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25 Jun 2009 : Column 312WH—continued
However, another housing case involved people who had been left destitute and were living in a field, having been thrown off their land. I cannot remember the exact name of the case—it begins with B—but it will probably come back to me later. In that case, the court said that the state was required to give those people, who were living in a field with no shelter at all, at least minimum basic protection against the weather. In that case, a sensible decision was taken by the South African courts to suggest that there should be a certain minimum level of protection against destitution.
David Howarth (Cambridge) (LD): That is an interesting example. It raises a question that I was going to raise later about social and economic rights. According to the human rights standards under which we operate, there is a right not to be left in destitution. Does the hon. Gentleman see things such as the right to housing as simply examples of that—an operationalisation of that right—or does he see them as going further than the right not to be left in destitution?
Mr. Dismore: I am not entirely sure that we actually have a right not to be destitute, as far as human rights are concerned; it is a social and economic right. I suppose that we could draw those rights as principles from other parts of existing legislation: for example, one of the Local Government Acts deals particularly with the question of destitution. However, there is no overarching right. There is a duty on the local authority to ensure that people in the area are not destitute, but I do not think it has the mirror-image effect of giving the individual a right in that respect.
We recommend that a right not to be destitute be enshrined in the Bill of Rights. It could operate through the interpretation of social security law. If there is a strong interpretation clause in the Bill of Rights, social security bodies would have to make decisions in the context of that clause. I have given the housing example of people not being evicted without the order of a court. That could be called a procedural right, but I think that it is rather more than that.
In the circumstances that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) put to me, a court clearly would be involved in making the decisions. That is not to say that there is an absolute right to housing, but that one cannot be deprived of housing without a court decision. That is the point that I made in relation to repossession. I am not saying that if our proposal was accepted people’s houses could not be repossessed, but that they could not be repossessed without the consideration of a court. Because of the Horsham Properties case, all the machinery that is there to protect people can currently be circumvented.
I shall move on to the issue of responsibilities, which is another key battleground in the debate. Our report was strongly opposed to a Bill of Rights being called a Bill of rights and responsibilities. We did not see the purpose of articulating explicitly in a Bill of Rights responsibilities as general as the responsibility to obey the law. However, in the Green Paper, the Government continue to pursue the curious suggestion that various legal and moral duties, such as the duty to ensure that your child attends school, the duty to co-operate with
the police and the duty to obey the law, may have a place in a Bill of Rights. The JCHR strongly disagrees with that approach. It comes across as bossy and authoritarian, and it is pretty meaningless. There would be no value added. Nevertheless, references to responsibilities in a Bill of Rights would be unobjectionable, to the extent that they acknowledge responsibilities that are implicit in human rights law and that the powerful—including private power—may have responsibilities not to interfere with the human rights of others.
We are currently conducting an inquiry into business and human rights. It is widely recognised that businesses, as powerful private entities with the ability to affect people’s human rights in many ways, have a responsibility to respect those rights. Indeed, that is recognised in the widely accepted international framework dealing with business and human rights. Although I do not want to pre-empt our report on human rights and business, the report we are considering deals with the Bill of Rights and private parties. That has become known as the question of horizontality in the Bill’s application. We agree that a Bill of Rights should not give free-standing causes of action to individuals against other private parties, for a breach of their fundamental rights. However, I would like to raise some key points.
First, the delivery of public services by private companies, either through privatisation or contracting out, has been thrown into confusion by the YL case in the House of Lords. I will not discuss the issues arising from that case at length because they are well rehearsed. When the Human Rights Act 1998 was passed, it was intended that privatised services would be covered. We have since seen sticking-plaster amendments to bring care homes within its protection, but its application to other services remains unclear. That has led to interminable correspondence on behalf of the Select Committee between me and Departments, and yet another of my private Member’s Bills, which is scheduled for Second Reading next week on 3 July and will try to clarify the position.
This issue must be resolved in a comprehensive way; not on a hit-and-miss, case-by-case basis. When the debate kicked off after the YL decision, I understand that the Government’s position was that it would be dealt with as part of the Bill of Rights debate. I now understand that it has been shelved and may be considered through a separate consultation. Will the Minister say exactly where we are with the YL issue? It is pressing because another case concerning privatised prison services, which I cannot go into, is due to be tried before the courts very soon. We recommend that the Bill of Rights should make it clear that when public services are delivered by a private body, that must be done in a non-discriminatory way.
Secondly, an aspect of growing importance is that the state may rightly be expected to provide protection for the rights of one private party against another. An example is the old and valued right I referred to earlier of security in the home against intrusion. Is it right that certain private internet operators can put on their websites detailed films and photos of our homes, back gardens and activities taken from space? We may well address that issue in detail in our forthcoming business and human rights report.
