Westminster Hall
Thursday 25 June 2009
[Miss Anne Begg in the Chair]
Bill of Rights (UK)
[Relevant Documents: ABill of Rights for the UK: Twenty-ninth Report from the Joint Committee on Human Rights, Session 2007-08, HC 150-I, and the Government response, HC145, Session 2008-09.]
Motion made, and Question proposed, That the sitting be now adjourned.—(Helen Jones.)
2.30 pm
Mr. Andrew Dismore (Hendon) (Lab): It is perhaps surprising that this is the first opportunity that the House has had to debate the question of a Bill of Rights, bearing in mind that it has been under consideration for the best part of two and a half years.
There is no doubt that constitutional renewal is back on the political agenda. In his recent statement to the House on democratic reform, the Prime Minister said that
“setting out the rights that people can expect as a British citizen, but also the responsibilities that come with those rights, is a fundamental step in balancing power between Government, Parliament and the people.”—[Official Report, 10 June 2009; Vol. 493, c. 798.]
It is one of the five major issues on which the Prime Minister said the Government will set out proposals for debate and reform over the coming weeks. The question whether there should be a Bill of Rights for the UK, which many thought had been quietly forgotten, could therefore become important in the run-up to the election.
The debate should not be dominated by dusty old experts on the constitution or policy wonks fresh from think-tanks. The issue is central to many of the most important challenges of our time: how to protect people against the insecurity caused by the worst global recession since the 1930s; how to restore the public’s confidence in democratic politics; and how to make public services more responsive to the people that they serve.
The Joint Committee on Human Rights began our inquiry into the question of a Bill of Rights in May 2007, against the background of an unprecedented consensus among the major political parties about the need for a British Bill of Rights. That consensus reflected a wider view among the public, which was revealed consistently in opinion polls such as the Rowntree “State of the Nation” poll, which showed a strong majority in favour.
There is much less consensus on why a new Bill of Rights is needed, and no consensus at all on what rights should be included, or on how it should affect the existing balance of power between Government, the courts, Parliament and the people. Under my chairmanship, the JCHR has sought to build a greater understanding about human rights, both in the House and more importantly, among the wider public, drawing on the potential of discourse to transcend party political dividing
lines. One of the purposes of our inquiry was to ascertain the extent of agreement on the really big issues in the Bill of Rights debate.
Two years after the start of our inquiry, I believe that there is now a greater understanding of those issues, and sufficient consensus at least about the most important questions to move on to the crucial next stage of a focused public consultation conducted by an independent committee with a view to making recommendations to the Government. I hope that will happen early in 2010.
I shall focus on some of the key themes of our report, including what sort of Bill of Rights the UK needs; whether social and economic rights should be included; how a Bill of Rights complements, and is essential to, democratic renewal and public service reform; and whether there is any place for responsibilities or duties. I shall also explain why it is important that the debate proceeds from the premise that any new Bill of Rights must supplement, and not take away from, the protection already afforded to human rights by the Human Rights Act 1998.
The purpose of Bills of Rights in history, such as Magna Carta in 1215, France’s Declaration of the Rights of Man in 1789, and the American Bill of Rights of 1791, was to protect the individual’s liberty against the intrusive power of the overbearing state. Liberty was conceived only in the negative: an absence of restraint. In the middle of the 20th century, however, conceptions of liberty and human rights began to change. President Roosevelt, whose interventionist new deal rescued the US from the great depression, redefined those concepts with his “four freedoms”, to include not merely the absence of restraint, and freedom of speech and religion, but an absence of want and fear. Liberty in that conception included the right to economic security, which was reflected in the preamble to the universal declaration of human rights.
Debates about Bills of Rights have too often been hobbled by the assumption that there is an irreconcilable conflict between those two human rights traditions. In our report, however, we recommend that in our modern parliamentary democracy, a Bill of Rights should seek to combine them. The Bill needs to reflect the values that are so much part of our national identity: the rule of law, with power exercised lawfully, with the oversight of an independent judiciary; liberty, meaning freedom from restrictions; democracy, which gives people control over the decisions that affect our lives; fairness, meaning that equal rights are to be treated with dignity and respect; and civic duty, to reflect our broader responsibilities to each other and our communities.
Of course, any modern Bill of Rights must also include those long-standing rights that we in the UK regard as our birthright: the right not to have our homes entered or be subjected to intrusive surveillance without proper justification and effective safeguards against intrusion into our privacy; the right to peaceful protest and to freedom of expression; and the right to jury trial for those accused of serious crimes, although that is not a tradition in Scotland.
Other UK rights have emerged more recently. They include administrative justice, which ensures that decisions taken by those in authority are fair and impartial. If necessary, that can be backed by the right to review by the courts. Data protection, freedom of information and equality rights have also emerged. The Equality Bill
strengthens that last right, but it does not include an overarching constitutional guarantee of equality. I expect that we will have more to say on that during our scrutiny of the Bill.
