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25 Jun 2009 : Column 337WH—continued
What are the limits of the rights of the individual against others? How far can the state arrogate to itself the power to act on individuals’ behalf? Incidentally, the state is not always the enemy of the individual. The history of this country shows how well the state can be the guarantor of the rights of the most vulnerable in our society. The national health service and our wider welfare system are part of the state in that context. In a democracy, what are the proper limits on the power of the majority? The hon. Member for Cambridge has often and eloquently described the importance of that question in the production of a decent and civilised society.
This is not really a debate about whether to protect individuals but about how best to do so. That brings into play the question of economic and social rights. We know that most of the rights—to education, health care, housing and the other things described by my hon. Friend the Member for Hendon—that would be covered are already given and protected in various bits of statute dotted throughout our constitutional arrangements. He mentioned housing—he has been active and diligent on that matter—but he did not mention, for example, all the action that the Government have taken already to protect home owners and vulnerable families. I will briefly run through our actions to show that there are other ways of protecting those issues that do not necessarily require constitutional entrenchment.
The matter is one for proper debate, but that debate is not about whether vulnerable people should be protected in such matters but about how best to protect them. I shall run through some of the action that we have taken and then point out the need to address the question of whether we should go further to provide some sort of constitutional protection in this and other areas.
Mr. Dismore: Will the Minister give way?
Mr. Wills: I shall, but first I want to remind my hon. Friend of some of the wonderful things that we have done. We introduced the home owner mortgage support scheme, which enables eligible borrowers to reduce their monthly mortgage interest payments to affordable levels for up to two years. We have made changes to the eligibility criteria for income support for mortgage interest. We have produced a mortgage arrears pre-action protocol, housing arrears pre-action scheme pilots and so on. We have taken a range of actions to try to protect some of the most vulnerable people and to ensure that they get the housing that they need.
Mr. Dismore: When I was talking about home repossessions, I mentioned the fact that the Government have taken a number of initiatives that have led to a reduction in the estimated number of repossessions. However, there is no overarching, underpinning right, which is what we are arguing for. Furthermore, will he support my Bill tomorrow?
Mr. Wills:
I am sure that my hon. Friend, as always, will make a valuable contribution when he introduces his Bill, but I am afraid that, as always, some issues will need to be resolved before we can support it. As ever, though, he makes a valuable contribution to the debate. He identified the important issue: there is no overarching or underpinning right. But should there be? That is the
precise debate that we need and want to have. And we have begun it in Parliament today—again, I thank him for bringing it forward.
I want to make three brief points, the first of which is about the role of responsibilities. We have heard a lot about that, and as always whenever a Minister mentions responsibilities in this context, there is a sharp intake of breath among all those who believe in the importance of human rights. It is seen as code for abandoning the key principles that underpin human rights—such concerns have been expressed today, particularly by the hon. Member for Cambridge—but it is nothing of the sort.
Many decent, tolerant people whose lives are made wretched by crime and antisocial behaviour are concerned that human rights legislation means that those making their lives a misery are immune from the consequences. All hon. Members have probably heard similar concerns at meetings in their constituencies. As we know, such perceptions are given currency by irresponsible and inaccurate reporting in sections of the media. It needs to be said that, as all hon. Members in the Chamber know, those perceptions are incorrect. However, that is no reason to be complacent, and we would be rash to hope that such misperceptions will not take root. They can and they do. We need to—and we do—work constantly to expose such myths.
Sir Alan Beith: But should the answer to that acknowledged misperception be to create a situation in which rights become contingent, other than through the criminal law, on behaving responsibly?
Mr. Wills: I agree that that is not the answer, but that is not what we are arguing for. I think that the right hon. Gentleman was kind enough to quote me stating that rights are not contingent. However, I want to develop this important point. It is right that the relationship between rights and responsibilities is scrutinised. It is important to get that right. It is a subtle and sophisticated relationship and so subject to misinterpretation.
I accept that the Government must play a central role in explaining better the intellectual framework of the legislation and how concepts of proportionality and balance are inherent in the Human Rights Act and human rights generally. Human rights legislation does not protect wrongdoers from the law. It gives them the right to a fair trial, which we all accept is fundamentally important in this country, but it does not prevent them from going to jail or being punished in other ways. We need to make the case that rights are indeed accompanied by responsibilities. To repeat the point, rights are not contingent on responsibilities—they are accompanied by them and balanced by them.
As the Green Paper, “Rights and Responsibilities: developing our constitutional framework” sets out—again, I commend the document to all hon. Members—the concept of the responsibilities that we owe one another has a long, distinguished intellectual history and is inherent in all instruments of human rights. I shall quote briefly from the Green Paper:
“The idea of the link between rights and responsibilities is not new, either in theory or in practice. In our daily lives we owe responsibilities to the state and to each other. Some of these are moral, and are rightly not a matter of legal duty or sanction; many others already exist in our legal system, in statute, in common law and through convention.”
