1 Mar 2013 : Column 573

House of Commons

Friday 1 March 2013

The House met at half-past Nine o’clock


The Chairman of Ways and Means took the Chair as Deputy Speaker (Standing Order No. 3).

Charlie Elphicke (Dover) (Con): I beg to move, That the House sit in private.

Question put forthwith (Standing Order No. 163).

The House divided:

Ayes 0, Noes 45.

Division No. 168]


9.34 am


Tellers for the Ayes:

Mr David Nuttall


Dr Thérèse Coffey


Ali, Rushanara

Barker, rh Gregory

Berger, Luciana

Bingham, Andrew

Boles, Nick

Bottomley, Sir Peter

Brake, rh Tom

Burns, rh Mr Simon

Campbell, Mr Alan

Carmichael, rh Mr Alistair

Clark, rh Greg

Dakin, Nic

Davies, Philip

Duncan, rh Mr Alan

Dunne, Mr Philip

Elphicke, Charlie

Evennett, Mr David

Fallon, rh Michael

Field, Mark

Fitzpatrick, Jim

Gauke, Mr David

Goodman, Helen

Green, rh Damian

Hancock, Matthew

Harris, Rebecca

Heath, Mr David

Hendrick, Mark

Hollobone, Mr Philip

Irranca-Davies, Huw

Johnson, Joseph

Knight, rh Mr Greg

Leadsom, Andrea

McVey, Esther

Milton, Anne

Mowat, David

Murray, Ian

Newton, Sarah

Rees-Mogg, Jacob

Rutley, David

Sanders, Mr Adrian

Slaughter, Mr Andy

Soubry, Anna

Stewart, Rory

Truss, Elizabeth

Vaizey, Mr Edward

Tellers for the Noes:

Mr Christopher Chope


Bob Stewart

Question accordingly negatived.

1 Mar 2013 : Column 574

Human Rights Act 1998 (Repeal and Substitution) Bill

Second Reading

9.46 am

Charlie Elphicke (Dover) (Con): I beg to move, That the Bill be now read a Second time.

I have brought the Bill to the House today because human rights are important. Human rights matter, but they are in crisis today, with a substantial majority of the British people regarding human rights as a charter for criminals and the undeserving. A new settlement is needed to restore trust and confidence in human rights—a settlement that works for Britain.

Before 1998, the United Kingdom had a home-grown human rights settlement that worked well. It had been built up over centuries, and it was accepted and even respected by the British people. In 1998, the Human Rights Act brought the European convention on human rights directly into British law, along with the European Court of Human Rights’ body of case law. That change has, without doubt, transformed human rights in the UK in ways that are wholeheartedly rejected by the British people.

It is not difficult to see why there is so much public concern. We see many cases reported in our newspapers day after day, week after week, that give us a sense that a great injustice has happened and that the balance is not right. I will give the House some examples. An alleged Rwandan war criminal, suspected of committing crimes in the 1994 Rwandan genocide, could not be deported because he could not get a fair trial in Rwanda to answer for his crimes. Today, he is to be found driving a taxi around Essex. I do not think that that strikes the right balance, and I think that most people would agree with me.

A Honduran man could not be deported to answer charges of murder because of the family life that he had established in the UK since he arrived here after escaping from custody in Honduras. He killed someone, then came here and established a family, and was able to use that family as a shield against facing justice for the crimes that he is alleged to have committed.

A failed asylum seeker could not be removed from the UK even though he had committed a string of criminal offences, including a hit-and-run incident in which he killed 12-year-old Amy Houston, because of the family life that he had established in this country illegally. I am sure that it strikes us all as odd, if not thoroughly wrong, that someone can deny family life to another yet have their own family life protected.

Dr Thérèse Coffey (Suffolk Coastal) (Con): I strongly agree with my hon. Friend. What would he say to people who are very concerned about supposed family life being used as an excuse? If a family is together, does it matter where in the world they live? Perhaps the wife or husband and children should move back to their own country. That view is often put forward; what would my hon. Friend say about that?

Charlie Elphicke: That is a fair point. I think we need to look at the individuals asserting a right. They might say “I have established a family; I have a right to family

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life” and we say, “Yes, family life is important and it does matter”. In view of the fact that someone else’s family life has been taken away, however, how could anyone stand on that right? How can that be right? A key part of my Bill is that anyone who asserts a right cannot just stand on that right and say “That’s my right”. The courts need to look at the wider circumstances of the case, including at the person’s conduct, to establish whether they come to justice, as it were, with clean hands themselves. Their own conduct should be examined and taken into account. We need to assess whether it is in the interests of justice in the round for those people to be able to assert that right.

Mr Christopher Chope (Christchurch) (Con): I wholeheartedly agree with what my hon. Friend has said and I congratulate him on bringing this Bill forward. He refers to the common law principle of equity, which has always been part of the English law. It means that people cannot expect to get a remedy from the courts if they do not come before it with clean hands. Does my hon. Friend believe that that is the essence of what we are talking about—restoring the principles of equity?

Charlie Elphicke: I absolutely agree with my hon. Friend who makes a characteristically forceful argument. For too long, human rights have been interpreted under the convention in what lawyers have called an “objective test”. It asks people “Do you have a family?” and “Do you have a right to family life?”—and if the answer is yes, end of story. The British common law way, however, asks people “Do you have a family?” and if the answer is yes, it says it is important to preserve it, but it also asks whether they have acted in such a way according to a subjective test to establish whether that right should be allowed as far as that person is concerned. That is a key point, which goes to the heart of why human rights are in such crisis in Britain today, and it is a key plank of the change I am seeking to make through the Bill.

There are more cases. A Pakistani man was found by the deportation tribunal to be an al-Qaeda operative who posed, and still poses, a serious threat to the national security of the United Kingdom, and another man was found to be willing to participate in the former man’s plans for a mass casualty attack in the UK—in other words, these people were plotting terrorism. The man could not be deported back to Pakistan because of the risk that he would be maltreated by the Pakistani intelligence service.

Bob Stewart (Beckenham) (Con): If someone cannot be tried properly in their own country, the International Criminal Court may well try him or her—and I speak as someone who has given evidence for the prosecution in five ICC trials. I think it is quite a good system. It is one way round the problem we are discussing.

Charlie Elphicke: I thank my hon. Friend, who speaks with great experience. He is not only a war hero himself, but has pursued justice and kept the peace in dangerous places throughout the world for so many years, dedicating his life to such causes. I completely agree; there should be such a system. If we have a system in which we have to second-guess the justice of other countries, putting

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them down by saying they are not good enough and will not come up to the standard, perhaps there should be an international mechanism for people to be tried and made to answer their crimes.

I feel very uncomfortable about the fact that someone can butcher people and commit genocide in Rwanda, yet still be allowed to drive a taxi around Essex today. That is wholly wrong. I worry about the passengers in that taxi, who may not know the driver’s background, previous conduct or behaviour. They may be literally putting their lives at risk by getting into that taxi. My hon. Friend’s idea of having an international court for these cases is one that should be explored.

Rory Stewart (Penrith and The Border) (Con): Will my hon. Friend clarify why the idea of an international court should be considered, given that the problem with the European Court of Human Rights is presumably the entire notion of trying to create a set of universal international rights that can be applied irrespective of the political codes of individual countries? Would not the movement from the European Court to an international court simply exacerbate the problems that my hon. Friend describes?

Charlie Elphicke: I thank my hon. Friend for his intervention. I think either option would provide a way forward. The issue I am touching on is justice in Britain and how to ensure that people who are a threat to our national security, who threaten the livelihoods of others or who have committed criminal acts are allowed to escape answering to justice anywhere. We seem to be saying that because the courts of those people’s countries are not safe, they should not face justice at all. That is wrong-headed, and I believe most British people would say that it is wrong-headed and not the right way to go.

Let us take the example of Abu Qatada, a Jordanian who could not be deported to Jordan on national security grounds because of the real risk that evidence obtained by torture might be submitted against him in his own country’s trial for terrorist offences. The answer of the current code is, “Well, let him not face justice at all.” I think that is unwise, and that is what the debate is about. There is no real risk that Qatada himself would be tortured, and the ruling was made despite an earlier finding by the deportation tribunal that the case for his deportation had been well proved on national security grounds as he was seen by many as a terrorist spiritual adviser, whose views legitimised violence.

Andrea Leadsom (South Northamptonshire) (Con): Does my hon. Friend agree that it is extremely difficult for British taxpayers to face the fact that they are going to have to pay huge sums of money for the security of an individual whose outlook on life threatens their style of life and existence? Is it right for British taxpayers to be footing the bill?

Charlie Elphicke: I do not think it is, and I noted in an answer given by the Home Office to a question from the Chairman of the Home Affairs Select Committee that the legal aid bill in the case of Abu Qatada has been over £500,000—a substantial investment of taxpayers’ money. Most people in this country would say that that money was not well spent.

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Andrew Bingham (High Peak) (Con): I congratulate my hon. Friend on his Bill. The Abu Qatada case got a lot of publicity. Does he agree that the public’s sense of outrage about this case has created disaffection not only with the Human Rights Act, but with democracy generally and even with this place altogether? People have seen how powerless and helpless we appear to be to bring this man to the justice that he should surely meet.

Charlie Elphicke: I completely agree with my hon. Friend’s timely and telling intervention. This case has undermined confidence in human rights, but it has also undermined people’s confidence in Parliament and its ability to legislate, to be sovereign and to stand up for Britain.

In another case, an Albanian man returned to the UK illegally after being told to leave. Following his conviction for robbery in this country, he could not be deported— despite being convicted of yet another crime since his return—on the grounds of the family life he had established in the UK. A Sudanese man was convicted of raping a 12-year-old girl in the UK. He could not be deported because of the risk that he would be subjected to maltreatment in the Sudan. Most people would have very little sympathy with a paedophile rapist and would think that this man should not be in the UK. Despite being found by a deportation tribunal to pose a threat to UK national security, an Algerian man could not be deported to Algeria because of the risk that he might commit suicide while in custody there. All those cases have caused widespread public concern, which is why a key plank of the Bill is that the Human Rights Act should be repealed.

Let us look at the opinion polls. A few moments ago, my hon. Friend the Member for High Peak (Andrew Bingham) pointed out the level of public concern. For nearly a decade, opinion polls have consistently shown that the British people reject the UK’s current human rights settlement.

In 2008, a research project was undertaken by the Ministry of Justice—and let us be honest, that Ministry is not exactly sceptical of human rights as an institution and under the previous Government it was not exactly sceptical of European human rights provisions either. Notwithstanding that, having analysed results collected between 2004 and 2006, it found that 57% of respondents agreed that

“too many people take advantage of the Human Rights Act”,

while just 14% disagreed. Forty per cent. believed that the Act

“has caused more problems than it has solved”,

while 24% disagreed with that. Despite the existence of the Act, 56% agreed that

“this country lacks a shared sense of rights and responsibilities”.

So a central plank of my Bill is that we should talk not only about rights, but about responsibilities. Given that that was a Government-sponsored report on the policy of the then Government, it strikes me as a less than ringing endorsement of the human rights settlement that the country has today.

In May 2010, a YouGov opinion poll found that 53% supported the introduction of a British Bill of Rights to replace the Human Rights Act, while 24% wanted to

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keep the Act. I believe that, in presenting the Bill, I am acting in line with the wishes of the majority of the country.

In February 2011, another YouGov poll found that 63% thought that the British Parliament and the Supreme Court, rather than a foreign court, should have the final say on human rights matters, while 25% thought that it right that we should be subject to the Strasbourg court when it comes to appeals. Fifty-seven per cent. believed that

“Britain’s membership of the ECHR has been abused by lawyers making spurious cases on behalf of criminals and on balance a bad thing”,

while only 19% believed that

“Britain’s membership has been a valuable protection against the government ignoring the human rights of British people and on balance a good thing”.

Rebecca Harris (Castle Point) (Con): My hon. Friend is making a very good point in citing evidence from opinion polls, but do we not all know on an anecdotal basis that the European Court of Human Rights, and human rights in general, have, tragically, become a watchword for abuses of the system? Indeed, they have effectively become a joke, and that is very damaging to the whole concept of human rights.

Charlie Elphicke: I could not agree more, and that is precisely why I am presenting the Bill.

The February 2011 YouGov poll also found that 55% thought that Britain should leave the ECHR altogether, and that we should have our own Bill of Rights instead, with the British Supreme Court as the final court of appeal. Just 24% thought that we should remain part of the ECHR.

