I hope I have been able to reassure noble Lords that bullied children are very much not forgotten by this Government and are very much factored into our education reforms and that every reasonable step has been taken to support them and to end bullying in our schools. I restate the Government’s position and the principle that drives these reforms—all children, regardless of circumstances or setting, must be allowed to thrive and prosper in the education system and receive a good education.
Baroness Jones of Whitchurch: May I push the Minister on the issue of whether bullied children can access SEN facilities temporarily? He quite rightly made the point that SEN facilities normally are for longer term ailments, but is there any reason in principle why we could not amend either the existing legislation
or the Children and Families Bill to allow for that temporary access? I wonder whether he would look sympathetically at an amendment along those lines when the Bill comes before us later this year.
Lord Nash: I am certainly happy to discuss this with the noble Baroness and see what can be done in this regard.
2.04 pm
Baroness Brinton: My Lords, I thank your Lordships for a moving and interesting debate on this very serious issue. I particularly want to offer my congratulations to the right reverend Prelate the Bishop of Truro on an insightful contribution on children in poverty and the risks that they face from bullying. I thank the noble Lord, Lexden, for highlighting homophobic bullying; the noble Baroness, Lady Jolly, for focusing on mental health problems; the noble Baroness, Lady Howe, for talking about the importance of pupil mentors; the noble Baroness, Lady Walmsley, for focusing on empathy and helping bullies—reducing the number of bullies will solve bullying—and the noble Baroness, Lady Jones of Whitchurch, who talked about the long-term consequences of bullying and also helped to list what needs to be in place to support severely bullied children and to move towards their recovery.
I am particularly grateful to the Minister for his responses to virtually all our questions—we did throw rather a lot at him—and to his confirmation of the Government’s commitment to reducing bullying. As the noble Baroness, Lady Jones, said, I remain concerned about the issue of short-term statements and I have warned the Minister that I am likely to be laying down some amendments when the Children and Families Bill comes before the House. In the mean time, if the dedication and commitment from everyone who spoke in this debate are replicated elsewhere in the country, we can really start to remove the scourge of severely bullied children and help them to recover.
Baroness Garden of Frognal: My Lords, as this debate has run slightly short and we are still missing one or two of the speakers for the next debate, I suggest that the House do adjourn during pleasure until 2.20 pm.
2.06 pm
Business
Announcement
2.20 pm
Baroness Anelay of St Johns: My Lords, as Government Chief Whip, it falls to me to apologise to the House on behalf of the Government Whips team. In trying to assist Back-Benchers who were about to take part in this debate they mistakenly adjourned the House during pleasure. I do not think that any noble Lords were upset by that—perhaps I am the only one to be aware that it is perhaps unfortunate that it was done. Clearly it is a practice and procedure of this House to proceed
cleanly from one item of business to another. It is the duty of Back-Benchers who are taking part, as well as Front-Benchers, to be sure of the start time of the debate.
There are no fixed times on a Thursday, so when the first debate was clearly running a little short in time because those taking part were a little more succinct than expected, the doorkeepers, at our request, very carefully put on the annunciator the normal green sign, which gave ample notice that the following debate in the name of my noble friend Lord Lester of Herne Hill was going to begin in short order. That is the sign that noble Lords should have been waiting for; indeed, they should have been here as soon as they saw that the Minister, the noble Lord, Lord Nash, was winding for the previous debate. It was therefore regrettable that there were two Back-Benchers who were not present, and in trying to be courteous one of my colleagues, who is one of the best of our Government Whips, took advice and felt that it was perhaps better to adjourn. I have advised her that in being kind she was perhaps too kind. This is not something we will seek to repeat.
As soon as a debate begins, all those taking part, with the owner of that debate, my noble friend Lord Lester of Herne Hill, are expected to be present for the opening speeches, the winding speeches, their own speech—I would hope—those from noble Lords either side of them, and as much of the remainder of the debate as they may attend. Of course, if colleagues do not attend opening speeches, they may not speak—I am looking very carefully for one who is still not here—and they will be advised by their Chief Whip that if they were to proceed it would be discourteous to the House.
I have now given two full minutes for those absent to arrive. On that basis I conclude my apology, and I certainly hope that the following debate will be both informative and enjoyed, a characteristic of our Thursday debates.
British Bill of Rights
Motion to Take Note
2.22 pm
Moved by Lord Lester of Herne Hill
That this House takes note of the report of the Commission on a British Bill of Rights.
