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25 Jun 2009 : Column 325WH—continued
The first criticism is that some of the Committee’s proposals seem to mix up human rights and civil rights; that is, rights that belong to all humans in all states, and the rights of citizens of a particular state or the residents of a particular place. I can give an example which,
although I am very much in favour of the Committee’s conclusion, nevertheless makes my point clearly. The right to a fair trial is a human right in that it is universal, but the specific right to a jury trial is a civil right of people in England and Wales—in that case, of residents rather than citizens. That does not mean that the right to jury trial should not be given a special protected status similar to that given to a human right—I would be in favour of doing that—but it cannot be the same thing. It is not universal; it is not about all states or all humans everywhere in the world.
The same point applies to much of the debate about social and economic rights, and possibly environmental rights as well. The hon. Member for Hendon is right to say that there is no explicit human right to be protected from destitution, but destitution can amount to violation of the article 3 right to be protected from inhuman, degrading treatment, or even the right to life in article 2. There is a sense in which freedom from destitution is a human right because it protects the basics, the fundamentals—life and basic dignity.
It would be possible to go further than that on the basis of justiciable rights, as long as one knew what one was doing. For example, there is a sense in which to exercise one’s political rights to be a citizen, one needs some basic level of health care, housing and education. It would be only a minimum standard and would require some resources—this is not an argument about all resources—but it would be possible to do that on the basis of what was owed to citizens or residents, rather than what is owed to all humans in the world, wherever they might be.
The second criticism is that some confusion seems to have crept into the Committee’s thinking, and the Government’s thinking, too, about the difference between a written constitution as a project and a Bill of Rights as a project. I noticed the other day that the Prime Minister had returned to his view, which he mentioned right at the start of his term of office, that he was in favour of a written constitution.
A written constitution project is a different thing. For example, entrenchment of a Bill of Rights can occur in a meaningful, full way only in the context of a written constitution. Only if there is a written constitution can one get away from the fundamental problems of the sovereignty of Parliament, and the idea that Parliament can pass anything as a law and can overturn anything that has previously been passed as a law. In reality, one can get away from that only if there is a written constitution.
This is where the argument about preambles and declarations has gone wrong. Much has been said about statements of values and symbolic statements of that kind. They are the kind of thing that one sees in the preambles to written constitutions. They make perfect sense in such contexts, but one does not see them in the preamble to Bills of Rights or human rights Acts as limitations on governmental power. It is better to state the values to which the state is committed in the structure of the constitution. There is no need to do that simply in the limiting bit—in the Bill of Rights bit or in the Human Rights Act bit. The whole thing requires a preamble.
If the Government were to say that in drawing up their statement of values they were trying to draft an early version of the preamble to a written constitution, rather than something to do with the Bill of Rights, I
could see what they were up to and would understand it. There is an issue about whether that is the right way round, and some people would argue that the mechanics should be done first, and that the values should then be considered, but linking the writing of the preamble to reform of human rights law is odd and risky, and should be rethought.
Despite some reservations about tactics and strategy in the Committee’s report, I very much welcome it, and I urge the Government to be more positive about it.
3.41 pm
Mr. David Burrowes (Enfield, Southgate) (Con): I welcome this debate, and the Joint Committee’s report. The subject is important, and has attracted all parties for different reasons. I commend the Committee for the depth of its analysis.
As the hon. Member for Hendon (Mr. Dismore) said, it is important to have consensus, but it has been suggested that the legislation will not be introduced until after the general election. It is important that that consensus is both political and public, and that when we consider making quick decisions to put our own house in order we do not circumvent more considered judgments on where Parliament fits into a new constitutional settlement. In the present climate of disconnection with the public, we must not rush too far ahead.
I trust that the hon. Member for Hendon, the Minister and other hon. Members involved in drawing up the new constitutional settlement are aware of the fate that befell the authors of the declaration of the rights of men and of the citizen promulgated by the French national convention in 1789. The authors, as hon. Members will be aware, were guillotined in 1794. I give way to an hon. Member who might be in the firing line.
Mr. Dismore: Thomas Paine was one of the main architects, but he was not guillotined. He was locked up for a while, but was sprung by the then American ambassador, and ended up causing as much trouble in America as he had everywhere else.
Mr. Burrowes: I am grateful for that information, and I am willing to be corrected, but my understanding is that the guillotine fell on others who were party to early consideration of the declaration. I concede that that had as much to do with the febrile political atmosphere in revolutionary France as to the quality and relevance of the rights and declaration. I do not suggest the guillotine for the hon. Gentleman, or even the Minister, but we must be aware of the political climate and how it affects constitutional processes. It is important that we consider the context carefully.