The challenge is how better to remind people of the importance of individual responsibilities and give them greater prominence. Individual rights must be promoted and protected without losing sight of the essential contribution of responsibilities to collective harmony and prosperity.
David Howarth: The difficulty is that the Minister does not specify what the link is. He keeps talking about a link, but he has said that it is not a legal link and that there is no conditionality. From his argument, it seems that the only link is some sort of public relations or propaganda link and that somehow talking about responsibilities will change the attitudes of people who do not like the Human Rights Act. I cannot see how that works.
Mr. Wills: The hon. Gentleman is a very distinguished lawyer who knows how the Human Rights Act works. He knows that concepts of proportionality are inherent in that Act and in all human rights instruments. He also knows that the concepts of balance are inherent in such measures. How those concepts should be characterised—whether they are identical or whether they overlap or overlay the idea of responsibility—is a matter for debate.
David Howarth: Will the Minister give way?
Mr. Wills: If the hon. Gentleman gives me a chance to develop the argument, he can then tell me why he thinks that I am wrong. In the meantime, I ask him to consider these points. At this stage, we are launching a debate. We are not prescribing an outcome or setting out what the Bill should say; we are inviting contributions from the public at large—certainly from the House—about what we should do about the matter. These are complex and difficult questions for all the reasons that I have given, and, in different ways, every contributor to the debate has also said that. We need to have a discussion and a debate about the matter. If he thinks that we should do things differently, he should say so—but not right at this moment. I would like to develop my argument a little further and then I will happily to give way to him.
The solutions can come in a whole range of forms—they could be ethical, political or legal. They may or may not include prescriptions about the relationship between rights and responsibilities. All those wise men and women who were responsible for drafting the great human rights instruments have no such fear of discussing the role of responsibilities, and they have woven them through their drafting. I shall quote briefly from some of the human rights instruments to show that such an opinion has not been invented. I quote from one of the previous contributions to a new Labour debate. Article 17 of the European convention on human rights states:
“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
Article 29 of the universal declaration of human rights states:
“Everyone has duties to the community in which alone the free and fully development of his personality is possible.”
The preamble to the American declaration of the rights and duties of man states:
“The fulfilment of duty by each individual is a prerequisite to the rights of all.”
I could quote at great length on the matter. The point is clear: this is a proper subject for debate, and that is what we are asking for. We are asking for contributions from the public and hon. Members about what the solutions to this issue should be.
The second area of debate that we should engage on is whether the Human Rights Act is sufficient or whether we need to go further. Should we be complacent about our rights? Since the last great reforms of the suffrage, the development of the welfare state in the 20th century and the formulation of human rights in the wake of the atrocities of totalitarian regimes in the past century, there has not been an overwhelming demand for new rights in a constitutionalised way—rather, the debate has been about how best to entrench the rights and freedoms that we have and to render them more accessible.
After all, the Human Rights Act 1998 was not about creating new rights, but about bringing them home. It was about giving British people a chance to enforce those rights in a British court, rather than in Strasbourg. We have not discussed the advantages of that at length, but it brings considerable advantages for the citizen because, as hon. Members know, it gives British courts a greater margin of appreciation than they would otherwise have.
Do we need to go further to entrench the rights that we have? The admirable Joint Committee on Human Rights report suggests that we do. The Government have indicated openly that we are willing to take this question to the public. Nothing is immutable. Our rights and freedoms are the fruit of specific historical circumstances, as the hon. Member for Enfield, Southgate suggested. The times we are living through are sufficient evidence of that.
Finally, we must discuss how any new constitutional expression of our rights and responsibilities should be given effect. There are serious arguments for and against making them directly judiciable by giving people direct cause of action in the courts. It is politically illiterate to argue that unless all the provisions of a new Bill are directly judiciable, it would be worthless. The Select Committee did a very good job of teasing out these arguments and have come forward with a solution that will provide an important contribution to this debate.
I repeat that things do not necessarily have to be enforceable in law to have legal effect. The hon. Member for Enfield, Southgate did me the courtesy of quoting from an article that I wrote, although not wholly in approving terms. None the less, I ask him to consider this point: words really do matter, but they are not always connected to meaning. Language can obfuscate, confuse and deceive, but it can also crystallise understanding and inspire us. The courts are not the only source of action and progress in our society. How impoverished would our political discourse be if the only way that our politics could have any effect on society was through laws?
These are not easy questions, but profoundly difficult ones. I welcome the range of views that have been expressed today. As a society, we can move forward in
this area only if we can establish a broad consensus. That is what this debate should be about and I believe that it has been about that today. I welcome that and congratulate my hon. Friend the Member for Hendon for giving us the opportunity to have this discussion.
