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25 Jun 2009 : Column 331WH—continued
Mr. Burrowes:
What is needed is clarification. The answer is no to choice and no to abandoning our signature to the convention. We need to clarify how the
ECHR applies to UK citizens. Such clarification would be welcome. Indeed, our debate highlights how welcome it would be.
Mr. Dismore: Will the hon. Gentleman give way?
Mr. Burrowes: No, I wish to make further progress.
What the Government seek in wanting to draw up a new constitutional settlement is important. We should consider their record over the last 10 years in seeking to enshrine freedom under the law. Do they have the credibility to take it forward, given that they have been willing to bypass basic legal principles in the name of administrative efficiency and control?
The Government have proposed detaining suspects for up to six weeks without charge; control orders; a plethora of criminal justice legislation, with a new piece of legislation every six months; and they have tried to remove judicial review in asylum cases. They have attempted to limit trial by jury at various times; and they have changed the burden of proof in some criminal cases to facilitate conviction. Those actions highlight an important transformation over the past 10 years.
We should also consider the increase in administrative penalties, imposed without trial; I think of the antisocial behaviour order and the fixed penalty notice. The Government have also taken intrusive powers to acquire and retain national databases giving detailed information on the law-abiding; and the law has often been dominated by trivia, with the Government devoting time to regulating on minor matters. The context is important. Ever more of our individual freedoms are being taken by the state, thus undermining individual responsibility and neighbourliness. The breakdown in the rule of law over the past 10 years is making us less safe and is eroding confidence in what was once the best and fairest justice system in the world. That is relevant, as one has to ask whether the Government have the credibility to take the matter forward. I give two examples from the Green Paper on the subject.
The first is about good administration, which is referred to in paragraph 3.39. The question is whether administrative principles lead to good administration being justiciable. We should remember how the Government have treated the parliamentary ombudsman over the last few years. They rejected her recommendations and as a result have undermined respect for that office. Such Government failures could lead to a groundswell of concern that they are not doing their job properly. Not respecting the role of the ombudsman could lead to support for some justiciable rights on such matters.
The second example is in relation to jury trial, which was referred to by the hon. Member for Cambridge. A good argument can be made for a right to jury trial to be enshrined in a bill of rights, but where do the Government stand on the matter? They have a bad history in seeking to remove jury trial. Despite votes to kick out Government proposals on limiting jury trial, they still continue to perpetuate the debate. Indeed, paragraph 3.30 states:
“There is also a legitimate debate over whether some cases, particularly serious fraud cases, are simply too complex to present properly to a jury and therefore, jury trial is an unreliable way of delivering justice in those cases.”
The Government are still lukewarm about that important principle. Perhaps additional support is needed to ensure that it is enshrined in a Bill of Rights, given their ambivalence on the subject.
In some ways, that is in contrast to the commentary and consideration of the Joint Committee’s recommendations on whether economic and social rights should be incorporated in a new Bill of rights. However, I recognise the scepticism of the right hon. Member for Berwick-upon-Tweed on those rights being justiciable, particularly on whether they would weaken rights that should properly be included in a Bill of Rights.
Concern was expressed by the Joint Committee, and must be expressed again, on how those rights would be enforced. The Government do not seek to go down that route at this stage in the continuum, but where do they wish to go? It is a matter of great concern, given that we want to reassert the authority of Parliament, that the Government should think of abdicating responsibility for deciding how scarce resources should be allocated to unelected judges.
In an article in The Sunday Times on 22 March, the Minister referred to “constitutional expression”, saying:
“Words have power in their own right.”
Words certainly can have power: they can raise hope. Constitutional documents may contain symbolism and lead to aspirations, as well as enforceable rights. However, words without legal force will mean us ending up with those imaginary rights that Bentham thought would lead to anarchy in France. I do not suggest that that would be the case today, but would it not further perpetuate people’s disconnection with Parliament?
People believe that Parliament should be the place to deliver such economic and social rights, scrutinising legislation to ensure that duties are explained and delivered. However, such rights would not deal with what many people say they want when answering polls on whether they want a decent house or a decent health service. Do they want to see such things properly shown and exhibited in a constitutional settlement rather than having the Government delivering them?
The Government would have us believe that a quiet revolution is in place, that it will lead us to a next stage, and that all is rosy in the constitutional garden. Thankfully, legislation on the subject will not happen until after the next general election. We should certainly agree on that point, because we shall then have a new Parliament. We shall then have a new Government—one that has not been guilty of constitutional vandalism in that garden, has not been trampling on centuries-old liberties and has not been engaging in over-regulating conduct.
Although the Government want us to deliberate on the matter and discuss it—we should try to reach consensus—we will not be able to reach that new dawn of constitutional change if the Government do not recognise the importance of restoring trust and confidence. That trust and confidence has been broken by excessive state prescription and a lack of respect for the need to restore tradition, freedom, justice, liberty and tolerance. The Government have failed by neglecting that need, and it will indeed take a general election for it to happen.