Mr David Nuttall (Bury North) (Con): Does my hon. Friend agree with that opinion poll finding? If so, why does the Bill not reflect the opinion that we should withdraw from the European convention on human rights?

Charlie Elphicke: That is a telling question. I tabled the Bill as a Member of Parliament and a law-maker, in relation to the laws of the land. Whether we remain signatories to the convention is a matter of royal prerogative, and a matter for the Privy Council and the Executive of the day. I drafted the Bill in such a way as to leave it open to the Executive to decide whether they wished to remain party to the convention or to withdraw from it altogether. I have sought to establish the cornerstones and foundation blocks of a uniquely British settlement, and to provide optionality in regard to whether we remain a signatory to the convention. I myself have grave doubts about the convention, but I nevertheless wanted to keep that optionality, just in case the Government of the day were not prepared to go as far as that.

Philip Davies (Shipley) (Con): I wholly agree with everything that my hon. Friend has said so far, but may I take up the point made by my hon. Friend the Member for Bury North (Mr Nuttall)? Surely, even if the Bill were passed, unless we withdrew from the European convention, we would merely be replacing perverse rulings in the United Kingdom courts by even more perverse rulings in the European Court of Human

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Rights. The Bill might introduce an extra barrier, but it would not stop the perverse rulings that both my hon. Friend and I object to so much.

Charlie Elphicke: That is a fair point. The European Court in Strasbourg does make an awful lot of rulings that right-thinking British people would consider entirely perverse. What I have sought to do with the settlement proposed in the Bill is take the European convention out of the UK legal system so that it is not directly effective, and need not be applied by UK judges day in, day out. As my hon. Friend says, if we remain party to the convention, on a case-by-case basis—I think that there are about 10 cases a year—there would potentially be rulings against the UK, and the Executive would then have to consider putting provisions before Parliament to change that, or not. My hon. Friend is right to draw attention to the potential risks, difficulties and challenges.

Jacob Rees-Mogg (North East Somerset) (Con): I want to raise the question not of the perversity but of the legitimacy of the rulings of the European Court of Human Rights. They have no support from the democracy of the United Kingdom. Allowing foreign judges to rule on our laws lacks legitimacy, even if their judgments are sensible.

Charlie Elphicke: I have a great deal of sympathy with that view, and, as my hon. Friend will have noted from the polling evidence that I quoted, a large majority of the British people have an enormous amount of sympathy with it, too. I hope that, if the Bill is given a Second Reading and if my hon. Friend becomes a member of the Bill Committee, he will table an amendment to clarify the provision in question, and we can engage in a wider debate on it.

In March 2011, a YouGov poll found that 51% felt that human rights laws were bad for British justice. Significantly, there was strong support for rights being dependent on the conduct of the individual asserting them, and 64% rejected the motion that everyone should be entitled to have their human rights protected even if they had broken the law themselves. That is a key aspect of what I said earlier about the objective versus the subjective test. As my hon. Friend the Member for Christchurch (Mr Chope) pointed out, British people have an instinctive feeling about the issue of coming to court with clean hands. The principles of equity run deep in the psyche of the British people.

Seventy-five per cent. of those polled believed that the Human Rights Act

“is used too widely to create rights it was never intended to protect”.

That too is a key issue, which people often talk about. In February 2012, a YouGov poll found increased concern, with 72% agreeing that

“human rights have become a charter for criminals and the undeserving.”

Just 16% disagreed with that proposition.

The polling evidence highlights the extent to which the British people reject the UK’s current human rights settlement. People clearly and consistently do not feel

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that the right balance has been struck to restore public trust in our basic rights. The UK’s human rights settlement ought to be revised, and that is why I tabled the Bill.

It is worth reflecting on the UK’s history in relation to human rights. We have a long and proud history of protecting the rights of individuals against the Government. The development of those rights—which we now call “human rights”—stretches back at least 800 years, and includes Magna Carta and the 1689 Bill of Rights. Various settlements and Acts have changed the constitution over a long period. Many people think that we do not have a written constitution, but of course we do: it exists in many different documents.

The magic thing about our constitution is that, because it exists in those various documents and because it was not set in stone 200 years ago like the American constitution, it is easy to change and easy to keep up to date. It is easy for our constitution to bend like a reed when the breath of fresh air of social change sweeps across the country, and I think that it works well.

Bob Stewart: So my hon. Friend’s change is a two-phase change. Phase 1 involves making a change here, and phase 2 involves changing the European Court of Human Rights so that it accords with what we want in this country.

Charlie Elphicke: My hon. Friend is right. The European convention is a document that was drafted 50 years ago following the tyranny of the totalitarian regimes in the second world war and the blood that they spilt across Europe. We ought to have a document that is living. One of the biggest problems with the convention is that it is not a living document, but a document that was set in stone 50 years ago, and it has not kept up with or changed with our times. Europe has moved on, but the European convention has not moved on with it. One of the key problems with the whole idea of having written constitutions is that they cannot change over time. The Americans spend an inordinate amount of their time arguing about whether they have the right to bear arms, which strikes us as absurd. We in the UK can easily change things.

Jacob Rees-Mogg: I thought I should remind my hon. Friend that the right to bear arms is in our own Bill of Rights, where there is the right to bear arms because of the need to maintain a Protestant militia—which fortunately has gone out of fashion in more modern times.

Charlie Elphicke: My hon. Friend is absolutely right: when something goes out of fashion in the UK, we change things and move on. We are able to adapt. The Americans copied that provision from our provisions, but are now stuck with having continual arguments about it, whereas for us it is a fragment of our history.

Individuals do not just have basic rights; they also have basic responsibilities that reflect what is required for a civilised society to function. That is at the heart of the social contract that underpins our way of life. It has long been understood that the nature of the social contract will change over time: what is acceptable in one age is not acceptable in another, and vice versa. It is in the nature of the UK’s legal and constitutional structure that changes in the social contract can be accommodated

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peacefully and effectively. As the UK has no formal codified constitution, laws can be passed by this Parliament, as required, to keep pace with social change. That has worked well for us. We last had a revolution some centuries ago, whereas across Europe and elsewhere revolutions are commonplace. Our constitution can, and does, adapt; it keeps up with the times.

We have drawn on that heritage very helpfully in respect of the European convention on human rights, which we signed in 1950. We played a significant role in drafting it. It developed in the wake of the tyranny and inhumanity that characterised the fascist powers defeated in the second world war, and with an eye on the Stalinist terror behind the iron curtain. The purpose was to hold states to a range of basic human rights, to prevent the repugnant treatment of individuals in some parts of Europe in the 1930s and 1940s from ever happening again, but the UK resisted joining the European Court, the institution that would adjudicate on individual’s claims that the state had violated their convention rights.

The UK was concerned about the potential for unintended consequences and loss of national autonomy. Different nations have different cultures and diverse social norms that are unsuited to a one-size-fits-all approach. That is why so often our discussions about human rights go hand in hand with a wider discussion about Europe and how we can shape our way of life and our own unique British identity within the context of a larger organisation across the channel.

For a long time the binding jurisdiction of the Strasbourg-based Court of Human Rights and the ability of individuals to file claims that their convention rights had been breached was optional for convention states. It was only in 1994 that the UK agreed to the jurisdiction of the Court, including in cases brought by individuals, becoming a compulsory part of the convention. Even then, our agreement was reluctant.

The convention, including the rulings of the European Court of Human Rights, in cases to which the UK is a party is binding on the UK as a matter of international law. As discussed earlier, whether we should remain part of the convention is a wider question, which I have not sought to answer directly through the Bill, although I hope that when my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) serves on the Committee scrutinising it, he may wish to explore the issue further. Under the UK’s dualist approach, however, treaty provisions do not have force in the UK unless Parliament legislates to incorporate them, and it was long felt that the incorporation of the convention into UK law was unnecessary as it already protected the convention rights.

We then had the Human Rights Act 1998. Soon after winning power in 1997, the Labour party introduced the legislation that eventually became the Human Rights Act. Effectively, it copied and pasted into UK law the text of the convention rights that the UK has accepted internationally. Former Prime Minister Tony Blair wrote in the White Paper that this

“will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg. It will enhance the awareness of human rights in our society. And it stands alongside our decision to put the promotion of human rights at the forefront of our foreign policy.”

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It will be recalled that putting human rights at the forefront of our foreign policy did not last too long and the whole ethical foreign policy idea was soon ditched, but the Human Rights Act has lived on a little longer.

The main provisions of the Human Rights Act came into force in October 2000. Most of the convention rights are very sensible—the right to life, prohibition of torture, prohibition of slavery, the right to liberty, the right to a fair trial. In fact we would not disagree at all with most of the convention. The issue has always been how these rights are interpreted by the European Court of Human Rights, which is a judicially activist court.

Difficulties have also been caused by section 2 of the Human Rights Act, which inserts the human rights code and the Strasbourg Court’s rulings directly into our legal system, so British judges have to apply those provisions in Britain whether they like it or not. My Bill would revise that section. Section 2 requires British courts, when applying convention rights, to take into account any judgment of the European Court of Human Rights that they believe is relevant. UK courts have taken this to mean they should follow clear and consistent jurisprudence from the Strasbourg Court unless there are exceptional reasons not to do so.

Real mischief—even evil—is done by section 3 of the Human Rights Act, which obliges British courts, along with everyone else, to interpret and apply UK legislation in a way that is compatible with the convention rights in the Human Rights Act, so far as that is possible to do. When introducing the Human Rights Bill, the then Government was clear that section 3 would introduce a radical change. They said:

“The Bill provides for legislation—both Acts of Parliament and secondary legislation—to be interpreted so far as possible so as to be compatible with the Convention. This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so.

This ‘rule of construction’ is to apply to past as well as to future legislation. To the extent that it affects the meaning of a legislative provision, the courts will not be bound by previous interpretations. They will be able to build a new body of case-law, taking into account the Convention rights.”

In other words, the Human Rights Act semi-entrenched the convention into our legal system and our constitution so that both past and future provisions of law have to be read in line with the convention or the rulings of the European Court. More than that, if the legislation is not totally incompatible, violence can be done to the language. That is a real threat to parliamentary sovereignty, as my hon. Friend the Member for High Peak (Andrew Bingham) made very clear.

Jacob Rees-Mogg: This is an incredibly important point, because this is a constitutional extension of the most extraordinary kind. It makes the Human Rights Act superior legislation, a concept previously unknown in the British constitution, arguably with the exception of the European Communities Act 1972. Having superior legislation is a direct threat to our constitution and the ability of Parliament to bind its successors.

Charlie Elphicke: I entirely agree. In my view, this is the worst part of the Human Rights Act, which is why one of the key provisions in my Bill is to change that.

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Mr Chope: Does my hon. Friend think that his Bill is compatible with section 3 of the Human Rights Act and with the convention?

Charlie Elphicke: I do, because I believe that we need to deal with the margin of appreciation and proportionality. The European Court in Strasbourg has taken a disproportionately narrow view of the idea of the margin of appreciation, and so this is a key change that we should make. We should not be shy in doing this if we are to get the right settlement for the UK.

Since its entry into force, section 3 of the Human Rights Act has had a far-reaching effect on how British judges apply legislation in the UK. Before that provision, the British judiciary’s interpretation of an Act of Parliament centred on the ordinary meaning of the Act’s words when viewed in their context, taken together with the intention of Parliament when enacting the words. However, in his opinion in the leading case on the application of section 3—Ghaidan v. Godin-Mendoza—Lord Nicholls stated that

“the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation.”

That is a crucial point in terms of how Acts of Parliament are interpreted. I think they should be interpreted in line with what Parliament intended, not with what a group of judges from overseas might seek to rule.

Another impact of section 3 is that the courts are empowered to strike down what the HRA classifies as “subordinate legislation”—what we call secondary legislation or statutory instruments—if it is not possible to read this legislation as being compatible with ECHR rights, and the primary legislation under which it is made does not prevent the subordinate legislation’s incompatibility from being removed. Under the HRA, subordinate legislation includes most legislation that is not in itself an Act of Parliament but is made under the authority of an Act, including much legislation approved by resolution of each House of Parliament. That position is a concern and we should change it.

Section 6 of the HRA obliges all public authorities in the UK to act in compliance with European convention rights in the HRA, except where an authority cannot act compatibly because of a provision of primary legislation or where the authority is giving effect to a provision of and made under primary legislation that cannot be interpreted in a way that is compatible with convention rights. In other words, this reaches into not only our legal system, but our public authorities, as an obligation that they need to follow. We can see that the HRA has been incredibly far-reaching.