Lord Lester of Herne Hill: My Lords, I am very grateful to my noble friend for reminding us that this House has decent standards. On this occasion I am able to plead not guilty.
I am delighted to have the opportunity to initiate a debate on the report of the Commission on a Bill of Rights, of which I was a member. I am also glad that two of my fellow commissioners, the noble Baroness, Lady Kennedy, the noble Lord, Lord Faulks, and so many other distinguished Members will take part. I look forward especially to the speeches in reply to the debate from the noble Lord, Lord Bach, with whom I worked when I was an unpaid independent adviser to Jack Straw under the Brown Government,
and from my noble friend Lord McNally. I have mentioned those taking part in the debate; I am also glad to say that Sir Leigh Lewis, the noble and learned Lord, Lord Browne-Wilkinson, the noble and learned Baroness, Lady Butler-Sloss, and the former Attorney-General of India, Soli Sorabjee, are all here to witness the debate.
We were nine commissioners: eight white QCs, one woman and two Scots, with the distinguished former civil servant Sir Leigh Lewis as chair. As I said, he is here today to witness our debate. Sir Leigh had Solomon’s wisdom and the patience of Job. In attempting to secure a unanimous report he endured, like Job, much undeserved suffering. In the current polarised political climate of hostility to Europe’s political and legal institutions, well reflected within the commission, it was a thankless task. However, the report was and will remain important and its quality owes much to the dedicated able staff who supported us. I hope it will be read when the time is ripe for much needed coherent and enduring constitutional reform.
There are two main reasons in favour of a modern constitutional Bill of Rights: a good reason and a bad reason. The good reason is that, instead of relying upon a European treaty to define and protect our fundamental civil and political rights and liberties, we need a home-grown constitutional measure based on our constitutional and legal heritage that will command widespread public confidence beyond the courts and the legal profession. The bad reason is that a home-grown Bill of Rights would enable us to withdraw from the European Convention on Human Rights and the ability to seek redress from the European Court of Human Rights where our courts are unable to provide a remedy. According to this view it would enable the Human Rights Act to be scrapped and replaced by a measure that gave more power to the Executive and Parliament to restrict or limit our civil rights and freedoms.
Many of those who would agree that there are good reasons in theory in favour of a modern Bill of Rights fear, with good reason, that its adoption would result in our withdrawal from the European system for human rights protection and would strengthen state power at the expense of individual freedom and the protection of minorities against what John Stuart Mill called the “tyranny of the majority”. It was that well founded political anxiety that led to dissent by two of the commissioners appointed by the Deputy Prime Minister, the noble Baroness, Lady Kennedy, and Professor Philippe Sands, whose distrust of the Tea Party tendency in the current Conservative Party made them refuse to support a new Bill of Rights in the current Eurosceptic political climate. I fully respect their view.
I set out my own position in a separate note in the report at pages 231-33. My position—and I believe that of commissioner Sir David Edward, the distinguished former judge of the European Court of Justice—is that we favour carefully considered constitutional reform if, but only if, it strengthens rather than weakens effective protection, and if, but only if, the UK remains bound by the convention and the judgments of the European Court of Human Rights. Every one of the 47 member states has made the convention rights part of their domestic law.
Any move towards a UK Bill of Rights would need to be made carefully and sensitively after wide public consultation within each country of the United Kingdom and across the nation as a whole, in the context of the constitutional debate that is bound to occur, whatever the outcome of the Scottish independence referendum and the debates in Northern Ireland about whether additional protection is needed there.
The present Government have been no more capable of achieving coherent and ensuring constitutional reform than their predecessors, despite the reforms made under the Cook-Maclennan Labour-Liberal Democrat agreement, in which my noble friend Lord McNally and I took part. Opportunities have been botched, not just by this Government but by the Brown Government. However, whatever the outcome of the Scottish referendum, we will need to rethink devolution and whether, for example, it should be replaced by a federal system in which this House becomes an indirectly elected senate with some appointed members. If so, there would definitely be the need for a federal Bill of Rights to be read and given effect in accordance with our international and European legal obligations. There is also the long-standing pledge in the Belfast agreement to introduce an additional Bill of Rights for Northern Ireland. It would be sensible to create a broad-based constitutional commission to clarify the options for the next Government, but only if it had the support of all three main political parties. That, regrettably, seems unlikely.