6.3 pm
Mr. Dismore: I do not want to delay hon. Members for too long, but I would like to respond to a few points. The first is the issue of rights and responsibilities. I tend to agree with the Liberal Democrat party on that, rather than the Minister. Unless there is conditionality, the responsibilities do not amount to a great deal. We all accept that conditionality cannot be used in these circumstances. As I said when introducing the debate, I have no problem with a general aspirational preamble along the lines of the historic documents read out by the Minister. However, when we start to talk about the duty to send one’s children to school, we get into the realm of the ridiculous, which could undermine the whole concept and make it a laughing stock.
I would like to answer the points raised by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) on social and economic rights. I am still not sure whether he understands what we are arguing for. Incidentally, the housing case from South Africa that I could not remember the name of was Grootboom. Our draft Bill puts forward three suggestions on housing. The first is clearly aspirational:
“Everyone has the right to adequate accommodation appropriate to their needs.”
That would have relevance only in relation to progressive realisation. We would expect the Government to report to Parliament about the progress towards achieving that goal annually. We suggest two other rights:
“Everyone is entitled to be secure in the occupancy of their home.”
“No one may be evicted from their home without an order of a court.”
Those are not progressive realisation rights, but interpretive rights. When courts come to interpret common law or statute law, it would be underpinned by the need to give effect to such rights.
We suggest two rights on health care. The first states:
“Everyone has the right to have access to appropriate health care services, free at the point of use and within a reasonable time.”
That is another aspirational right that would rely on progressive realisation, with the Government reporting annually. The second is:
“No one may be refused appropriate emergency medical treatment.”
That is a clear hard right that could be subject to judicial review if it were refused, but it is not directly enforceable in itself. We accept that we cannot make such matters fully judiciable, but we can make them interpretive, and that is how we will underpin those general rights. As for my right hon. Friend’s point about housing, we have particular rights, ideas and aspirations that feed into that. However, we have to interpret what some of those things mean. For example, if there was a judicial review about whether somebody was entitled to a particular benefit or scheme that the Government have announced, then that would be underpinned by the right of the court to interpret those schemes in
accordance with the basic rights set out in the Bill of Rights. That is why we have to square the circle and provide the constitutional underpinning.
There was a suggestion about old and new rights. The hon. Member for Cambridge asked whether this was the right time for such a Bill. I would say that it is the right time. The time to bring in such legislation is when people feel insecure in themselves, in their homes and in their economic position. That is when the issues on social and economic rights come into their own. Like me, I am sure that the hon. Gentleman holds surgeries in which constituents say, “My rights have been infringed.” Those are the social and economic rights about which we have been talking. They are the underpinning that, at present, does not exist. We should look at that matter now because we need to build on the debate about the Human Rights Act 1998. The Government failed in one respect of the Act. It was not that it was the wrong thing to do, but that they did not go out to sell it from the start. Ever since then, we have been trying to play catch-up, whether it be through myth busting, rapid rebuttal teams, worthy speeches that can be ambivalent or through being undermined by some Ministers who do not understand what we are talking about. I am talking about not the present Ministers but past Home Secretaries, who have said some rather peculiar things that feed popular misconceptions.
How do we move the debate forward? We must make the whole concept of human rights more relevant to people’s daily lives. We have tried to do that by some of the work that we have done in the Committee on the right to health care in care homes, or on adults with learning disabilities. We have shown how the Human Rights Act 1998 can be used to improve services. The other way of doing it is looking at rights that mean something to people in their everyday lives, which are, of course, the social and economic rights.
David Howarth: I do not disagree with anything the hon. Gentleman has said. The danger is in not what he is saying, but what other people might do given the opportunity to tear into the Human Rights Act. He has one trajectory that I might approve of, but others would use that opportunity for different sorts of change of which he and I would not approve.
Mr. Dismore: I find that a rather hard argument to follow. The hon. Gentleman calls it “the Human Rights Act in disguise.” Let us remember that the press have used the Human Rights Act to their advantage on many occasions, such as in freedom of the press issues, which come from the right of freedom of expression. So, there are double standards by the media, and there always will be. If we talk about things that are relevant to people’s everyday lives, that will chime with the public if not with some of the right-wing tabloid press.
The hon. Member for Cambridge talked about the mixing of the universal human rights and the civil rights of the citizen. I agree that there is a bit of mixing up. Inevitably, there will be blurring around the edges, but that is something that we draw out and identify in the report. There will be some rights—such as the right to vote—that are those of the citizen, and there will others that are universal rights. However, that does not mean that they do not all belong in the same document, because they do.
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