On that note, I want to deal with the key changes that I am seeking to make in this Bill to address the mischief that I have described. We need to restore balance in this entire area, so the Bill would repeal the HRA and replace it with a new settlement, which would draw on the framework of the HRA but vary it in relation to the key concerns that have arisen. There are 10 pillars to the

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reform I am proposing. First, the UK Supreme Court should be the final court of law for human rights matters.

Mr Nuttall: This follows on from my earlier intervention. Clause 7 specifically states that a “public authority” is defined as including “a court or tribunal”. However, although clause 17, which deals with the application of the convention, includes “any public authority” in its provision, it does not explain that a “public authority” in that clause includes a court. I just wonder whether what my hon. Friend has just said is borne out by what is in the Bill.

Charlie Elphicke: My hon. Friend makes a powerful point, and I hope that he, too, will consider joining the Committee to scrutinise the Bill to ensure that we get the right balance. I hope that he will table amendments to take forward the debate, even perhaps on whether we should remain part of the treaty. He might join forces with my hon. Friend the Member for North East Somerset on that issue. Such issues are important and they need to be explored. This is a Second Reading debate, so it is a sighting shot as to what a British Bill of Rights would look like. I have no doubt that the Bill could be dramatically improved in Committee and that the new settlement could be made even more ideal.

As I said, my first principle is that the UK Supreme Court should be the final court in UK law for human rights matters. Secondly, serious foreign criminals and persons in the UK illegally should not be able to avoid deportation by using human rights claims, as has happened in the past. Thirdly, the right to family life should not be available as a tool to avoid justice and escape answering criminal charges. Fourthly, suspected foreign terrorists should not be able to subvert national security or our personal security, or avoid deportation, by using human rights claims.

Fifthly, freedom of thought, freedom of conscience and freedom of religion should be protected to a greater extent than they are today. We have seen too many attacks on people’s thoughts, feelings and beliefs. There has been too much aggressive secularism, which has sought to attack the Church and people who have deeply held religious beliefs. We have seen that in the case of the Plymouth Brethren and the Charity Commission, and in the constant attacks on the Church and on religion both in Parliament and outside it. We must ensure that there is a space for people to have religion and religious beliefs in this country, and that people should be able to set out and preach what they think. Their right to free speech should be better protected.

Rory Stewart: I wonder whether my hon. Friend might reflect on a broader application of his provision. Would he see it as applying to Islam as well as to Christianity in terms of people’s freedom of speech and freedom to express what they believe, and the inability of the state to interfere in personal beliefs?

Charlie Elphicke: Yes, I would. It is important that every British citizen should be able to hold a belief. I may be a Christian, but I think we need to respect Muslims following the Islamic faith, as well as people following the Jewish and Catholic faiths, and Protestant Christianity. All those faiths are important. This freedom

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should not be unlimited; I have been careful to say in the relevant provision that freedom of religion does not extend to inciting physical harm or undermining national security. We cannot have a situation where freedom of religion could be used to promote terror, as has happened too often. That important limitation is in place, but it is important that we have religious freedom.

Rebecca Harris: Does my hon. Friend agree that the British public saw no mischief being created in British culture prior to our entering into the convention and that it is only since our entry that they have seen a slew of wealthy barristers getting much wealthier by doing a lot of things that seem to subvert our traditional culture? There was no apparent reason to introduce this convention in the first place, and that is a great cause of concern and confusion for the public.

Charlie Elphicke: My hon. Friend is absolutely right in what she says. I have been roundly criticised on social media by people who, oddly, seem to be lawyers in this area. I wonder whether part of the reason for their criticism is that they feel that I might be threatening their livelihoods. They are milking the system and the legal aid budget for every penny and pound they can get out of it in order to put forward their too-often spurious human rights claims. As a former lawyer, I have little sympathy for lawyers who seek to milk the taxpayer to fatten their wallets. That is important, and I have made it clear in my responses to people that they have a conflict of interest in terms of human rights issues and their own livelihood.

The sixth pillar is that the right to vote should not apply to convicted prisoners, a matter on which this House has expressed concern. The seventh is that legislation passed by Parliament should be changed only if Parliament so decides. Courts believing that legislation breaches human rights should declare their opinion, yet Parliament should make the final decision on whether laws ought to be changed.

The eighth pillar is that public authorities should not be penalised for applying legislation that is approved by Parliament, because that has happened too often, creating uncertainty and making their lives extremely difficult. They think they are doing what they have been told to do by Parliament and suddenly end up with a human rights claim and a member of the Bar pursuing a compensation claim, not only on his or her client’s behalf but on his or her own behalf, to get money out of the taxpayer. The ninth is that UK law should not be automatically interpreted in line with the rulings of the European Court of Human Rights. In deciding human rights cases, UK courts should take into account centuries of common law rulings from the UK and elsewhere in the common law world.

Finally, the UK social contract is not just about rights. It is about responsibilities and the contract should include responsibilities as well as rights.

Bob Stewart: I am not a lawyer, but it seems to me that there is a worry here. If my hon. Friend’s principles are put into law, will anyone in this country who disagrees with them and wants to avoid extradition, for example, have any right to go to the European Court and say, “This is wrong, may I appeal to you?” in order to delay the process? Will that process be negated by the Bill?

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Charlie Elphicke: The answer is that if we are a member of the treaty, of course they could go to the European Court of Human Rights. That is why the question of whether we should remain part of the treaty is important. Nevertheless, the decision would not take place in the UK legal system so they would not be able to stand on those European rights before UK courts or seek relief before the UK courts unless they had British rights under the British settlement. That is the key part of what we might call the dualist approach and obviously the Strasbourg machinery clanks more slowly and does not take every single case going, as the British courts are required to do. We would see a massive reduction in the level of cases but also in the level of public concern.

On the detailed provisions on UK rights and UK responsibilities, the Bill does not simply copy the text of the convention rights; it is a UK Bill of Rights and the rights it contains are referred to as British rights. The convention text is varied where needed.

Let me take the House through a few of the major headline changes. The main qualification is that the right to life is brought more into line with domestic law on the ability to use force in self-defence and to prevent crime. The prohibition of forced labour is clarified so that it explicitly does not prevent people from being required to undertake work or training as a condition of receiving welfare benefits. The right to respect a private and family life will no longer be available as a tool to avoid trial and punishment for criminal acts. The scope for limiting the right to manifest one’s religion or belief is reduced, and the right is limited only to stop the causing or incitement of physical harm to others so far as is necessary to protect public order. It is made clear that the right of free elections does not confer a vote on convicted prisoners or those who are not British citizens. I hasten to add that we have constitutional settlements that allow European, Irish and Commonwealth citizens to vote in certain cases, which are matters for Parliament to extend as it sees fit. The basic right should be that British citizens who are not prisoners should be able to vote.

The rights should not be used by those who are not British citizens to delay or avoid their deportation or extradition from the UK. They could not be used to prevent public authorities from taking action in relation to a person to uphold national security or public safety when the authorities reasonably believed that a clear and present danger to national security or public safety was presented by that person, although such action would not include the killing of that person, because we do not believe that Governments should go around killing people, unless it was already allowed under the right-to-life provision. Such action would also not include the use of torture or inhuman and degrading treatment or punishment. By getting the settlement right, we can put national security at the heart of our constitution and our constitutional rights, ensuring that the Government can protect our national and personal security. To my mind, that is the first call on Government.

In addition, the Bill includes rights not set out in the text of the European convention. They are: in England and Wales, the right to use force against intruders in a home, so long as that force is not grossly disproportionate; the right of a parent or guardian to challenge in court without undue delay the lawfulness of any removal of a

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child from their custody when the child is placed in custody by a public authority; and the right for a British citizen to challenge extradition to another country on the basis that they should have the right to trial in the UK if the alleged crime is committed while the person in question is in the UK. It does not displace basic rights in the UK legal order, so all our other constitutional documents from Magna Carta onwards remain, but provides an additional baseline of rights that apply in our nation.

Alongside the rights, the Bill includes a list of basic individual responsibilities. A person’s basic responsibilities include obedience to the law; rendering civil or military service when this country requires his support or defence; supporting, nurturing and protecting minor children to the best of his ability; respecting and upholding basic public order without placing himself in significant danger; seeking to support himself without recourse to a public authority to the best of his ability, including but not limited to seeking work or gainful employment where he can; and rendering help and assistance to other persons where reasonable and to the best of his ability, including but not limited to help for elderly and disabled persons. Those responsibilities are not direct obligations on individuals, nor would they automatically confer new powers on public authorities. Instead, they will be taken into account when a court considers a UK right.

Mr Nuttall: I appreciate that my hon. Friend is being very generous with his time in giving way. Article 23 in schedule 1 sets out the responsibilities that he has just listed. How does he think it would be enforced if an individual was thought not to have followed those basic responsibilities? We already have courts that people appear before if they break the law. What is the purpose of this provision and what more will be achieved by its inclusion in the Bill?

Charlie Elphicke: That intervention takes us to the key issue of determining whether a person should be able to stand on their UK rights. British courts must take into account all the facts and circumstances of the case, including the conduct of the person seeking to assert the UK right and his adherence to the responsibilities set out in article 23, in considering whether it is fair, equitable and in the interests of justice for such a UK right to be applied to the question at hand. It is effectively the heart of the subjective test to which my hon. Friend the Member for Christchurch referred earlier as coming to equity with clean hands.

An important point that goes to the heart of the Bill is that rights must be matched by responsibilities. If someone has not discharged their responsibilities, that is taken into account when they seek to stand on a right. In other words, if they have broken their half of the social contract, that will go against them when they seek to assert the part of the social contract or rights on which they want to rely. It is right that judges and the courts should be able to consider the case in the round to determine whether a person can avail themselves of those rights. As I have said, someone should not be able to use the right to family life to stay on the run. That is a basic part of the subjective test.

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The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights. Those broader considerations should include whether a person seeking a basic right has kept his part of the social bargain and the social contract. That is incredibly important. If we talk to a person in the street about the social contract, they will say, “Well, there are two halves, aren’t there? There are rights, but there are also obligations”—or responsibilities, as I have called them. That recognises the duality of the social contract that lies at the heart of our society.

When it comes to interpreting UK rights, the Bill removes the provision of the Human Rights Act that requires British courts, when interpreting and applying the rights in the Bill, to take into account rulings of the European Court of Human Rights. Instead, the Bill makes it clear that UK courts may take account of judgments from a wide range of sources, including but not limited to the Strasbourg Court, with courts of common law jurisdictions getting top billing, and rightly so, because we are a common law country, and there is a common law world out there that we helped to establish in the days of our empire, which now proceeds with common law jurisprudence. Australia, New Zealand, the United States and Canada are all countries that have common law foundations and have given much thought to many of the issues that often come before our courts. Why would we not look to them first, before we looked at the civil law jurisdictions of Europe? I think that is the right balance for us to have.

The Bill removes the provision of section 3 of the HRA, which requires UK courts to interpret and apply legislation in compliance with human rights so far as is possible. Instead, the courts are directed to give legislation its ordinary and natural meaning. Where the meaning is ambiguous, the courts would typically presume that a possible meaning that complies with UK rights is intended. In that way, we would give primacy back to Parliament and restore the confidence of the British people that Parliament decides. We would have a uniquely British code of rights that is right for this country.

Jacob Rees-Mogg: Surely we should give confidence to the British people that the British people decide—they, through their Parliament, rather than Parliament in isolation.

Charlie Elphicke: I entirely agree. I am happy to be corrected by my hon. Friend about the emphasis. He is right. We are not here to represent the Government to our constituents. We are here to represent our constituents to the Government and to Parliament, and to ensure that their will is carried through. That is a central part of what my Bill is all about.

We need to restore the sovereignty of Parliament when it comes to human rights. We need to restore confidence in human rights with a uniquely British settlement that the British people will respect and trust, with the right balance of rights and responsibilities, and also with the right balance to ensure that Acts of Parliament are not just turned over by the courts, but that courts apply Acts of Parliament passed by the lawmakers, which is the way it should be. The horse

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should always go before the cart, not the other way around. We need the right settlement for the UK—a settlement that people can trust and have confidence in, so that they will feel once again that it is a British settlement for the British people, and that strikes the right balance and has the right balance in fairness, which, to my mind, is the cornerstone of the British psyche and the British way of life.