The elephant in the Chamber is of course the Strasbourg court. The European court and its judges are subject to constant unfair attacks, personal and political, by the Mail, the Telegraph and the Express, among others, which campaign to end what they call the “Human Rights Act farce”. They are commercially self-interested, because they wish to be free to invade personal privacy without the limits imposed by the convention. They do not acknowledge the way in which the Strasbourg court has strengthened the protection of freedom of speech and freedom of the press in this country. Examples of this include the cases of thalidomide, Goodwin, Tolstoy, Spycatcher, Max Mosley and the Mirror Group Newspapers case on unfair cost rules. Indeed, one of the main purposes of the Defamation Act 2013 that we recently passed is to make our archaic and oppressive libel law compatible with Article 10 of the convention, by striking a fair balance between free speech and the protection of good reputation. My noble friend Lord McNally of course gave superb leadership to accomplish that end.
The English print media attacks, supported by too many MPs who should know better, have included gross and offensive criticism of the distinguished former president of the Strasbourg court, Sir Nicolas Bratza. These attacks may be partly responsible for the absence of any senior British judicial candidates to replace him on the European court. Another factor may be the uncompetitive nature of the pension and other arrangements for British judges joining the Strasbourg court, moving family and home to Strasbourg only to face abuse from the media and politicians for their pains. The pension arrangements for new judges are significantly worse than for judges serving in the UK.
I hope the Minister will confirm that this gap will be addressed for future appointments.
The fact that our senior judges will no longer serve on the Strasbourg court, and are unlikely to do so unless the Ministry of Justice introduces incentives, is very bad news for those of us who cherish our common-law system and want to promote its virtues within the European system. It is also bad news for those of us who are friends of the Strasbourg court. We are fortunate to have Judge Paul Mahoney on the court, but it is essential for his successor to be a powerful and experienced jurist with a thick skin.
I was in Strasbourg two weeks ago. Diplomats, judges and civil servants all told me of their profound mistrust of our Government and its real objectives, as the Prime Minister, the Home Secretary and the Minister of Justice threaten no longer to accept the court and its judgments and to tear up the Human Rights Act. There is deep despair and a serious loss of British influence. Churchill, Macmillan and Maxwell-Fyfe, who led the European Movement and the creation of the convention system, would be appalled and ashamed at the way the tabloid press, swivel-eyed Tory Tea Partygoers and UKIP now call the tune. How can the UK claim to uphold the European rule of law when a former Lord Chancellor for whom I worked, the right honourable Jack Straw MP, boasts in his memoirs of refusing to give effect to the Strasbourg court’s judgment in the Hirst case? He and David Davies MP, then the shadow Home Secretary, went to Strasbourg to remonstrate with the court’s president, Sir Nicolas Bratza, about the court’s case law. I find that completely unacceptable.
The Minister of Justice also wears the robes of the Lord Chancellor. The noble and learned Lord, Lord Mackay of Clashfern, the great holder of that office in the Thatcher Government, has no doubt that the UK is in breach of its international legal duty to give effect to the Strasbourg court's judgment in Hirst. However, the right honourable Chris Grayling thinks the court has overreached itself and that Parliament must have the last word. He does not appear to be concerned about the effect of his approach in undermining our reputation as a rule-of-law country. Ministers have a duty to comply with international law and treaty obligations, as is made clear in the Ministerial Code, proclaimed by the Prime Minister when he took office in 2010. It states:
“Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety … The Ministerial Code should be read alongside the Coalition agreement and the background of the overarching duty”—
I repeat, the overarching duty—
“on Ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”.
Jonathan Fisher QC, a Conservative member of the commission, suggested last week in the Times that the Government should campaign to persuade the Committee of Ministers of the Council of Europe to refer the UK’s refusal to implement the Hirst judgment back to the European court, because the court has exceeded its jurisdiction. There would be no sympathy at all for that idea. No doubt, in a bid for the support of the media and English nationalist voters, the next Conservative
manifesto will promise a British Bill of Rights to replace the Human Rights Act and the role of the Strasbourg court. I hope and believe that the British people will reject that proposal when they realise that it would weaken protection against the misuse of state power. It would certainly be rejected in the Celtic nations of the UK.