The JCHR has been second to none in defending both traditional, ancient rights and newer modern liberties against unjustifiable interferences. It almost goes without saying that any UK Bill of Rights should include them in its catalogue of fundamental rights.
However, a modern Bill of Rights should also include protection for those rights that our society regards as equally important, such as rights to health, housing, education and an adequate standard of living. Civil and political rights are obviously fundamental, but they are pretty meaningless to those facing destitution, homelessness, chronic ill health or a lack of education. When my constituents complain to me in my advice surgery about their human rights being infringed and thump the table, it is usually about their health care, housing, education or benefits, all of which are not currently recognised in our law as relevant human rights at all, but which people think are so recognised. An Englishman’s home may be his castle, but that cannot be so for those with no home or no secure home in the first place. Education underpins freedom of expression, but the right to vote is not uppermost in the mind of the destitute person who sleeps in an office block doorway, who might be subject to police harassment.
Such rights are expected by the population, too. The Joseph Rowntree 2006 “State of the Nation” report said that 88 per cent. thought the right to NHS hospital treatment within a reasonable time should be included in a Bill of Rights. On a par with that, 89 per cent. thought that the right to trial by jury should be included and 65 per cent. thought that the right of the homeless to be housed should also be included.
The Convention on Modern Liberty, to which I was pleased to speak in February this year, has done an excellent job in raising public awareness of the need to protect the vital traditional liberties that I have described and the others set out in our report, but that is only half the story. A modern Bill of Rights must provide such protection but, equally, it cannot confine itself to purely libertarian concerns if it is to be relevant to our 21st-century society and all our citizens, from the Duke and his heirs with the landed estate and stately home to the desperate lone parent in her housing estate flat.
The human rights obligations of today require the state to take action to protect human rights, whether that means providing public services such as health and education, protecting against the insecurity of destitution by providing welfare benefits, or protecting the vulnerable against the powerful, including those with private power. The Prime Minister went a long way towards accepting that in principle when he acknowledged the indivisibility of civil and political rights and social and economic rights in his speech to the Equality and Human Rights Commission on the occasion of the 60th anniversary of the universal declaration on human rights. We therefore set out in our report an outline illustrative draft that contains both civil and political rights, and social and economic rights, which are two sides of the same coin.
I welcome the Government’s constructive engagement with the issue of whether and how a UK Bill of Rights
should include social and economic rights. The Government have shown that they have a very open mind on that. They have moved considerably from their initial position of scepticism in the 2007 “Governance of Britain” Green Paper. They showed a distinct lack of imagination in the paper, dismissing the inclusion of social and economic rights out of hand, on the ground that it
“would involve a significant shift from Parliament to the judiciary in making decisions about public spending and, at least implicitly, levels of taxation”.
The Prime Minister himself helpfully intervened in the debate. He acknowledged the modern reality that rights such as the right to health are now considered to be fundamental by the public and that they are regarded as one of the defining features of the country. He said that the real question was not whether they are properly to be regarded as fundamental rights, but rather whether, or to what extent, they should be legally enforceable.
Since that time, the Government’s position has continued to evolve. In evidence to our inquiry, the Government accepted that a range of options could be pursued, from fully justiciable and legally enforceable social and economic rights at the one extreme, to purely declaratory principles, of purely symbolic rather than legal effect, at the other. In our report, we freely acknowledge the difficulties of including rights such as health and education in a UK Bill of Rights and reflect especially on the extent to which the courts could and should make decisions about issues normally determined by politicians. We therefore developed and now advocate an approach that we believe counters those problems.
We propose placing a duty on Government to make progress towards realising rights to education, health, housing and an adequate standard of living, and to report that progress to Parliament. Although we recommend that individuals should not be able to enforce those rights directly through the courts, we believe that the courts should have a limited role in reviewing the reasonableness of the measures taken by Government, a role closely circumscribed by the express spelling out of the considerations to be taken into account when assessing the reasonableness of the measures taken. We suggest a series of such conditions in the report.
Courts should also be able to take social and economic rights into account when relevant to the interpretation of other legislation or common law. Of course, if interpretation clearly points one way, those rights would not be relevant, but if an argument were evenly or closely balanced, giving effect to the Bill of Rights could be seen as a tie breaker. Parenthetically, I should say that, generally—not just in the context of social and economic rights but for all the other civil and political rights too—we believe that the Bill should have a strong interpretive clause requiring any body interpreting it to strive to achieve its purpose and give practical effect to the fundamental values underpinning it.
We have been encouraged by both the Government’s response to that section of our report and the prominence of social and economic rights in the Government’s “Rights and Responsibilities” Green Paper. The Government now appear to recognise the force of the case for developing domestic formulations of economic and social rights and to accept that there might be ways of recognising rights, including social and economic rights, that already exist but are not currently enunciated as rights in UK law.