4.8 pm
The Minister of State, Ministry of Justice (Mr. Michael Wills): This is a welcome debate, and I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on securing it. It is a profoundly important matter, and we heard important contributions from everyone who has spoken. I am grateful to all who contributed to the debate. There are five of us in this shady Chamber this afternoon. My hon. Friend the Member for Hendon pointed out that this is the first time that Parliament has had a chance to debate the subject, but from this small and select gathering I am sure that those important contributions will ripple out to engage the nation in due course—and so they should.
The Prime Minister’s recent statement on democratic renewal showed the Government’s continuing commitment to the process of radical constitutional change. It is not constitutional vandalism, as the hon. Member for Enfield, Southgate (Mr. Burrowes) suggested, but profound and radical constitutional reform.
We brought about devolution, which most people will agree has been a success. It was sometimes a difficult and challenging experience but it was none the less successful. No one watching the recent Mayoral elections in London would have seen anything other than a vigorous democracy; even if it did not produce the result that some would have wanted, it was democracy in action, and I think that the people of London appreciated that—just as the people of the United Kingdom appreciate all the devolution measures that we have brought about.
We also brought in the Freedom of Information Act 2000, and we have seen the benefits of that throughout its history. In recent weeks, that Act has been particularly challenging for many Members of the House—and indeed for the institution of Parliament.
Nevertheless, anyone looking at events in recent weeks would agree that the Freedom of Information Act has done nothing but good for the constitutional health of our democracy. We also introduced the Human Rights Act 1998, which I shall talk about at greater length shortly. It was a profoundly important measure that has already proved itself to be of great value to the people of this country, and will continue to do so, if left on the statute book.
We have been criticised for our attention to constitutional reform, not by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the hon. Member for Cambridge (David Howarth) or their party, but by many others, including commentators and those in the Conservative party. When we produced the Green Paper on the governance of Britain, commentators asked, “What does all this mean down the Dog and Duck? Why are you concentrating on this?” Regularly we hear, “What’s this got to do with bread-and-butter politics?” Well, I think that we have seen the reason we have paid it such attention; it is instructive how many people in this place have suddenly developed an interest in constitutional reform in recent weeks.
Last August the Joint Committee on Human Rights produced a report. I pay tribute to that report and the work of my hon. Friend the Member for Hendon (Mr. Dismore) and his Committee colleagues in producing it. It was an extremely important contribution to the debate, as has been evidenced in contributions today. It will continue to feature as a centrepiece of the national
debate that the Government began following the publication of the March Green Paper on a Bill of Rights and Responsibilities. I commend that Green Paper to everybody—it was not always clear from today’s contributions that it has been read thoroughly.
As the Green Paper points out, how individuals should live together, what rights and freedoms we should enjoy in relation to each other and against the state, and how they should be balanced by the responsibilities that we owe each other, are among the most fundamental questions in politics. They are not abstractions or removed from the practical politics of jobs, housing, health care and education, precisely because such constitutional arrangements determine how power is distributed in our country—where and how it is located and what the process should be for changing that location. Given that these questions are about power, they determine how every other question in our national life will be answered.
We believe that this is the right time for a debate about whether we should have a new Bill of Rights and Responsibilities, potentially leading to a written constitution, and that that debate should be had extensively and comprehensively with the British people. At the heart of the Government’s Green Paper is a central question: are there rights and responsibilities, over and above those entrenched in the Human Rights Act, that are so fundamental to our society and sense of ourselves that they should be entrenched in a way that renders them part of our constitutional fabric and not easily vulnerable to the vagaries of party politics and elections?
We specifically did not raise the subject of the Human Rights Act, in this context, as a matter for debate. In my view, the Act is not strictly relevant to the subject of this debate, but because it was raised so often, I shall, with your indulgence, Miss Begg, address some of the points made about it. The Government are proud to have introduced the Act and do not resile from it at all. It has already proved itself to be of enormous benefit to the people of this country, be they powerful newspaper magnates, powerful campaigning organisations, such as the Countryside Alliance, or ordinary individuals seeking the protection of the Act—for example, vulnerable, elderly couples seeking to spend their last years together, potentially separated by a state institution, but able to remain together through recourse to the Act. It contains profoundly important protections for every individual in this country, and we do not think, therefore, that the matter needs to be debated. That is why—I say this in answer to my hon. Friend the Member for Hendon—we did not include the question of the scope of the Act within the consultation. We shall consult on it separately, because it is a separate issue, in this context, and so should be dealt with separately.
Mr. Burrowes: The Minister has extolled the supposed virtues of the Human Rights Act. So why are the Government consulting on it separately? What is the rationale behind that? If it does not need changing, why consult on it?