Whatever the outcome of the Scottish referendum, the next Government will need to review our constitutional system. The celebration of Magna Carta in June 2015 might be the occasion. A future coalition not beholden to UKIP should seek to strengthen the Strasbourg court. We need new arrangements to ensure that British judges may be seconded without being worse off financially. The system of election of Strasbourg judges needs to be reformed, as was promised in the Brighton declaration. There are other practical proposals that also need to be implemented. The court does not have enough funds to clear the backlog. The registrar of the court has written to the Committee of Ministers pointing out the problems that need to be addressed.
Ministers need to rebut the myth that the Strasbourg court is a “foreign” court and constantly overturns the decisions of the UK courts. In 2012, of more than 2,000 UK applications decided by the court, only 12 resulted in a finding of a violation. The present politically divided coalition Government, which is also divided on this issue, are unlikely to address these issues effectively. We must hope that the next Government will use the ideas in the commission's report to strengthen the effective protection of human rights at home and across the European space, for the sake of the peoples of our nations. I beg to move.
2.38 pm
Lord Faulks: My Lords, I begin by congratulating my noble friend Lord Lester of Herne Hill on securing this debate. I also congratulate him on his enormous contribution to the cause of human rights over the years. I should declare an interest as a member of the commission, though I came relatively late to the party, joining as a replacement for Michael Pinto-Duschinsky. On leaving the commission he expressed his views firmly and widely on where he thought the discussions had gone wrong. During my period at the commission there were certainly vigorous debates about a number of issues, as is apparent from the range of views expressed in the report. However, the process of arriving at our conclusions was a civilised one, made easier by the skilful chairmanship of Sir Leigh Lewis.
There was a majority view, as your Lordships have heard, in favour of the creation of a UK Bill of Rights that incorporates and builds on our obligations under the European Convention. That was the answer to the question contained in our terms of reference when the commission was set up by the Deputy Prime Minister. However, it seemed to at least two of us that the commission had not been asked to consider the key issue: namely, how the United Kingdom should respond to the judicially activist approach taken by the European Court of Human Rights in its interpretation and application of the convention in the past 30 years—in particular, whether the United Kingdom should consider withdrawal from the court’s jurisdiction, or at least renegotiate our terms of membership.
Jonathan Fisher QC and I were responsible for a paper entitled Unfinished Business,which is incorporated in volume 1 of the commission’s report. It reflects our views and, I venture to think, the views of others outside the commission. I respectfully suggest that those views are not restricted to what my noble friend described as the “Tea Party” tendency in the Conservative Party. I will not repeat now what we said but will make a few observations that arise from the commission’s report.
In talking of human rights, it is easy to approach matters at a level of abstraction. However, what does a human rights case actually look like at domestic level? Here I must declare a further interest as a practising barrister who, since the enactment of the Human Rights Act, has devoted a considerable amount of time to defending public authorities against claims arising directly or indirectly from the Act. Fascinating though these cases have been, I have been far from convinced that most of them have very much, if anything, to do with what people would once have meant by the expression “human rights”.
The courts in this country have, for the most part, strained to follow Strasbourg case law and its often rather creative interpretation of the convention. Supporters of the Human Rights Act tend to extol the wording of the convention, which contains a perfectly acceptable summary of human rights. However, as Jack Straw, former Home Secretary and Secretary of State for Justice, said in the debate on prisoner voting,
“the problem is not the plain text of the convention, but the way in which it has been over-interpreted to extend the jurisdiction of the European Court ... the problem has arisen because of the judicial activism of the Court in Strasbourg, which is widening its role not only beyond anything anticipated in the founding treaties but beyond anything anticipated by the subsequent active consent of all the state parties, including the UK”.—[
Official Report
, Commons, 10/2/11; cols. 501-02.]
In a way this was all very predictable. Lord Denning was a judge who was once highly regarded as a legal thinker. His judgments are cited much less often in the courts now. He wrote a great deal about the European convention. It was relied upon in courts before the Human Rights Act was enacted. He said in the case of Ahmed v Inner London Education Authority in 1978:
“The Convention is drafted in a style very different from the way we are used to in legislation. It contains wide general statements of principle. They are apt to lead to much difficulty in application; because they give rise to much uncertainty. They are not the sort of thing which we can easily digest. Article 8 is an example. It is so wide as to be incapable of practical application. So it is much better for us to stick to our own statutes and principles, and only look to the Convention for guidance in case of doubt”.
I suggest that there was much wisdom, indeed prescience, in what he said, albeit that his views are often dismissed as insular.