In the non-justiciable NHS constitution and the recently published Child Poverty Bill, the Government have gone further and provided a fascinating test case of how to provide a legally binding framework for the progressive realisation of social and economic rights in the campaign against child poverty. As South African Justice Albie Sachs, that world-renowned defender of democracy, freedom and equality told us during our inquiry, a country that does not include social and economic rights in some form in its Bill of Rights is a country that has given up on aspiration.
As an illustration, the Child Poverty Bill concerns the progressive realisation of the child’s right to an adequate standard of living as enshrined in article 27 of the UN convention on the rights of the child and imposes an absolute duty on the Secretary of State to achieve certain targets by 2020. The duty is unqualified by reference to resources or budgetary considerations, nor is there any power in the Bill to amend the target. There is a separate duty to have a strategy to achieve those targets. Although that duty is qualified by the requirement that the Secretary of State must have regard to economic and fiscal circumstances, the duty to meet the targets themselves remains unqualified.
The Secretary of State for Work and Pensions made it clear on the Bill’s introduction, and the Financial Secretary to the Treasury, confirmed in evidence to the Select Committee on Work and Pensions on 17 June that a Government who failed to show they were taking steps to achieve the targets could be subject to judicial review. The only way for a future Government to avoid that consequence would be to repeal the Act. The Bill is a bold piece of legislation giving binding legal effect to an important social right, and it demonstrates how far the Government have come from their original opposition in principle to the inclusion of social and economic rights in a UK Bill of Rights. I note that some of the provisions in the Equality Bill relating to social and economic inequality can be taken into account when public bodies set their strategic plans. Again, those strategic plans could be subject to judicial review if it is demonstrated that the body in question should have taken social and economic inequalities into account but did not.
In our report, we argued that protecting social and economic rights would make a practical difference to the lives of ordinary people. The severe economic downturn since the publication of the Committee’s report provides additional examples of how. Home repossessions are one example. The number of home repossessions owing to default on mortgage repayments has increased dramatically in recent months. According to the Council of Mortgage Lenders, some 45,000 homes were expected to have been repossessed by the end of 2008, and the number of people in mortgage arrears rose to 168,000. Its current year estimate for repossessions is 65,000, even after a downward reassessment and including the measures taken by the Government to help home owners in this challenging economic climate.
The Financial Services Authority and CML report that more than 1 million households are likely to default on a mortgage payment over the next year. On 22 October 2008, the Prime Minister announced new guidance to county court judges to ensure that repossession is
granted only as a matter of last resort. A new pre-action protocol on seeking possession based on mortgage arrears came into force on 19 November 2008. In the meantime, however, the High Court ruled in October 2008 in the case of Horsham Properties v. Clark that lenders are entitled to sell properties over the head of the home owner, without having to go to court, after a single default on a mortgage payment. After just one missed instalment, the new purchaser/owner of the property is entitled to a possession order against the borrower, who is now seen in law as a mere trespasser in the home that the law says they no longer own.
The pre-action protocol can therefore be circumvented far too easily by lenders invoking their power to sell the property without having to go to court. The FSA and CML have reported that UK sub-prime lenders have been taking an increasingly aggressive approach to repossessions and predict that the trend is likely only to increase in the light of economic conditions.
In our report, the Committee recommends that the right to housing is one social right that should be protected in any UK Bill of Rights. We suggested in our draft outline Bill of Rights the inclusion of a provision to the effect that
“No one may be evicted from their home without an order of a court.”
If the UK had a Bill of Rights that included such a provision, it would no longer be open to the courts to interpret the law so as to allow lenders to realise their security by selling people’s homes without first obtaining at least a court’s approval and convincing a judge that such a drastic step is proportionate in all the circumstances.
In the meantime, I have tabled a private Member’s Bill under the ten-minute rule designed to give borrowers at risk of repossession at least some basic protection from such sales by unscrupulous lenders by guaranteeing everyone’s human right not to be thrown out of their home without a court order. That would not mean that people who default could stay in their homes indefinitely, but it would mean at least some fairness and due process before a lender can literally take the roof from over people’s heads. The Bill is due for Second Reading tomorrow. Perhaps Front-Bench Members could indicate their support in principle for it and the vital protections that it would provide.
Sir Alan Beith (Berwick-upon-Tweed) (LD): How does the hon. Gentleman envisage that the statement of the right to housing would be applied by the courts in a situation where a family was breaking up and the two partners were arguing who should have custody of the children and who therefore needed the house? Would they both have a right to housing such that a public authority would immediately have to provide them with another house?
Mr. Dismore: I certainly would not go that far. We can take examples from what is happening in South Africa in cases involving the right to housing. It was found that if one wanted to jump the housing queue there, it simply would not work that way. South Africa has done a magnificent job—it has built some 3 million homes since the end of the apartheid era—but it still has a huge waiting list. It would not work in that context.
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