10.42 am

Rory Stewart (Penrith and The Border) (Con): I begin by praising my hon. Friend the Member for Dover (Charlie Elphicke) for introducing the Bill. It raises an extremely important issue which clearly irritates many people in Britain and is very dangerous. We have got to a situation where human rights are talked about as though they were some trivial, unnecessary issue. The phrase is connected in people’s minds with phrases such as “health and safety”. That is a very sad effect.

The question for us today is how we deal with the problem. My hon. Friend has eloquently explained that we have a problem and has eloquently given countless examples of things which intuitively make many members of the British public extremely anxious and extremely unhappy with the judicial and the political institutions. We should respect that. It might be tempting to say, as some lawyers do, that the British public are not focused enough on the moral details and the legal details of the case, and to trivialise their objections. This would be unfair, because there is obviously something important, deep and intuitive going on that makes people anxious about this kind of activity under the banner of human rights.

What is our solution? How do we look at these issues? We have to begin with a sense of what human rights are. Let me politely challenge slightly the definition of human rights put forward by my hon. Friend, without calling into question his overall point, which is that we are now in a mess. It seems to me that we can begin with a definition of human rights that would state that to say that somebody has a human right is to say that anyone, anywhere, treated in this fashion is wronged, and that their possession of that right is not relative to the costs or benefits of upholding it in any particular case. That sounds very technical and it sounds pathetic, but it is an important thing to establish at the beginning of this debate.

Human rights are based on notions of dignity and of inviolability, and they are in their nature universal. To say that somebody has a human right is a statement about their moral status. It is not a statement about their nationality. It is not a statement about their citizenship. It is to say that anyone, anywhere, treated in this fashion is wronged, and that although there may be a threshold above which that right could be suspended, below that threshold their possession of the right is not relative to the cost or benefits of upholding it in any particular case.

Jacob Rees-Mogg: But surely once there is a threshold, the right is not absolute.

Rory Stewart: My hon. Friend makes a very important point. Let me give an example. The concept of human rights is based on a notion of human dignity and on a

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notion that humans should be treated as ends in themselves, rather than as a means to an end. In other words, it is a sort of Kantian world view. It has an absolute view of the world on how people should be treated, but at a very extreme level there may be a threshold at which we in the Chamber would intuitively feel that that right could be suspended.

For example, if a child were in possession of information about a ticking bomb that was going to destroy a million people in a city, we might feel that in that situation it was justifiable to twist the child’s thumb to find out where that bomb was. In other words, there might be a threshold, in situations so extreme as to be almost hypothetical, where our human intuition would be that the right would be suspended, but, below that threshold, the possession of the right is not a function of the costs or benefits of upholding it in any particular case.

For example, it would not be justifiable in any situation to kill one individual in order to harvest their organs to save five other individuals.

Jacob Rees-Mogg: May I come back to my hon. Friend on his previous example? He said that a particular act would be justifiable to save a million people. What about 500,000? What about 50,000? What about 10,000? What about one?

Rory Stewart: That is a fantastic argument. The argument that I was trying to make was that in the case of five, 10, 15 or 20 people, our moral intuition is that a particular act is unacceptable. At another level, at the level of a million, our moral intuition is that it might be acceptable. This is a very difficult point. The point that I am trying to make is that we are in a sense deontologists. We are absolute up to a certain threshold, but there is a certain threshold at which a utilitarian or consequentialist calculus comes in.

As I said earlier, if it were a case of one person being killed to save five—in other words, that somebody could be killed, their organs would be harvested, and those organs would be used to keep five people alive—that would not be justifiable. Their possession of their inviolability—their immunity, their right to life—is not proportional to the costs or benefits of upholding it in any particular case. There may be—we almost never get anywhere near this kind of threshold—as a hypothetical, theoretical point, a threshold at which a right might be overruled by a consequentialist consideration, the one against a million. But below that threshold, the possession of the right is not relative to the costs or benefits of upholding it in any particular case.

Jacob Rees-Mogg: I am grateful to my hon. Friend for giving way once again. I think that he rather sold the pass once he had the child whose thumb could be twisted to save 1 million people, because if their thumb could be twisted, could their arm be broken? We are now getting into an argument about what is relative and find that there is no absolute. The same applies to the example of harvesting a person’s organs: we might not allow it if it would save five people, but what if it would save 5 million people? Does it then become justifiable?

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Rory Stewart: My hon. Friend asks a very important question of moral philosophy. It is a question of moral intuitions. We are trying to create in our legal and moral systems something that reflects our common-sense intuitions as humans. We try to interrogate them, be logical and go back to first principles, but our common-sense intuition, I feel, is that humans have a moral status, that they are inviolable, that they have an intrinsic dignity, and that they should be treated as ends in themselves, not as means to an end.

However—this relates to the case of one against 1 million—we also have a strong moral intuition that there might be certain extreme circumstances in which it is justifiable to overrule an individual’s rights. There are different ways we can deal with that. In the German legal system, for example, it would be argued that twisting the child’s thumb, although morally justifiable, is not legally justifiable. The individual responsible would be prosecuted and convicted, but they would be congratulated on having made the correct moral decision, even if it was the wrong legal one. In our normal lives, however, such scenarios are purely hypothetical; we do not come across ticking bombs or children who could save 1 million people.

In our everyday lives, human rights are, in themselves, inviolable, which is why, as we consider the case brought by my hon. Friend the Member for Dover, we must ask ourselves this: what is wrong with the current system? It seems to me that there are four possible answers to that question, and he has given four possible answers. One of them, which my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has raised, relates to the question of sovereignty. The first possible answer on what is wrong with the current settlement on rights is that there is a problem of parliamentary sovereignty. The notion, which we could explore in greater depth, is that Parliament is sovereign and that the European Court of Human Rights, by overruling the decisions of the British Parliament, is not acting in accordance with the British constitution.

The second argument that could be made is that a question such as whether prisoners should have the right to vote—a recent and difficult case—is purely relative; that it is culturally relative. It could simply be argued that the reason the European Court should not get involved in prisoner voting is not because of sovereignty, but because the question is culturally relative—I say “tomato”, you say “tomayto”. These things are purely subjective and based on a particular cultural or historical context and the Court should not be fussing about them. The British think one thing, the Spanish think another. There is no way of resolving it, because it is purely relative.

The third argument is that we are dealing with subjects that are purely trivial, the argument being that voting rights for prisoners simply do not matter. There might theoretically be a moral solution to the question of whether prisoners should be able to vote, but it is a trivial issue and not something the European Court should be dealing with. Instead, it should be looking at more important issues.

The fourth argument, and the one I am tempted to choose, is that this is not fundamentally a problem of sovereignty, relativity or triviality; it is the problem of the European Court using the wrong principles to come to the wrong judgments.

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Permit me to expand on those four arguments in more detail. The first argument is about parliamentary sovereignty, which my hon. Friend the Member for North East Somerset dealt with so eloquently. It is of course true that traditionally within the British system parliamentary sovereignty was supreme. Although Dicey talks about parliamentary sovereignty and the rule of law, it is quite clear that what he means by the rule of law is not what Lord Bingham means by the rule of law. In other words, in the conventional British interpretation, the rule of law is not something equivalent to the US constitution. It is not an independent body of law against which parliamentary statutes can be judged. It was not the case in Britain that an Act of Parliament could be struck down by a court on the grounds that it did not accord with the rule of law. That notion, which is of the 15th and 16th centuries, that there was an independent common law that trumped the actions of Parliament, was put aside. Essentially, for the past 300 years we have believed that Parliament is sovereign.

Under that interpretation, the European Court cannot possibly be engaged in trying to subjugate Parliament. At the very best, all it is engaged in is an international treaty obligation through which the British Parliament has voluntarily determined that it wishes to accept the rulings of the Court but can choose to ignore them if it so wishes, and in doing so it would not be breaking British law but would simply be in breach of its international treaty obligations.

So deep is that belief in the British mind that we are now the only advanced democracy in the world that makes no explicit distinction between constitutional and normal law. In other words, we have a situation in which, as my hon. Friend the Member for Dover has so eloquently explained, our constitution shifts continually over time and, at its worst, “bends like a reed” in the wind. It is theoretically possible, in a way that it is not in any other advanced democracy in the world, for a simple majority in Parliament—a majority of the people gathered here today, for example—to change the fundamental constitution of the British nation.

Every other advanced democracy draws a distinction between constitutional and normal law so that changing the fundamental constitution requires a special procedure. In northern European countries there is generally a demand for a two-thirds majority in Parliament, and in southern European countries there is more of a focus on a referendum. In some countries, such as Italy, there is interest in an intermediate vote, so the Parliament must be dissolved and the proposed constitutional change put to the electorate through a general election. That is all designed to make it very difficult for a Parliament to change the constitution. The idea—not a British one—is that a Government or Parliament are temporary, but the people are public, and the constitution exists to protect the people from the Parliament.

It would be possible to base the entire opposition to the European convention on human rights on an argument about parliamentary sovereignty, as my hon. Friend the Member for North East Somerset has, using British constitutional history. But that argument rests, fundamentally, on political institutions, not morality. It is difficult to see an ethical or moral case for the notion of untrammelled parliamentary sovereignty as an alternative to the protection of the inviolability of the individual’s rights. Indeed, the modern notion of democracy, which

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is shared in every other advanced democracy in the world, combines representation of the majority with protection of the individual’s rights.

Jacob Rees-Mogg: I do not think that my hon. Friend has fully established the inviolability of the individual’s rights. He has stated it, but he has not established it.

Rory Stewart: My hon. Friend, with enormous eloquence, raises a fundamental philosophical debate. The answer to his point is that one cannot establish the existence of inviolable rights unless one accepts two further principles. The first is the equality of humans; the notion that I, you, Mr Deputy Speaker, my hon. Friend, and indeed someone we have never encountered who lives at the other end of the Congo, are in all important respects equal in dignity and in rights. That is an insight of logic and of human consciousness and a basic commitment to the notion that, although we might feel that we are special and the only people who exist, as we become adults we acknowledge that other people, too, are independent moral actors who possess exactly the same dignity. The inviolability—the rights of the human being—which my hon. Friend has raised, is derived from that notion of equality and dignity.

Jacob Rees-Mogg: For the record, I think that the Deputy Speaker is so many leagues above me that I am not sure my hon. Friend is right. If one takes my hon. Friend’s point about the equality of humanity—the equality before God that I believe as a matter of faith—that does not mean that rights are always applied equally. Even in this Bill, the right to life—that most essential right—is qualified in the case of self-defence, so rights immediately become relative.

Mr Deputy Speaker (Mr Lindsay Hoyle): Just for the record, I think we are all equal unless there is a long intervention, when I might show a little more power.

Rory Stewart: Rights are indeed qualified, but that does not mean that they are relative. This is an important distinction. The clause that my hon. Friend mentioned does indeed establish the right but says that under certain specific circumstances it may be qualified or overruled. That is not a statement that the right is relative. It is not a statement that the right to life contained in the European convention on human rights is purely relative. It is not a statement that, below the threshold of the qualification, in other words, the specific circumstances in which a right may be suspended—this is what makes rights quite different from any other form of moral law—one’s possession of a right is not relative to the costs or benefits of upholding it in a particular case.

One’s right to life may be suspended at a certain threshold. The thresholds described in the European convention include those relating to civil disorder and military law. However, below those thresholds one’s right to life cannot simply be looked at in terms of the costs or benefits of upholding it in any particular case.

Jacob Rees-Mogg: But this right is so clearly absolute. The old Riot Act provided for the militia to start shooting because of the decision made at that time that

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the maintenance of order required immediate use of fatal force. That is no longer thought to be appropriate. It is therefore about a relative judgment relating to the balances between the individual and the collective.

Rory Stewart: We need to be very clear about what we mean by “relative”. The notion of “relative” that my hon. Friend is rehearsing simply says that rights and moral values evolve in a historical context. As he says, it is simply a matter of historical fact that different cultures at different times have taken different moral positions. Aristotle, alongside his other great observations, believed that women and slaves lacked souls. Today we realise not merely that he thinks one thing and we think another—that it is relative—but that he is wrong. He is wrong because moral language is implicitly not relative; it is, in its very structure, absolute. Moral language does not say, “I don’t happen to like you killing someone, but if you want to kill someone that is up to you.” In other words, it does not say that killing someone or not doing so is like you liking chocolate ice cream and me liking strawberry ice cream; it says that it is wrong and ought not to be done. Moral language is about questions of “ought”, not questions of “is”.