Thirdly, the right to a healthy and sustainable environment—a so-called third generation right—has developed into a right capable of legal expression. We
recommend it as a candidate for inclusion in the Bill. That right could well demonstrate the need for similar, indirect mechanisms for the protection of individuals by the state against private polluters. Although we do not support a direct horizontal cause of action, we believe that indirect effect could be given through requiring interpretation by the courts of legislation or common law in a way that is compatible with the Bill of Rights. The courts should be included as one of the bodies under a duty to act in compatibility with it and should take active steps to promote and fulfil the freedoms in the Bill.
I shall briefly mention international human rights instruments. The Bill of Rights debate could look outwards more to the international agreements that we have signed and ratified, such as the conventions on children’s rights and, most recently, on disability rights. The Bill of Rights would be a useful and effective way of incorporating into the domestic agenda our general obligations to such vulnerable groups. We urge the Government to consult on whether there are rights under human rights treaties that are not yet included in domestic law, which it would be appropriate to include.
We must be mindful of devolution. I have already mentioned that Scotland is different from England and Wales in respect of jury trials. Northern Ireland has been through a lengthy process to produce a draft Bill of Rights for Northern Ireland. The report speaks of a Bill of Rights and Freedoms for the UK. The debate raises many questions about national identity and requires dialogue between central Government and the devolved Administrations. I was astounded to learn that ours was the first Westminster Committee ever to hold formal evidence sessions at the Scottish Parliament. Devolution does not preclude a UK document, but there must be provision for separate, added-on or subtracted rights as the devolution settlement may require. That can emerge only through effective dialogue with the devolved Administrations.
Finally, and perhaps paradoxically, I come to the title of the Bill of Rights.
Sir Alan Beith: The words of the Government response on the matter of devolution are characteristic of the Government’s relations with the devolved bodies that we described in the Justice Committee report on devolution. The Government response states:
“The Government is alert to the need to engage with the devolved administrations and the devolved legislatures.”
In other words, “We haven’t done it yet, but we might get around to it.”
Mr. Dismore: I am grateful for the right hon. Gentleman’s intervention. When we went to Scotland it was clear that the first the devolved bodies had heard of the debate about the Bill of Rights was when we went to talk to them about it. There was a complete oversight on the part of the Government on the devolution dimension. The situation was different in Northern Ireland because the process had started and the Government were fully engaged through the Northern Ireland Office. A very interesting document was produced on that.
The Minister of State, Ministry of Justice (Mr. Michael Wills):
I am grateful to my hon. Friend for giving way. I realise that I will have a chance to say my piece, but on
this issue my hon. Friend and the right hon. Member for Berwick-upon-Tweed are wrong. We have been engaged with the devolved Administrations for a considerable period. I am not sure why my hon. Friend got the impression he did, but it was a wrong impression. We are actively engaged and will continue to be so.
Mr. Dismore: I was given that impression by the Scottish Government Minister we spoke to, who seemed to suggest that there had been no interchange with the UK Government on this issue. If the Government are engaged with the devolved Administration in Scotland, I am pleased to hear it and withdraw my criticism.
Mr. David Burrowes (Enfield, Southgate) (Con): Was the Select Committee not too dismissive of the difficulties in dealing with devolution in relation to a new constitutional settlement? The recommendations said that the devolution settlement created certain difficulties. However, the Select Committee took evidence from Professor Robert Hazell about a similar issue that arose when the Canadian charter of rights and freedoms was introduced without Quebec’s consent. Quebec refused to accept the new constitution as a whole. Does that not show the dangers of going down this route with Scotland?
Mr. Dismore: I certainly do not think that we are dismissive of the problems. We are saying that we need dialogue to resolve the issues, and that dialogue was perhaps missing in the case to which the hon. Gentleman referred in Canada. There is certainly a willingness to engage in Northern Ireland. The main worry there is that the implementation of the Northern Ireland Bill of Rights will be delayed because of the wider debate in the UK. One of the issues that we have to address in that wider context is how the Northern Ireland Bill of Rights, which is a very advanced document, can be married up with a wider UK Bill of Rights. For example, there are certain rights, including cultural rights, in Northern Ireland as a result of the particular circumstances there, but they are perhaps less important elsewhere. There are also issues relating to the religious tensions of the past. In Scotland, there are different issues because of the different legal system. We have to see how we can make those fit together.
Can we have an overarching Bill of Rights for every eventuality? I do not think that we can. We may have to have separate documents, which supplement a UK Bill of Rights, or we may have to have different caveats to it. That can be achieved, and there is a general willingness in the devolved Administrations to work towards that, as long as their specific circumstances are recognised. When I came back from Scotland, one of my main concerns was that that did not seem to have been the case so far. However, the Minister tells me that we are now well engaged, and I hope that the issue will be overcome, if it was an issue in the first place—we thought that it was, but he says that it is not.
To return to my previous point, the Committee believes that the Bill should be called a UK Bill of rights and freedoms. In the end, we regard the Government’s preferred title, which includes the word “responsibilities”, as somewhat inchoate and a distraction. It is probably intended for political reasons, rather than to have any meaningful effect. Our proposed title reflects the marriage of old and new—our traditional freedoms and liberties, the
new rights emanating from the Human Rights Act, social and economic rights and all the other ideas that I have covered.