Our current political crisis may not be on the scale of that in revolutionary France, but it demands that we urgently address constitutional issues, such as the relationship of Parliament and the Executive, and recognise that constitutional questions are immediately being thrown up. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) referred to the Parliamentary Standards Bill, and in a matter of days we will, as some would say, seek to ride roughshod over the last Bill of Rights in 1689 when considering enforcement of the code of conduct. It is important that when we strive for consensus
and consideration we consider all aspects, even when we must say, “No, let’s wait, and take more time to consider matters.”
Perhaps our political crisis highlights the need for a new constitutional settlement such as new Bill of Rights, but we should proceed with due caution. It is vital to the vibrancy of our democracy and our respect for human rights to ensure that Parliament is sovereign. On the comments made by the hon. Member for Cambridge (David Howarth), it is a priority to put our house in order, and to do so soon.
Before leaving the French revolution and that historical note, perhaps we should be aware of Jeremy Bentham’s criticism of the French declaration—that it failed to provide any legal remedies to enforce rights, that those rights were too abstract to have any real meaning, and that it was favoured
“by poets, rhetoricians, and dealers in moral and intellectual poisons”.
He said that in pejorative tones, but we must keep an eye on the relevance of rights and their enforceability.
It is important to discuss the matter in Parliament, which is why this debate is welcome. The hon. Member for Hendon said that it has taken its time to come to debate, and it took 14 or so months for the Government to produce the Green Paper, but at least we have some focus on the road down which they want to take us when considering human rights, what they should be, and whether and how they should be enshrined in a new Bill of Rights. I welcome our future debates and discussions.
For too long, public perception has been that Parliament and the country are looking outside the debate and issues concerning human rights, and perhaps in some ways it resembles a game of tennis at Wimbledon—it would be a welcome place to be on this bright, sunny afternoon—with human rights being knocked about like a tennis ball. To take the Wimbledon analogy further, despite human rights being debated in Britain, British participants often seem to have little involvement and little ownership, and seem to have been spectators.
At the time of the Human Rights Act 1998, the present Secretary of State for Justice and Lord Chancellor claimed, and repeated it in the Green Paper, that the Labour Government were bringing human rights home. Those words made good headlines and carry on the sporting analogy, but they were historically inaccurate. Freedom and liberty found their home 200 years earlier in common law. To take issue with the hon. Member for Cambridge, English and British rights have formed part of our identity in the rule of law from the Saxon moot courts, Magna Carta and beyond. Those important traditions form our British identity.
I shall not stay in history, because we must examine the present architecture of human rights. It is important to recognise that a key problem—
Mr. Wills: I do not want to interrupt the hon. Gentleman’s flow, but before he leaves his historical point, will he clarify something? Is it important that British citizens have the right to enforce their rights under international conventions to which the United Kingdom is a signatory? I am referring specifically to the European convention on human rights. If so, is it better for them to be able to enforce those rights in a British court, or to have to go to Strasbourg to do so?
Mr. Burrowes: If the Minister is patient, I will, as he anticipates, go through that point with some care. He can come back to me by all means if he does not think that what I say is clear.
The debate can be polarised and the criticism of positions can also be polarised. People can suggest that it is just a Eurosceptic view that expresses concerns about the way in which the European Court of Human Rights in Strasbourg deals with issues. However, it is a key problem for the people in this country that the Strasbourg Court lacks proper constitutional legitimacy in this country. That is not just my view or a Eurosceptic view. It is, as I have mentioned, the view of Lord Hoffmann. He said in a lecture in March to the Judicial Studies Board:
“Whatever one may say about the wisdom or even correctness of decisions of the Court of Justice in Luxembourg, no one can criticise their legitimacy in laying down uniform rules for the European Union in those areas which fall within the scope of the Treaty. But the Convention does not give the Strasbourg court equivalent legitimacy. As the case law shows, there is virtually no aspect of our legal system, from land law to social security to torts to consumer contracts, which is not arguably touched at some point by human rights. But we have not surrendered our sovereignty over all these matters. We remain an independent nation with its own legal system, evolved over centuries of constitutional struggle and pragmatic change.”
Like Lord Hoffmann, I would not suggest that our system is perfect, but it is important, when we seek to improve the way in which human rights are applied, that we should be making those improvements in this Parliament.
Mr. Dismore: Does that not completely blow out of the water the Conservative party’s arguments about the importance of the Strasbourg Court and how important the Human Rights Act is in the UK?
Mr. Burrowes: No, it does not—far from it. Lord Hoffmann’s criticism made the point that the Strasbourg Court had not limited itself to the strict judicial discipline of interpreting and applying convention rights. He said in relation to the way in which it has applied convention rights:
“It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States.”
He went on to give examples of circumstances in which the Strasbourg Court had sought to second-guess UK regulations. He referred to the right to privacy and family life being expanded to second-guess regulation governing night flights at Heathrow. I concur with his point. The courts have a duty to apply the law vigorously, as they do up and down this land, but when they stray into the area of law-making, which is the job of elected law-makers, that needs to be rectified. That is our concern.