Jacob Rees-Mogg: But in saying that something ought not to be done one immediately goes on to add “except in certain circumstances.”

Rory Stewart: I will try again. The central point is that the notion of moral obligation—the notion of what ought or ought not to be done—relies on two conflicting principles that connect at the moment of the threshold. Those two conflicting principles are, on the one hand, the notion of the inviolability and dignity of the human being, and, on the other, a consequentialist or utilitarian argument of the greatest happiness of the greatest number. Philosophically, the origins of these two types of argument are entirely distinct. One is a deontological argument that simply states the dignity of the human being and their inviolability; the other is an instrumental argument based on consequences or results. Our legal system, and indeed our moral intuitions, combine these two, which meet at a point of the threshold. This is what we mean by “ought”. We mean exactly what my hon. Friend the Member for North East Somerset suggests: that the individual ought not to be treated like this except in very extreme circumstances above a certain threshold below which the individual’s possession of the rights is not a function of the costs or benefits of upholding it in any particular case.

This is important because it is a distinction between a relative position that says “I can take your life whenever I feel like it on the basis of no moral argument and no logical position” and a separate position that says “I may not take your life. There are certain extreme situations in which it could become legally permissible to do so, but I may not.” The distinction between human rights and a relative position is a distinction on permissibility—a distinction on what may be done.

Jacob Rees-Mogg rose

Rory Stewart: Before my hon. Friend intervenes again, let me be absolutely clear that the distinction is this: when I say that somebody has a right not to be tortured,

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I am saying that they may not be tortured. I am not saying that they will not be tortured; there might be a horrible situation in which their Government do torture them. The statement is a moral statement, not a prediction about the future. It is a statement about what we morally give permission to do: “You may not be tortured; you may not be killed.” It is then possible to state certain threshold circumstances in which our moral intuitions in terms of human rights shift to moral intuitions in terms of a consequentialist world view in which we say, “One person might be killed for the benefit of a million.” These are nice questions of moral philosophy that do not usually come up in our everyday life, which is based on the dignity and inviolability of the human being regardless of circumstance.

Charlie Elphicke: My hon. Friend is making a very powerful argument in which he highlights a key difference between civil law and common law. In common law, we would take a utilitarian approach. If a plane were heading to London with 100 people on board and a nuclear bomb, we would say “Save the city”, but in Germany, under the civil law code, people would say, “You can’t touch the plane because of the inviolability of the right to life.” That is at the heart of some of the problems that I have been wrestling with in the Bill.

Rory Stewart: The example of the plane is a very good one. It is an exact example of where our moral intuitions collide. My instinct would be that neither ourselves nor a German legislature would be comfortable with the decision either way. These are terrible, terrible decisions involving two very deep moral intuitions. The first of those is that individuals should be treated as ends in themselves and not means to an end. As my hon. Friend so rightly points out, the German supreme court holds that a plane could not be brought down in those circumstances because it feels deeply that that would be to treat the people on it as a means to an end rather than an end in themselves. In effect, it would be doing to them something similar to killing one person in order to harvest their organs to benefit five others. The calculus is that five having benefited is not enough to outweigh the harm done to one. That is an important moral intuition.

However, my hon. Friend is correct to suggest that in the end most of us would disagree with that notion. I personally would disagree, as would, presumably, my hon. Friend the Member for Dover. In a situation of that sort, where 1 million people are going to be killed by an atom bomb, another deeper, stronger moral intuition arises which we often describe in terms of common sense but is in fact a utilitarian calculus—that there is a certain threshold of absurdity beyond which the protection of the rights of the individuals in that plane no longer makes sense. My hon. Friend the Member for North East Somerset has been very good at pointing out the contradiction that these are two separate philosophical principles, and at raising the question of where the threshold comes in. The terrible judgment that a politician would need to make in that situation is not one that can be resolved except through a deep understanding of the particular facts of an individual case.

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Jacob Rees-Mogg: I am grateful to my hon. Friend for giving way; I will try to make this my last intervention. Once we accept the threshold, it becomes fundamentally arbitrary and merely a matter of arguing where it should be set. Therefore, the question is of the legitimacy of who sets that threshold—whether it should be the Queen in Parliament or a foreign court.

Rory Stewart: There is a disagreement here and it is not one that we can paper over. The question is: where should we put the weight of sovereignty? How important is sovereignty? Does sovereignty confer some form of immunity? Is there some magic in this Chamber that allows the legislators in it to do whatever they want? Is it the case, as Lord Hoffmann suggested in his judgment, that if this Chamber wished, it could simply flout human rights? Is that a statement about political fact in institutions, or is it about morality? Do we think that it is simply a fact that this Parliament could do whatever it wants, or do we think that this Parliament ought to be able to do whatever it wants? On this is based our whole conception of democracy.

Those who feel that this Chamber not only could, but ought to be able to do whatever it wants are basing their argument on one principle only, which is the principle of majority representation. Where I suspect there may be a disagreement between myself and my hon. Friend the Member for North East Somerset is on the notion that democracy is based not on one, but on two principles—majority representation and the protection of minority rights—and that, in the absence of the second criterion, we cease to be, in the full sense, a democracy.

This is a very difficult argument to make, because in this country we have every reason to be proud of the performance of this Parliament. Although theoretically, constitutional anxiety leads us to believe that this Parliament could do truly barbarous things, as a matter of fact it has not. In fact, consistently this Parliament has shown itself very respectful of the unwritten laws of the British constitution. When Parliament has attempted to fundamentally change the constitution of the United Kingdom through a simple majority in the House of Commons—as, indeed, it did with the proposal to abolish the House of Lords—it refused to take that opportunity. It backed away from it. Parliament’s reluctance, innate conservatism and caution with regard to issues relating to the constitution have meant that, from 1911 to the current day, people pushing for a written constitution or more formal constraints on the power of Parliament have not won.

That is good and it shows two positive things. First, it shows the important principle of common sense. Everyone in this Chamber agrees that we do not want to live in a world of technocrats. We like the fact that the British public have a say and that their common sense permeates this Parliament. At our best—we are not always at our best—we are a lens that connects the Executive to the voting public. We act as a mediator between public opinion—the sentiment, imagination and culture of the British people—and the laws passed in Parliament. Nobody in this Chamber wishes to pass to a world where we vest our power in technocrats or experts, such as a Mario Monti-type figure with great insight, who think they know what is best for the people. Our unruly

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common sense means that the public have tended to respect their landscape, to challenge the Government on, for example, wind turbines, and to refuse to co-operate—in a similar way to that in which the French public occasionally refuse to co-operate on farming—with the theoretical ideas of experts and Government.

The second reason to be proud of the sovereignty of Parliament is that it reflects a culture, but the question for my hon. Friend, who is one of the great supporters of untrammelled parliamentary sovereignty is this: do we have the confidence that the unwritten rules, the culture of this House and the deep understanding of the history of the British constitution—which meant in 1911 that Members of Parliament were very cautious about changing it—still hold, or did our vote on the House of Lords Reform Bill take us close to the brink? Is it possible that we are suffering from collective amnesia and that one can no longer say that the British Parliament is so deeply entrenched in its constitutional history that it can be guaranteed never to change fundamentally the British constitution?

If we are moving into a world that takes us into that danger zone, I believe that we need to follow the example of every other advanced democracy in the world and separate constitutional and normal law, and say that, in order to make a fundamental change to the constitution, which would affect the rights of citizens—this is why this is relevant to the European Court of Human Rights—we must ensure that special procedures are followed. The special procedure that we have tended to develop through precedent over the past 40 years is, of course, a referendum. We may not want a referendum to be the fundamental means by which we change the constitution. We may want to adopt a different procedure, such as a two-thirds majority or a free vote in the House—which, of course, is what the previous Government used to deal with the issue of the House of Lords—but we are moving to a world in which we need a proper procedure.

The reason why that is relevant to this debate is that the question of parliamentary sovereignty and its relationship with the European Court is the nub of the issue. The argument against the European Court cannot simply be that Parliament is sovereign, absolute and always right and that it should never be challenged. We have developed a doctrine of international intervention with regard to the notion that sovereignty does not confer immunity—that the rights of a country’s individual citizens can trump the sovereignty of a Parliament.

The second argument—moving on from sovereignty, with apologies for having paid so much attention to it—is about the question of moral relativism, although my exchange with my hon. Friend may have covered this issue adequately. The idea of moral relativism states that the question of prisoners voting is purely relative. I like chocolate ice cream, Mr Deputy Speaker, but perhaps you like strawberry ice cream—that is a question of taste, not of moral decision. The Spanish believe that prisoners should have votes and the British do not, but to argue that such things are purely relative and that there is no way of resolving them is very dangerous, because all these questions about rights are fundamentally issues of morality. Moral language is a statement about what is right and what is wrong—what we ought to do and what we ought not to do. It is not a statement of personal taste akin to saying, “I like red, you like blue,

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and that’s the end of the discussion.” What one says is, “You are wrong.” We must believe it is possible to resolve the question of who is right and who is wrong on the issue of prisoners voting and to do so through moral investigation and debate.

Charlie Elphicke: I thank my hon. Friend for giving way; he is being very generous in taking interventions. I would say that the issue is slightly different. The Spanish think that prisoners should have the vote and the British do not, but the error is the one-size-fits-all approach taken by the European Court. There should be an acceptance that different countries will arrive at different solutions. A universal morality should not be thrust on all.

Rory Stewart: The powerful argument made by my hon. Friend is, indeed, the same as that made by Lord Hoffmann, who says that universal rights, such as those under the European Court of Human Rights, are simply aspirational and that any universal code is aspriational, but it is always national in its application. The argument made by Lord Hoffmann and my hon. Friend is that the European Court of Human Rights and the convention are purely aspirational: they are a good way of encouraging people to behave better, they are a good way of doing political lobbying and they are a good way of applying pressure, but in their application, human rights can only be national. The notion is that human rights are relative to a particular historical or political context. In the view of Lord Hoffmann and my hon. Friend, but not in my view, the question of whether prisoners should vote should not be determined by moral debate because it is specific to a particular historical or national context. For them, the real answer to whether prisoners should vote depends on the difference between Spanish culture and British culture.

That is, of course, a position that I reject. I cannot accept it because rights are absolute, universal and inviolable. It cannot be the case that one’s possession of rights is relative to the circumstances of a particular culture. It cannot be the case that the mere fact that somebody lives in Saudi Arabia means that they have fewer rights as a woman. It cannot be the case that the mere fact that somebody lives in Taliban Afghanistan means that they do not have freedom of the press. Those rights, if they are rights at all, rest on one fact and one fact only: the fact of one’s humanity, not the fact of one’s nationality.

Charlie Elphicke: Lord Hoffmann said that human rights are universal in their abstraction, but national in their application. I think that what he was saying was that one-size-fits-all does not work and we need room for what used to be called subsidiarity, but which in this debate has been called proportionality or the margin of appreciation. The margin of appreciation is central to getting the right settlement that all countries can live with.

Rory Stewart: My hon. Friend brings us neatly to the third question on the Bill: the question of subsidiarity and triviality.

To move on from the big questions of sovereignty and meta-ethics, the central argument that my hon. Friend has made, which is an important one, is

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fundamentally about triviality. Lord Hoffmann may be suggesting that although at a theoretical level it may be possible to resolve whether prisoners should vote, as a practical point, the issue does not really matter. It is subsidiary—that is, it should be left to individual countries—because it is just too disruptive to the international system to try to impose, as my hon. Friend puts it, a one-size-fits-all approach. The argument is that trying to resolve the issue of whether prisoners should have the vote is disruptive to the international system.

That is a strong intuitive argument and one that we might have a lot of sympathy with in this House as politicians. It is obviously not a moral argument, because Lord Hoffmann’s argument does not hold water as a moral argument. It cannot be the case, as a question of ethics, that nationality is the prime determiner of one’s rights. However, that may be true as an issue of practicality. We might want to allow some flexibility in the process for the sanity of the international system. Although that is really tempting, the reason why we should not go down that path is twofold.

For a legal system, the question of triviality cannot be relevant. It is not possible for a judge to determine a case simply on the basis of whether they think that the question of prisoner voting is important in the grand scheme of things. The judge is there to make a decision on the basis of the law. That is why we often get frustrated and often find the system very peculiar.

The classic example, which is something that I hate about the European Court of Human Rights, is the case that was brought by the man who did not want to give his name when he was caught speeding. That case went all the way up through the courts system. The man argued that he should not have been obliged to give his name when spotted by a speeding camera because he had a right of privacy and a right to silence. He objected to the fact that he was going to be fined for giving his name.