As I said at the beginning, this is the first chance that the House has had to debate a Bill of Rights, which is so important for our society in the 21st century. I hope that it will not be our last chance to debate the issue and that the idea will catch the public’s imagination and find engagement. The old Bill of Rights has lasted for more than 300 years, and I hope that the modern Bill of Rights will, in the same way, be a vital part of our constitution for centuries to come.
3.2 pm
Sir Alan Beith (Berwick-upon-Tweed) (LD): I warmly welcome the report for its excellent handling of where we have got to on human rights and for clearly setting out so many of the issues. I do not agree with all its conclusions, but I welcome its general emphasis and many of its specific conclusions. It is an extremely useful piece of work, from which hon. Members on both sides of the House can benefit.
Let me start by referring to two approaches to the Bill of Rights that worry me profoundly. One has generally come from members of the Conservative party and particularly from Eurosceptics in it, who cannot quite get their heads around the fact that the European convention on human rights is not a product of the European Union, but a much earlier product of the Council of Europe, which was signed by a Conservative Minister many years ago. That line of argument suggests that if we had a UK Bill of Rights or a British Bill of Rights—a lot lies between those two phrases—we could somehow diminish the impact of the European convention on human rights. The Committee’s report makes it absolutely clear that that is not the case, and nor is it the Government’s position that that should happen. I am surprised that I still hear that argument from some on the Conservative Benches.
Simon Hughes (North Southwark and Bermondsey) (LD): I am sorry to intervene so early on my right hon. Friend, but I want to support what he says. The Conservatives are entirely inconsistent if they say or imply that that is their view, because they are among the first to ask for the rights of British citizens to be upheld in other countries, including on our continent. The best way of absolutely guaranteeing that those rights were upheld over the past 50 years has been the European convention, which has applied across almost all countries in almost all its clauses.
Sir Alan Beith: I am grateful to my hon. Friend. I should say that I do not attribute that view to the hon. Member for Enfield, Southgate (Mr. Burrowes), who is the Conservative spokesman. Indeed, I look forward to hearing from him later, when I rather believe that he will set out a much clearer, more coherent and more acceptable position.
The other position that I want to address comes from Ministers and is a rather new Labour position. Again, it is one that the Committee dispenses with almost, although not quite, entirely. It links rights and responsibilities and introduces the concept that we could have a Bill of
rights and responsibilities. The Committee comes down firmly against the idea of calling the Bill a Bill of rights and duties or a Bill of rights and responsibilities. In the report, however, the Justice Secretary is quoted as having set out two purposes for a new Bill of Rights. One is to put rights in the context of responsibilities—that is a primary purpose of the Bill. The second is to add economic and social rights, and I will come to that in a moment. First, however, I want to concentrate on the business of putting rights in the context of responsibilities.
We have the right Minister with us today, because he has been very clear in his statements on this subject, as he is on many subjects. He has made it clear that rights
“cannot be made contingent on the prior fulfilment of responsibilities”,
and that phrase is in the report. The Government response says:
“This is indeed the Government’s view.”
“The fact that we all have rights is no reason for people not to exercise them responsibly or for the Government not to encourage responsible behaviour so that the rights of all can be respected. ”
Fine. We all agree with that. I have spent quite a lot of my life trying to persuade people to behave responsibly in various ways, including politically. In that respect, I have encouraged people to carry out their political duties by voting and taking an interest in politics. I have also been delighted to support the numerous bodies and people in my constituency who do so many marvellous things to contribute to civil society and to the welfare of others. It is quite right that the Government should encourage responsible behaviour at the minimal level of not interfering with the rights of others and at the much higher level of actively contributing to society. However, that is not the same as putting rights in the context of responsibilities, which is a wolf in sheep’s clothing.
Of course it is desirable that people should behave responsibly. If people break the law, they are liable on conviction to lose part of their freedom, whether through a prison sentence, a community punishment or a fine. However, should rights be dependent more generally on responsible behaviour? Clearly, if everyone behaved responsibly and considerately, it would be much easier to maintain a free, harmonious and comfortable society. It is highly desirable that people should behave in that way. However, there is no way in which we can calibrate what rights individuals should have according to how responsibly they live, except by the due process of law.
Where the law can reasonably be applied to control behaviour that is a threat to the freedom of others, as in the case even of driving without due care and attention, there can be a defined range of penalties, including loss of the right to drive a car. However, no one seriously suggests that a persistent failure to check on the health and welfare of neighbours, a refusal to contribute to the social life of the community or an unwillingness to engage in voluntary activity can be dealt with through some corresponding diminution in the right of free speech, the right of free assembly or the right to a fair trial. Indeed, that conjures up the idea of a people’s court or village soviet, which can decide that some of the residents are not fulfilling their social responsibilities enough to deserve certain of the rights that the rest of us have hitherto taken for granted.
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