Another great concern of not only the Conservative party but many others is that the Human Rights Act has, by its very process, exacerbated the problems identified by Lord Hoffmann. This may not be the time to go through the details and examples, but that matter needs to be properly considered and dealt with. We need to move away from the situation in which UK judges are matching Strasbourg’s case law in domestic law. Significantly, that is not required by the convention.
Mr. Dismore: This is one of the most bizarre points; it is one of the points of Conservative party policy that I find most difficult to understand. To follow up the Minister’s intervention, how on earth can it be to the detriment of UK citizens and other people who may not be citizens to have their cases decided by a UK court and a UK judge, rather than having to go to Strasbourg to have their cases decided? How on earth can it be against their interests to have a British judge, who understands the British way of life and British circumstances, deciding a case, rather than the Court in Strasbourg deciding it?
Mr. Burrowes: I am not resiling from the European convention, but one has to recognise that there are deficiencies. There are deficiencies in the Human Rights Act. One has only to consider the case of retention of DNA samples from innocent suspects. I understand that it took more than eight years and the matter had to be taken beyond our own courts to Strasbourg in order for the Government to be forced to understand the unlawfulness of retaining those samples. That is an example of the Human Rights Act not properly protecting human rights, and the matter eventually had to be taken to Strasbourg to confirm them. One has to recognise that the present architecture is not acceptable and is not doing the job that it should be doing.
David Howarth: This is a point that I have never quite understood about the Conservative party, either. If the problem, as the Conservatives see it, is with the Strasbourg Court’s decisions, the only remedy is to change things at that level—to obtain agreement in the Council of Europe for a change to be made in the convention itself—or to leave the convention. There are no other possibilities. One cannot change the content of the convention by changing the content of domestic law. It just does not work, so what is the answer to the problem that the Conservative party and Lord Hoffmann have identified that makes sense within the architecture in which we find ourselves?
Mr. Burrowes: The answer is to ensure that we have legislation that is applied and enforced by courts and that does not resile from the principles in the European convention; we would not wish to do that. If one looks at the text of the convention, one sees deeply held British values, such as the right of the individual against arbitrary and excessive state powers. The issue is the application and interpretation of it. One has to accept that Strasbourg—
Mr. Wills: Will the hon. Gentleman give way?
Mr. Burrowes: In a moment. One has to accept that Strasbourg Court jurisprudence has in many ways gone too far and gone beyond what our country and our courts should properly be applying. It is important that we have a Bill of Rights and that we have the opportunity with a new Bill of Rights to consider a Bill that can be properly compatible with the European convention on human rights, but is not bound by Strasbourg Court jurisprudence.
Miss Anne Begg (in the Chair): To whom is the hon. Gentleman giving way?
Mr. Burrowes: To the Minister.
Mr. Wills: Shortly we shall have a vote and the hon. Gentleman may want to reflect on what he is saying. I would be grateful for just a little clarification. First he seems to be saying that there are deficiencies in the Strasbourg jurisprudence and that needs to be changed, which is the point to which the hon. Member for Cambridge (David Howarth) referred. Next he seems to be saying that he does not resile from it; he thinks that it is a wonderful thing and it embodies British values; and the problem is the way in which those rights have been brought home in the Human Rights Act. If he is in fact making that last point, can he be specific? Where specifically are the deficiencies in the drafting of the Human Rights Act? I am not talking about specific cases, in respect of which he may take issue with the judges. Which bits of the Human Rights Act would he like to be redrafted? Can he give us some clarification on that?
Mr. Burrowes: I do not propose to go into a debate on all the schedules to the Human Rights Act. We had that debate at the time. We scrutinised it and, from the Front Bench, we predicted the confrontation between the judges and the Executive in relation to a number of issues. The Minister does not wish me to, but I could go through real examples of where the Human Rights Act has failed this country’s interests. There have been instances in which the Human Rights Act has not properly protected human rights. There are examples in which it has not gone far enough and in which it has been deficient. We need to ensure that we have a Bill of Rights that is properly compatible with the European convention on human rights—
Sir Alan Beith: Will the hon. Gentleman give way?
Mr. Burrowes: I wish to take this argument further. We also need a Bill that is not wholly bound by the Strasbourg Court jurisprudence. That is not necessary; the convention does not require it. We need better to define the ECHR prescriptions and ensure that those principles are expressed so that they are relevant to all people. We need to ensure that we do that because when one considers the way in which the Government have dealt with human rights in the past 10 years—the right hon. Member for Berwick-upon-Tweed made a point in this regard——they are found wanting. That is an important context.
Sir Alan Beith: In a genuine search for truth, I want to establish whether the hon. Gentleman is proposing that we pass a new British Bill of Rights so that people can have a choice between two routes—either invoking the European convention in both British and Strasbourg courts or applying a British Human Rights Act. I shall leave aside the question of how one might impact on the other. Will we have a choice, or will the British Act depend on us abandoning our signature to the European convention on human rights?
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