Throughout the process, the courts did not say, “This is a trivial issue. It is a minor speeding fine, so we’re not interested.” The case went all the way up to Lord Bingham who, at great length and with enormous politeness, explained to the gentleman that his right to silence did not extend to not giving his name in relation to a speeding fine. At that point, the gentleman applied to the European Court which, perhaps to the delight of speeding motorists, seemed for a moment in a majority judgment to say that the man should not have to give his name because of the right of privacy.

That case shows that the triviality argument does not operate and, much more importantly, that judges are not politicians. It is not for a judge to determine whether it would be politically disruptive or inconvenient for a particular judgment to be passed. They may intuitively, in the back of their mind, be influenced by what they have read in the newspaper and they may be anxious that if they pass a judgment that is objectionable to the public, it will undermine the legitimacy or reputation of the judiciary, but those cannot be formal considerations in their decision. It cannot be that the European Court, which by its very nature has sanctions, can consider whether making a certain decision is disruptive to the international system or undermines the legitimacy or

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reputation of the Court itself. Those cannot be the terms on which moral or legal decisions are made, although we may often feel that they are the terms on which political decisions should be made.

A good example of that is the question of gay marriage, which has been a controversial issue in this Chamber. It makes perfect sense for a political Chamber to say, “This is a philosophical question and we feel, for political reasons, that this is not the appropriate moment to raise it because it would cause too much disruption and unhappiness.” However, at the point at which the issue is raised and put to the vote, it no longer makes sense to talk purely in terms of public opinion and disruption, particularly in a case that relates to morals or ethics, and it becomes necessary to look at the merits of the case and examine it philosophically.

The argument for why the European Court should not get involved in prisoner voting therefore cannot be that the issue is trivial or disruptive. The reason why there must be subsidiarity and why there cannot be a one-size-fits-all approach cannot, from a moral or legal point of view, be that it causes inconvenience.

Before I move on to the fourth and final part of the argument, I will go over the three arguments about the European Court that we have considered and that do not hold water. The first is the argument that the European Court should not exist because Parliament is absolutely sovereign. As a moral principle, as opposed to a statement of constitutional fact, that is objectionable. The current evolution of British culture and the behaviour of the British Parliament over the past 20 years suggest that it would be dangerous to put the entire reliance for our constitutional system and the protection of rights on the individual decisions of a temporary majority in a sovereign Parliament.

The second argument that we have rejected is that questions such as prisoners’ voting rights are purely relative, that there are no moral absolutes and that such questions cannot be resolved in a philosophical sense. The contention is that moral arguments are simply a question of, “You think this and I think that,” and there is no way of resolving them, as if they are just a question of taste, as in the trivial example that I gave of one person liking chocolate ice cream and another liking strawberry ice cream. No; we believe very strongly that moral arguments are different from arguments of taste. There is an answer to these questions.

There is therefore an answer to the question of whether prisoners should have voting rights. It is based on whether we believe that the dignity and inviolability of the prisoner’s status as a moral actor—as a human—requires them, always and in all circumstances, to have a vote or not. Personally, I do not find that argument convincing. A prisoner is not entitled, as a fundamental element of their human dignity and inviolability, to a vote in all circumstances. That is not, however, simply a question of taste. It is a question of moral argument.

The third argument we are rejecting is that it is simply inconvenient to talk about such matters and that it disrupts the international system. That is a tempting argument, because we set up the Court; David Maxwell Fyfe essentially drafted this document and steered it through. Britain is in the rather unfortunate situation of embarrassment. We were proud of this Court, and if we wished to tease ourselves a little bit, we could point out

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the fact that for 40 years we rather enjoyed the fact that the Court told other countries how to behave. We felt—probably intuitively—that the point about the Court was that it would hopefully drag others up to what we rather pompously felt was “our level”.

We became anxious about the Court only once it turned round and started telling us, as opposed to foreigners, what to do—a difficult and embarrassing situation. We liked the Court when it did a good job of insisting that countries in southern Europe should have habeas corpus and no detention without trial. We became anxious only when the countries that we had cheerfully made accord with British legal norms for 40 years turned round and tried to demand that we accord with their legal norms on prisoners voting. There is a good reason to feel politically and institutionally, in terms of public opinion, that we do not like that idea and would allow subsidiarity simply to avoid political embarrassment. However, as I have argued, that is not a moral or legal position; it is purely a question of expediency and convenience, and no moral principle can be based on expediency.

The fourth and concluding argument concerns what we should do about the European Court. We should not give up the notion that there are inviolable and universal human rights, or that the sovereignty of Parliament must respect the rights of the individual. We should not give up the notion of moral absolutes or accept the notion that political expediency can override moral or legal principles. We must return to the fundamentals and challenge the moral and legal argumentation of the European Court, and we would do that in exactly the way that my hon. Friend the Member for Dover has so eloquently explained.

From my point of view, my hon. Friend is not producing a measure that would lead us to leave the European convention, but he points out that the Court’s current operations are resulting in absurd, surreal consequences. The way to address that problem is to look again at the European convention on human rights, and consider how it was drafted in 1950, what ingredients lie within it and how much latitude that gives the Court. A Court that one year ago had 100,000 cases waiting to be heard—an absurd number—needs to say no to far more cases. The Court must understand that the 1950 drafting of the convention allows it very little latitude, and that it is currently engaged with many issues that are outside the purview of the original convention on human rights.

A classic example of that is prisoners voting. The point is not that the question of prisoners voting cannot be resolved legally or philosophically but that it cannot be resolved on the basis of the European convention on human rights. Nothing in the convention provides sufficient detail or cogency to allow a judge, purely on the basis of the nostrum of a democratic society, to derive from that vague and abstract principle the conclusion that prisoners should have a vote. Such a thing could be done, but not by the European Court. It could be done by the British Parliament or by a British court, because it requires a much deeper background of legislation. In our case it would require the corpus of the common law; in Spain it would require the corpus of its continental legal system. To reach such a conclusion requires far more than the brief statements in the European convention on human rights.

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That does not mean that the European convention on human rights is useless—far from it. The convention with its fundamental principles is an incredibly useful, dynamic document that is unambiguous and clear—as it should be—on questions of torture. It makes every sense for the European convention on human rights and the European Court to rule on the protection of fundamental political rights of the sort contained in that document. It is not that torture, genocide, arbitrary arrest and arbitrary imprisonment are the only issues that matter. Many other issues of human rights also matter, but those are the only issues covered in the convention and on which the Court should be ruling. That is why the Brighton declaration brought together by this Government as the President of the European Council—the statements by the Secretary of State and the Lord Chancellor—are correct.

We require fundamental reform of the European Court. We must radically reduce the number of cases it deals with and clarify its legal and philosophical basis to determine on which cases it should and should not rule. The notion of subsidiarity, which was raised so eloquently by my hon. Friend the Member for Dover, is not a moral, legal, or philosophical principle but concerns the ingredients of the European convention on human rights. Those things are subsidiary because they are not covered in that document. We should not lose confidence in the notion of rights and in a convention that we were proud to create and which was created by a Conservative Member of Parliament and Lord Chancellor.

David Mowat (Warrington South) (Con): My hon. Friend is giving an eloquent defence but the logic of his position seems to be that we should not have a European convention on human rights or a Court, but rather a world convention. Is that his position?

Rory Stewart: That is a telling intervention. The answer is that we have signed and ought to respect and uphold the United Nations universal declaration of human rights. It exists; we are signatories to it.

Bob Stewart: We have signed up to it.

Rory Stewart: Yes. As my hon. Friend points out, we are signatories to that declaration of human rights. We were the first signatories to it in 1948 and it is the precursor to the European convention. We have signed it and we should respect it. Should we establish a court to uphold the information in the UN universal declaration of human rights? I think we should be very cautious of doing that. The UN declaration includes many elements that would be difficult for a court to rule on and that would be difficult to apply to the 200 members of the United Nations. For example, the declaration includes a right to paid holiday. That is difficult to imagine in Chad, Mali or the Congo. It is difficult to imagine what would be involved if somebody in a developing country who lives on a dollar a day asserted their right to a paid holiday, and it is therefore difficult to imagine an international court that would rule on that kind of information.

Nevertheless, in certain circumstances we should respect the UN declaration and international courts. A classic example is the International Criminal Court or the International Criminal Tribunal for the former Yugoslavia.

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Britain is a signatory to all cases with the ICTY and the ICC and upholds the rulings of those courts that deal with crimes against humanity. To return to the beginning of the argument, we sign up to such bodies because we accept that crimes against humanity can be committed anywhere by anyone in any circumstance, and the sovereignty of an individual Parliament or country does not trump an individual’s rights to be exempt. Not even the sovereignty of this Parliament. Not even this Parliament ought to be allowed to commit crimes against humanity—to put the most extreme situation. We sign these things at international level, and we constrain the power of our Parliament, as we should, in those specific cases.

In other cases, the moral, legal and philosophical arguments are better conducted in the domestic context.

Bob Stewart: Is it not the case that the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia try crimes against humanity and crimes of genocide only if there is no way that a national jurisdiction will deal with the problem? Only then does it go to the ICC or the ICTY.

Rory Stewart: That is a fundamental principle, and my hon. Friend is correct to raise it. In the international system, we have an important conception of state sovereignty. The only argument being made today is that state sovereignty is not absolute; it does not trump everything else, but to return to the language that my hon. Friend the Member for North East Somerset does not like, up to a certain threshold, state sovereignty obtains. Up to a certain point, there must be the opportunity to attempt to resolve the situation domestically, but at that point, when the state concerned has failed to deal with crimes against humanity, it is not only legal under the international system but morally correct for an international court to overrule the national Government.

David Mowat: May I press my hon. Friend further on his position on a world court of human rights? The logic of his position seems to be that the scope of the European court should be extended as far as possible, given that these things are absolute and not relative, as he says.

Rory Stewart: That is a very interesting and important question. The answer of course is that when David Maxwell Fyfe, of whom Conservatives should be proud, and Hartley Shawcross, of whom the Opposition are equally proud, brought the convention together, the objective was to spread it as widely as possible. Indeed, for more than 60 years the British Government have had as their policy an attempt to push it as far as possible, which is why the European convention now extends a long way beyond the boundaries of the European Union and takes in countries such as Russia. That is because we believe that the ingredients of the European convention on human rights are basic, inviolable and universal dignities. If anybody wishes to sign up to the European convention, we absolutely encourage them to do so. Any country that wishes to join, to sign up to the declarations and to be held to the high and exacting standards contained in that document, should be welcomed,

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but if the Court is to survive at all it needs to narrow its focus drastically; that is where my hon. Friend the Member for Dover is absolutely correct.

If the Court is to have any credibility or legitimacy in the long run, it cannot continue contributing to a situation where the British public end up feeling that human rights are trivial, that human rights are an excuse, that human rights are a charter for triviality, that human rights have the same relationship to real rights as “Health and Safety” does to real health and safety—in other words, that it is a factory for lawyers and insurance claims. To return to its fundamental principles, the Court needs to remember what it is there to do, and it is on that point that I really will conclude.

The European convention on human rights is not something that we as a party should set aside by suggesting that human rights do not exist. Human rights do exist, and all of us are proud to live in a society where our rights have been protected in different forms since Magna Carta. We did not use the words human rights until the French began to popularise them in the late 18th century; until then it was a specialist phrase that nobody in this country would have used. Indeed, it was not until after the second world war that anyone in this country started using the words human rights, but we have had the basic notion of the rights of man for 800 years. It is that the human is dignified and inviolable; certain things may not be done to that individual; anyone anywhere who is treated in that fashion is wronged; their possession of that right is not relative to the costs or benefits of upholding it in any particular case.

The European convention, drafted by us, enshrines those notions of basic decency—of equality of humanity and of inviolability. The problem with it is not the sovereignty of Parliament. The problem is not that rights do not exist. The problem is not that it is politically too complicated. The problem is that we have allowed the Court to stray from its fundamental job. It was given a very narrow task and a very narrow focus, which, broadly speaking, was to deal with crimes against humanity. We should therefore join my hon. Friend the Member for Dover in strongly demanding that the case load of the European Court is radically reduced, that the principles of subsidiarity are radically increased and that the Court ceases to get involved in situations that in principle, ethics or law, it is not competent to handle.