Mr. Wills:
I am grateful to the hon. Gentleman for enabling me to clarify my point. I said that we are consulting on the scope of the Act. He might recall that my hon. Friend the Member for Hendon referred to the YL case, which was heard in the House of Lords and dealt with the scope of the Act. As my hon. Friend has
pointed out persistently—he did so again today—the House of Lords decision was unexpected. I do not think that it was in the minds of many of those who voted for the Act that its scope should be so restrictive. We have given an undertaking to deal with, and have dealt with, the consequences of that decision. I am afraid that I do not agree with his characterisation of our actions. Did he call it a patch-up? Would he remind me of his exact phrase? I certainly disagreed with it, but I would like to remember what I am disagreeing with.
Mr. Dismore: I said that it was a sticking plaster, because it dealt with just one aspect of a broader principle. I accept the direct consequence of the YL case for care homes, but the judgment has much wider implications. Also, will the Minister indicate the time scale for the consultation?
Mr. Wills: I am extremely grateful to my hon. Friend. I remember now why I disagreed with him.
4.16 pm
Sitting suspended for Divisions in the House.
5.41 pm
Mr. Wills: As hon. Members will recall, I was talking about the Human Rights Act 1998, and I wanted to pick up on a few of the points that were made about it in the debate. The hon. Member for Cambridge and the right hon. Member for Berwick-upon-Tweed, who is sadly no longer in his place, criticised the way in which the Government have promoted and defended it. They said that we have not done so, but I am afraid they are profoundly misinformed.
We have an active rebuttal unit in the Ministry of Justice. When myths and misperceptions about the 1998 Act are promulgated in the press and elsewhere, we robustly rebut them. We defend the Act, as I have today. Above all, we set up the Equality and Human Rights Commission, not only to defend the Act, but to do the job of promoting a human rights culture in this country. That is profoundly important for the all the reasons that right hon. and hon. Members have given. We agree with everything that has been said about the importance of human rights in this country, which is why we set up the EHRC with a £70 million budget, to try to ensure that the people of this country understand the importance of human rights.
Although the hon. Member for Enfield, Southgate may disagree about some of the practical implications, even he and his party would agree on the fundamental importance of human rights. We are committed to the 1998 Act and to ensuring that there is a human rights culture in this country that properly embeds fundamental protections of the freedoms and liberties of the individual against the state. In the end, that is what it is about, and we know from recent history in Europe and elsewhere just how fundamental it is.
That brings me neatly to point made by the hon. Member for Enfield, Southgate, who described the trampling of liberties. I do not want to go case by case over the examples that he gave—they have been the subject of elaborate debate in the House and elsewhere—but I want to refer him to the estimable Convention on Modern Liberty, which has already been cited in the
debate. Like me, many of his party took part in its deliberations. He will be well aware of the approach that the convention took.
The contribution of Lord Bingham, one of the most distinguished jurists in recent years in this country, is enshrined on the convention’s website. It was lauded by almost every speaker at the convention and certainly by the organisers, who took it as one of the finest contributions of that important day’s deliberations and debates. I draw these remarks to the attention of the hon. Member for Enfield, Southgate in particular. In his much-acclaimed contribution to the convention, Lord Bingham said:
“It seems clear that the last half century has seen an erosion of values once held dear.”
So far, I think that the hon. Gentleman would agree—I hope that he would. Lord Bingham went on to say:
“This is not the work of one party or one government, certainly not of the present government which in enacting the Human Rights Act coming into office took the single most powerful step in another direction”.
That is why the Human Rights Act is so important, and why it is important that it is not tampered or trifled with in any way.
The hon. Gentleman quoted Lord Hoffmann in a recent speech. I am aware of that speech, and I was interested by the hon. Gentleman’s characterisation of what the speech said. I do not want to linger too much on this point, though, as I wish to move on to the substance of the debate, which is the Green Paper on the Bill of Rights and Responsibilities.
Mr. Dismore: The Committee report, actually.
Mr. Wills: The Committee report; sorry. I stand corrected, quite rightly, by my hon. Friend.
I draw the attention of the hon. Member for Enfield, Southgate to what Lord Hoffmann said in his speech:
“I have no difficulty about the text of the European Convention or its adoption as part of United Kingdom law in the Human Rights Act 1998.”
That is the learned Lord Hoffmann, now a mentor to the Conservative party in formulating its policy. That mentor said:
“There is nothing to be gained by fiddling with the language.”
As yet, I have heard no contribution from the Conservative party suggesting anything other than that the Conservatives are going to fiddle with the language of the Human Rights Act. I commend their mentor’s words to them and hope that they will be guided by them.
Moving on to substance of the debate, should we move beyond the Human Rights Act and build on it? Are there rights, protections and responsibilities so fundamental to our way of life, our society and our sense of ourselves in this country that they should be entrenched in a way that renders them not susceptible or easily vulnerable to the vagaries of party politics and elections? These are profound questions, particularly now, when so much that we have taken for granted in recent years clearly can no longer be taken for granted. They are also difficult questions. Rights and freedoms always carry with them the cost of conflict and raise agonisingly difficult questions, precisely because they are about power and the distribution of power in society.
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