the face of the draft Bill that it is human rights-compliant, it should be submitted to the Joint Committee on Human Rights, to which I pay tribute for the very good service that it does to both Houses. The Committee should certify that it is human rights-compliant on behalf of both Houses and of all parties represented in this Parliament. I would far rather trust a representative group of people not in government to tell me that proposed legislation is complaint with human rights, than a Minister who has an interest in getting legislation through.
Next Section | Index | Home Page |