11.45 am

Jacob Rees-Mogg (North East Somerset) (Con): It is an enormous pleasure to follow my hon. Friend the Member for Penrith and The Border (Rory Stewart). That was one of the most instructive and thoughtful speeches it has been my pleasure to listen to in this Chamber. That is, I am afraid to say, a preamble to saying that there is a good deal of it with which I disagree, but I genuinely mean that it was a fantastic exposition of a defence of human rights to the extent that we have them.

There are difficulties with my hon. Friend’s view, as we discussed in various interventions. The question of absolutes is very difficult in the political context which law ends up being. In terms of moral absolutes, I have no difficulty, wearing a Catholic hat, in accepting them. I believe that clear moral absolutes are established by the Church, but the state is something very different,

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and pressures on it mean that the moral absolutes have to be dealt with in the context of the time. An obvious example is the definition of a just war. As we know, the definition, from Thomas Aquinas, sets out three conditions for a just war to overcome the problem of how states can deal with a threat to their existence against the Christian teaching that we should turn the other cheek. We find that a moral religious absolute is impractical in terms of the secular behaviour that states, Governments and nations require.

Individual Bills of rights or lists of human rights are not moral absolutes; they deal with political problems that exist at the time they are drawn up. My hon. Friend gave a wonderful example, of which I was unaware: the United Nations human rights convention that maintains the right to paid holiday. It is hard to believe that the right to paid holiday is an absolute moral right; it is something that comes about because of political pressure at the time—because of negotiations between the drafters and the sorts of things that lead to a political decision-making process.

When we look at the Bill, we see that some of the rights that are insisted on for a British Bill of rights relate to immediate and specific problems that we face. There is a part on voting rights for prisoners, and there is a part on the right to self-defence if one’s property is attacked. These are at the forefront of political debate at the moment. Therefore, good though the document is, it is hard to argue that the British Bill of Rights is an eternal moral document that will stand for 1,000 years.

The American Bill of Rights deals with the specific problems the Americans thought they had at the time when they were drawing up their constitution; although, interestingly, in the constitution rather than in the first 10 amendments, there is the part on how acts of attainder are limited: they may not relate to blood and they may not affect the next generation. An act of attainder was something that was an immediate political issue when the American constitution was being drawn up, but it is of no relevance today. Therefore, I dispute the point that Bills of Rights and human rights legislation deal with moral absolutes; instead I would argue that they deal with political problems.

I mentioned the wonderful example, from our own Bill of Rights, of the right to bear arms to maintain a Protestant militia, which was introduced immediately after the country had a Catholic King and a fear that he would use arms to enforce Catholicism on the country. A Protestant militia was considered necessary to defend against that. Wonderful and antique although that might be, it is not an eternal, everlasting moral principle. Indeed, I do not think eternal and everlasting moral principles often go well with the day-to-day practice of government and legislation.

The first of the four points made by my hon. Friend the Member for Penrith and The Border is the overwhelmingly important point—that the legitimacy of the political power that is making these decisions may then be altered by a subsequent political power. The next two points, on the issues of triviality and inconvenience, were arguments set up to be knocked down—they are clearly wrong-headed. It is absurd to say that some aspect of law is so unimportant that somebody should not have the right to bring a case on it. Equally, it is absurd to say that if something is inconvenient Governments can just override it because

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that would leave us with no rule of law at all. Therefore, the first point and last point are essential. The fourth point is the question of whether there is an essential morality that we can bring into our legislative system or whether it is, in fact, a matter of political legitimacy. In answer to that, I would say that it is a matter of political legitimacy.

It is interesting how well our constitutional settlement has served us. My hon. Friends the Members for Penrith and The Border and for Dover (Charlie Elphicke), have both referred to the Magna Carta, and said that we have had 800 years of these rights. Actually, the Magna Carta was a confirmation of rights that it was thought we already had. In 1685, habeas corpus was brought in as a confirmation of a right that we thought that we already had. The Bill of Rights itself is about confirming rights and stopping abuses of those rights. The approach has been to use the development of powers within this country—the barons in 1215, and Parliament in the 1680s—to assert these rights against an Executive who were abusing them.

We come to the position of Parliament. A great deal is made of parliamentary sovereignty. I am indeed a great defender of parliamentary sovereignty, but that is not an end in itself. Great, powerful and noble though these two Houses are, we are here as the servants of the British people with whom authority and legitimacy lie. That is the great safeguard of our rights and of our liberties. For a maximum five-year period, the British electorate have the final say on whether we are to continue in office, or whether somebody else is to be given a chance instead. That is at the core of the legitimacy argument.

The rights are the rights of the individuals who make up the United Kingdom. They may aspire to international rights, and that may be a wonderful ideal, but it is not one of practical implementation or politics. They have the right to suspend those rights from time to time when they see that there is a dire emergency. I am a great believer in habeas corpus as one of the most important rights that we all have to defend us from arbitrary government, but do I think that Pitt the Younger was right to suspend it during the Napoleonic wars, and do I think it was right to lock up fascists during the second world war? Yes, I do. It was correct to suspend a fundamental right when the nation was under fundamental attack, and no court outside this country could conceivably judge—

Rory Stewart: In suggesting that the right of habeas corpus can, in extreme circumstances, be suspended, my hon. Friend seems to be agreeing with the notion that there is such a thing as a right, a form of inviolability, albeit one that in certain situations may be set aside.

Jacob Rees-Mogg: My point of difference with my hon. Friend is the question of whether it is an absolute right that can be enshrined, or whether it is fundamentally arbitrary because once the threshold has been negotiated, the absolute quality of that right disappears. In that case, it is not an absolute moral right; it is part of our ancient liberties of which we are justly proud—and it is important that we should maintain it—but it is a liberty that can, in certain circumstances, be suspended. The question then is: whose judgment is legitimate during that suspension? In my view, the only possible legitimate

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authority for suspending that liberty has to be the body that represents the democracy that is at issue. It cannot be a foreign body or an overseas democracy; it has to belong to the people who are affected by it.

So, yes, in a religious context, there are absolute morals, and they may or may not be judged by a higher court at a much later stage in our lives, but they are not easily convertible in a temporal, secular society that has to deal with the immediate issues of the day. Our ancient liberties are a crucial way for us to defend ourselves against arbitrary government, and our constitutional settlement has been a great protector of those rights, in spite of the ease with which our constitution can be changed. Indeed, it is a greater protector of those rights than exists in all those countries with careful constitutions. Let us take the example of the arrangements at Guantanamo Bay, which the US Government have managed to say are constitutional. If a Government can find in their detailed constitution a legitimate way of doing something that is in fact outrageous, they can do that because they can say they are following the letter of the law. In our nation, however, we are always following the spirit of the unwritten constitution, which politicians have to abide by. We cannot get away with doing something outrageous by claiming to the electorate that we are following the letter of the law.

The row that we have had over terrorism prevention and investigation measures—TPIMs—and control orders relates to that point. We have introduced measures of an incredibly arbitrary and unjust nature, but they obey the letter of the law and meet the criteria set down in the European convention on human rights, as interpreted by our own judges. They replaced measures that were actually much fairer, in that, under an Act of the British Parliament, a foreigner living in this country who we did not want to live here could either leave or stay in prison. That seemed to me to be a perfectly reasonable thing for a sovereign Parliament to say. However, the courts said that it was incompatible with the convention, so we have come up with something that is compatible but fundamentally unjust.

That is the problem that arises when we try to impose absolute rights on a governmental system that needs to work with a degree of flexibility. We all accept that that flexibility is necessary, and it should then simply be a question of the examples that we need in order to determine it.

Rory Stewart: My hon. Friend’s analysis is moving and convincing, but I would challenge it by saying that it puts a high degree of trust in the seriousness, the historical knowledge and the culture of Parliament itself. If Parliament ceases to take on its responsibilities with that level of seriousness, and if it starts to make trivial changes to the constitution for reasons of political expediency, how are the British public to be protected against their Government?

Jacob Rees-Mogg: It is a matter not of trusting us, the politicians, but of trusting the British people who send us here in the first place. If we start playing fast and loose with the British constitution, there will be an election and we can be thrown out. If we use our powers arbitrarily, we can be thrown out.

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There are in fact pieces of superior law under our constitution, one of which is the Parliament Act 1911, which specifically protects the life of a Parliament against an extension purely by the House of Commons. There is therefore an in-built reservation to ensure that we have to go back to the electorate and get their permission to carry on with what we are doing. Arbitrary Governments that extend themselves beyond the powers that are thought to be legitimate find that the British people want to get rid of them. Indeed, that was a major issue at the last election. It was one of the areas in which the Conservatives and the Liberal Democrats came closely together, in that we were advocating the ancient liberties of the subject against the Labour party, which was constantly infringing those liberties and placing more and more power in the hands of the state. The British electorate, in their wisdom, decided to put into office two parties that were committed—at least they were when they were in opposition—to preserving the freedoms of the British subject. We have seen it tried and tested, and it actually works.

A further point is that once we start saying that this House of Commons or these two Houses of Parliament are not capable of making these decisions, and that they must be handed over to unelected judges overseas, we undermine this House’s confidence to deal with matters properly and we give an incentive for it not to take its responsibilities seriously. Why? Because if we get it wrong, there is somebody else who can clear up the mess. Leaving the responsibility here makes us take more seriously the duties we have as parliamentarians and the obligation we have to protect our constitutional settlement.

Let us come back to the key issue of legitimacy. I choose the word “legitimacy” rather than “sovereignty” deliberately, because it is about doing what is acceptable to the people to whom it is being done, and for that we require a body of people with a sufficient unity of purpose to accept that what is being done to them has legitimacy even when they themselves are in a minority in opposing it. When we in Britain are in a minority opposing a judgment of the European Court of Human Rights, we do not feel that that there is such legitimacy or that the majority that has overruled us has a proper authority to do so. When our courts come out with a judgment that does not relate to human rights, we may rail against it and be cross about it, but we accept it as legitimate. When Parliament passes Acts that we as individuals do not like or that minorities oppose, we accept that Parliament has the legitimacy to do it because we attach ourselves to the whole of the United Kingdom in acceptance of that legitimacy.

Rory Stewart: My hon. Friend is making a powerful and moving speech, and a lot of it is immensely appealing and convincing. There is a problem, however, which is the fact that we set up this Court and we seemed to be quite happy with it so long as it was going around telling other countries how to behave. All these problems of illegitimacy and of undermining the sovereignty of other people’s Parliaments did not worry us at all until this Court that we created turned around and started telling us off.

Jacob Rees-Mogg: I do not disagree at all with my hon. Friend. I think we do take the view—the rather foolish view—when we set up these Courts that they

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will never affect us. Let us take the International Criminal Court. Nobody ever thinks that any senior British politician could be hauled in front of it. If that ever happens, we might suddenly decide that we were not so keen on the ICC. I admire the judgment of the Americans who have not joined the ICC because they recognise that if it is justice for one, it is justice for all.

As a strong independent sovereign nation with a history of behaving well going back way before the Magna Carta, I think that we ought to be able to settle our rules for ourselves and should be cautious of setting up courts that are essentially victors’ justice. In setting up the European Court of Human Rights, what we were really doing was saying, “We have defeated all these nations of Europe. They have had terrible dictatorships before. They are not like good old Blighty, so let us therefore show them how to behave like gentlemen by giving them this Court and this convention.” Then, when they started saying to us, “Well, you, too, must behave like gentlemen”—and of course like ladies in this modern age—we did not like it because we thought it affected and undermined our sovereignty.

To sit on the fence to a degree, I think that providing some guidance after the war might have helped for a limited period some of the immature democracies to reform and rebuild themselves, but I no more think that Germany or Italy need to be guided by a European Court of Human Rights than does the United Kingdom.

Rory Stewart: The challenge to what my hon. Friend is saying is that it is not primarily Germany or Italy about which people would be concerned. What would concern people would be that if we left the European Court and dismantled the infrastructure that we have created, what is at present the Court’s real purpose and influence—which seems to be directed towards Russia and countries throughout eastern Europe—would be undermined. It is the countries that are still, perhaps, in the position that my hon. Friend described, for whom the Court exists, and it is for their sake that we would be tempted, simply on the basis of the foreign-relations contribution to those countries, to continue to participate in such organisations.

Jacob Rees-Mogg: I am afraid that that was the former mandarin speaking. It is the Foreign Office view of the world that we must do all these things that undermine our own constitution because it makes it nicer for us when we are dealing with our colleagues overseas. It may influence them a little, and so forth. I would never give up one whit of our constitution for a minor diplomatic advantage. The proportion of the benefit to us of guiding our own constitution and safeguarding the democracy of the British people, in comparison with thinking that we can influence President Putin by half a—

Rory Stewart: My hon. Friend is making a powerful point, but it is undermined by his earlier statement that after the second world war it made sense for us to give a limited amount of sovereignty to this organisation, in order to create exactly the peace and stability in Europe that was so central to the welfare and security of the British nation.

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Jacob Rees-Mogg: I am glad to say that I did not undermine my own argument. My hon. Friend may not be aware that until 1969 Henry VIII’s Act in Restraint of Appeals was still on the statute book, and that until 1969 it was treason to take an appeal out of this country to a foreign court. Between 1950 and 1969, therefore, it was impossible, illegal, treason, for the European Court of Human Rights to rule against the United Kingdom. We had set something up that was very beneficial for people who had emerged out of war without there being a risk of anyone’s appealing to it—except in Northern Ireland, which repealed the Act a little earlier, but that is slightly beside the point. We were safeguarded by our wisdom in not repealing rather more ancient laws—rather more ancient laws with which I have a certain sympathy, as it happens.

I think that it was when we had the confidence to be a nation standing on our own two feet that we said, “We will not allow any appeals to go outside this country.” A case in point at that time was the papacy. When we felt ourselves to be a weaker nation, a nation in decline in which the business of politics was managing decline and in which we could not look after ourselves, we had to have a foreign court to serve as the final safeguard and fallback for what we are trying to achieve in this country. I simply do not believe that that is right or legitimate. I do not believe that our membership of the European Court on Human Rights has sufficient influence on other countries.

Rory Stewart: If we were to adopt my hon. Friend’s proposal and leave the European convention and the European Council, how would he explain to the other European countries that, having created the European Court and drafted the convention, then trumpeted it and helped to impose it on other Governments, we had suddenly decided that we no longer wished to be a party to it?

Jacob Rees-Mogg: We have created an awful lot of things that we do not necessarily still run. After all, we created Belgium, and we do not claim to run that. I think we can fairly argue that our legal system and tradition are fundamentally different from the continental system, and that over generations the common law has built up protections that differ from those in the universal declaration of human rights. Indeed, it was probably a mistake for us ever to sign that declaration.

Rory Stewart: In other words, my hon. Friend would say to the European people, “We created the European Court of Human Rights 60 years ago, and we—Conservative and Labour Governments—spent a long time saying that it was a great force for civilisation and progress. We sent some of our most distinguished barristers and judges to the Court. We celebrated its judgments. We used it to put pressure on eastern Europe and Russia. But now we have decided that it was all a terrible mistake. We will leave, and we will encourage other countries to leave as well. The whole European Court system can collapse, and the consequences for our commitment to human rights, and our attitudes towards eastern and central Europe and Russia, can take their own course.” Is that a rough version of what he would say?

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Jacob Rees-Mogg: My hon. Friend says we celebrate European Court of Human Rights judgments, but it is hard to think of many of them that we have celebrated. I do not remember any jubilee parties having been held to celebrate its judgments. Indeed, as he will be aware, we dispute and dislike many of its judgments.

Rory Stewart: I think my hon. Friend would agree that we celebrated very strongly the European Court’s rulings on the issue of habeas corpus, of which he is, rightly, so proud. We took enormous credit for the fact that the European Court introduced elements of habeas corpus, the notion of no detention without trial, and the prohibition on torture, which has transformed the political economy and human rights of southern Europe. We were immensely proud of that, and it was part of our foreign policy and our contribution to our own security. Are we now moving away from all of that, or are we saying times have changed?

Jacob Rees-Mogg: My concern is how the European Court of Human Rights operates in this country. Just because we leave it does not mean other countries cannot remain part of it. The key reason why it is so difficult for us is because of the differences between the common law and Napoleonic law and the fundamental basis of rights.

In England and Wales, we have, under the common law, the right to do anything that is not specifically proscribed by law. That is a very different system from the continental system, under which people have the right to do what they are allowed to do. For a European system, therefore, a detailed list of rights setting out what people can do is needed, whereas here people only lose rights when Parliament, through its democratic process, has decided that they need to be taken away in the interests of the state. That might be someone’s right to liberty for having committed a crime, or it might be their right to vote because they have committed a crime and lost their liberty, but those decisions are made under the common law by Parliament. It is not a question of having a list of rights defining what people can do and then assuming anything not on that list is not allowed. Our system of rights, in common with that of the Americans, produces a much freer and better system—which protects ancient liberties, which I hold very dear—than a system of specific rights, where anyone who comes into contact with them may be provided with a judgment, as opposed to being free to do anything that is not specifically not allowed.

I am, of course, in favour of some aspects of the convention. I do not want us to pull out of it and then start torturing people, but it is worth bearing in mind why the common law did not have torture, and how our system developed without torture whereas the continental system developed with torture. It all goes back to 1215, when, interestingly, we get Magna Carta and they have the fourth Lateran Council, which states that trial by ordeal cannot be supervised by the Church, and because the Church cannot supervise it, it cannot be the will of God, and therefore in a continental system someone can only be found guilty if a confession is extracted. Hence, for very good reasons—for moral reasons—the fourth Lateran Council gets rid of trial by ordeal, and the law of unintended consequences means it results in

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torture being routine in the continental judicial system. By chance and good fortune, at the same time, because the barons have come up against the King, we get the rights of liberty preserved and the continuation of the development of the jury system as a means of getting to truth, while also dropping the right to trial by ordeal because then, in pre-Reformation times, we were still tied up to the doctrines of Rome. That demonstrates that our systems diverged very sharply. Of course people living under a system in which torture forms an instrumental part need rights to be defined more carefully, and they have not had them before, so they needed them to be imposed.

Rory Stewart: I promise this will be my last intervention. My hon. Friend spoke very well about the notion that deeply rooted in Magna Carta is a British immunity to any of these temptations. The problem, however, is that we are facing very difficult kinds of challenges today. It is very difficult to believe that the kinds of mechanisms my hon. Friend is talking about, which are primarily to do with the expression of a Back-Bencher’s opinions in the House of Commons and elections to this place, can have a fundamental effect on issues such as predator drones. How would he deal with the question of predator drone assassinations? How would he explain how British tacit participation in and knowledge of assassination by predator drones has continued for three years without this Parliament touching on it at all and, as far as I can see in my junior position as a new Member of Parliament, without having any intention of touching on it in the next few years? In the absence of any code of rights—in the absence of anything to which one can appeal in order to protect people—how on earth is one going to have protection for citizens?

Jacob Rees-Mogg: That is essentially a matter of politics and the doctrine of the just war. If we are involving ourselves in predator drone strikes, we must ask ourselves whether the three criteria of a just war are met. Is there sufficient cause? Are we a legitimate authority? Is there is a reasonable prospect of success? It is for the Government to make that case and if they cannot do so, Parliament will ultimately have to decide. However, I would certainly not put the safety of the nation in the hands of a bunch of judges overseas—that is the worst possible example for my hon. Friend to use, even though I am sympathetic to his basic point that using drones is not something with which the British should be involved. The decision on that—the decision on our own national security—must surely rest with the Executive, held to account by the legislature.

That is why we are here and why MPs have been here since Parliament was first assembled; we are here to bring redress of grievance against the Crown and against the Ministers of the Crown. It is our job when representing our constituents, and in the legislation that we vote on and the questions we table, to redress grievance where the rights, liberties and freedoms of our citizens have been undermined. We do not need an overseas court to do that. Indeed, to the extent that an overseas court does do it, that reduces our ability to do it for our constituents, because the overseas court appears to be the legitimate authority for redress of grievance rather than this House.

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The Bill is a step in the right direction, although I will not agree with every dot and comma of it. If I am asked to serve on the Committee, it will be a privilege and an honour to do so. I would like to see the Bill slightly simplified and to see it remove the European convention on human rights altogether. Indeed, I am not entirely sure that I would not like to see the Act in Restraint of Appeals return to the statute book to apply a slightly higher penalty for appealing outside this kingdom to foreign courts, because it is, in essence, the legitimacy of our democracy, the legitimacy of Parliament and the legitimacy of each Member here representing our constituents that defends the liberties of the British people. If we fail—if we do not defend those liberties and we pass them off to somebody else—the British electorate can get rid of each and every one of us and put in our place people who will stand up for their liberties.

12.17 pm

Mr David Nuttall (Bury North) (Con): It is a great pleasure to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who, along with my hon. Friend the Member for Penrith and The Border (Rory Stewart), has treated the House to an excellent discussion, full of the moral and philosophical complexities of the field of human rights. This is an enormously complex area. I feel loth to dive into it having heard the debate that has gone on for the past hour and a half, but I want to try to bring the debate back to the Bill and how my constituents look at this field of human rights.

Rebecca Harris: We have heard a superb debate on the moral and philosophical merits of human rights. We seem to have lost our way slightly on looking at the real problem we are facing in this country, which is a disconnect between what our judges are decreeing in our law courts as a result of the Human Rights Act and what the public understand to be common sense. The Bill addresses that issue, and we may have slightly veered away from looking at it directly.

Mr Nuttall: I am grateful to my hon. Friend for that intervention and I might be able to address that point in the course of my remarks. This is a matter of great concern to our constituents, and there is, perhaps, less of a philosophical disagreement among our constituents than that which we witnessed in the passionate and erudite speeches of my hon. Friends the Members for Penrith and The Border and for North East Somerset.

I warmly congratulate my hon. Friend the Member for Dover (Charlie Elphicke), who I am pleased to see back in his place. I understand that he quite reasonably took the chance to nip out for some sustenance, having made such a wonderful opening speech. It is entirely thanks to my hon. Friend that we are here this morning and I know that he has put in an enormous amount of hard work over many months to put the Bill together. I know that he had the help of others, but I shall leave it to him to decide whether he wishes to name them.

Charlie Elphicke: I thank my hon. Friend for giving way and for his typically generous comments. I should place on record my thanks to Robert Broadhurst, who helped me to put the Bill together and make the case for it. He has done a fantastic job. I also thank the members

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of the official Commission on a Bill of Rights, particularly Anthony Speaight and Martin Howe, whose learned input has helped, I hope, to improve the Bill.

Mr Nuttall: I am grateful to my hon. Friend for that intervention and I associate myself with his comments. The whole House is indebted to them for their work and diligence in putting together this Bill. I might not agree with every particular of it, as my hon. Friend the Member for North East Somerset has just said, but that is not the point. The point is that the House has been given an opportunity to debate a matter that is of great consequence and concern to our constituents.

We must not forget the manner in which my hon. Friend the Member for Dover managed to obtain the slot for the Bill in the first place. As Members might be aware, I am a member of the Procedure Committee, along with my hon. Friend the Member for North East Somerset. We had the pleasure of listening to my hon. Friend the Member for Dover when he came before us to give evidence as part of our inquiry into the private Members’ Bills procedure. My hon. Friend regaled the Committee with the manner in which he obtained the slot to introduce the Bill as a presentation Bill—I think that is right, and he is nodding in assent. He slept overnight outside the Committee Room—in the corridor, I understand—with little by way of sustenance. I think he mentioned that he might have slipped out for the odd beer, which is quite understandable. He stayed in the corridor overnight to ensure that he was first in the queue the next morning to secure a slot and have first pick of the dates for Second Reading. It is as a result of his hard work and diligence on that occasion that we are here today. The whole House should be grateful to my hon. Friend for that. He has done us all and the country a great service.

Looking at the Bill, one can see that it is no ordinary private Member’s Bill. Such Bills often run to just one or two pages, but this is a substantial Bill, which runs to no fewer than 21 clauses and has a schedule of several pages annexed to it. That gives some measure of the work that has gone into preparing it and bringing it before the House this morning. It should have been introduced as a Government Bill. Had a majority Conservative Government been formed after the last general election, perhaps it would have been. On page 79 of the Conservative manifesto at the last general election the following commitment was made:

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”

We all accept, of course, that the Conservatives did not win that general election and it is therefore understandable that the Government, being a coalition Government, have not introduced a Bill that was foreshadowed only by the Conservative manifesto. The coalition agreement provides for a commission, about which we heard this morning, to be established to look into the appropriateness of replacing the Human Rights Act with our own UK Bill of Rights.

Mr Chope: Would my hon. Friend comment on the conspicuous absence of Liberal Democrat participation in this debate? It is the Liberal Democrats who, in effect, prevented the Conservative party manifesto commitment on this being implemented.