One aspect of the debate that has not sufficiently been emphasised is the extraordinary cost of human rights. Before I became a member of the commission, I asked a Written Question of the Minister as to whether the commission would be considering as part of its report questions of cost. The reply was that this was a matter for the commission. On arrival at the commission, it was apparent that the membership did not consider cost to be within its terms of reference. On 7 March 2013, I asked the Minister here in the
Chamber to tell us whether the Government could give us any figures for how much human rights were costing us. His answer was that he could not do so. He described respect for human rights as being,
“a prize beyond cost”.—[
Official Report
, 7/3/13; col. 1614.]
All noble Lords value the protection of human rights, but, with great respect, that does not mean that the question of cost becomes a no-go area.
The LASPO Act made some widespread changes in the cost of litigation. Many were timely, in particular those that effectively implemented the Jackson reforms. I was somewhat less enthusiastic about the alterations to legal aid, which had the potential to deny representation to some with genuine claims and limited means. However, the Minister was reassuring as to the alternative and cheaper ways in which ordinary citizens could seek appropriate remedies. One exception to the cost-cutting exercise appeared to be cases involving the Human Rights Act. No figures were given to Parliament as to how much such cases were costing or would cost in the future. Were the Government concerned that denying legal aid to any claim involving the Human Rights Act would put them potentially in breach of Article 6 of the convention?
Claims involving the Human Rights Act continue, whether as claims for compensation or as the basis for judicial review. The sums awarded are often trivial. The cost, however, is not. The cost of the Abu Qatada litigation is said to be in excess of £1.7 million. It seems to be absolutely crucial that the Government should at least make some attempt to calculate what the HRA has cost in terms of legal fees generated by litigation. The cost does not end there. Public authorities have conscientiously attempted to ensure that their policies and practices are human rights-compliant. This is a very difficult exercise because it depends on trying to second-guess what view the Strasbourg Court, and thus our courts, will take of a particular situation. We need to know about these costs in an area that has much in common with our overreaction to the requirements of health and safety or even the Data Protection Act.
I have another substantial question for the Minister. I appreciate that he may have difficulty in answering some questions, in view of the well understood difference of opinion between the Liberal Democrat Party and Conservative Party in relation to the Human Rights Act, but I hope that he can answer this one. Do the Government agree that in leaving the ECHR, if that course were taken, we would also have to leave the European Union? This was the somewhat surprising view recently expressed by Judge Dean Spielmann, the president of the ECHR. My understanding of the position is that EU treaties do not provide that adherence to the European convention is a formal requirement of continued membership of the EU, even if membership may be regarded as a benchmark in terms of respect for human rights.
Such respect is something that unites us all, but if we were to leave the Strasbourg Court and indeed the Council of Europe, this respect for human rights would not diminish. Before the Act came into force, this country had a proud, albeit not unblemished, record for the protection of human rights through its
domestic law. We are, of course, bound by a plethora of international obligations from which we would not be relieved were we to leave the Strasbourg court. Any noble Lords who wish to be reassured about our contribution to the protection of human rights and democracy all over the world should read the 2012 Foreign and Commonwealth Office report published in April this year. It is a remarkable tribute to the work of the FCO. If I highlight in particular its work in relation to sexual violence as a weapon of war, that does not in any way diminish the other aspects of its work.
The JCHR, of which I am a member, would still have important work to do even if the Act were to be repealed. The EHRC, set up pursuant to the Equality Act, would continue to have an important role. Above all, Parliament can legislate to protect human rights on a more targeted and nuanced basis, rather than having to perform somersaults to reflect actual or potential decisions made here or in Strasbourg.
The question is therefore not whether we should be protecting human rights but whether the Strasbourg court is the best or even the preferred method of defining or enforcing human rights standards. It is said by some that we would be a pariah state were we to cut our links with the Strasbourg court. The human rights records of some counties subject to the jurisdiction of the European Court suggest that membership is hardly a guarantee of the protection of human rights.
It is important not to demonise the Strasbourg court. It does not have the same regard for precedent, and the jurisprudence in this country, post human rights, can make difficult reading, as judges try to impose some sort of taxonomy—because of our courts’ respect for precedent—on a jurisprudence that lacks such respect. As my noble friend Lord Lester said, some of the decisions from Strasbourg have been profound and influential. However, if we were to leave the convention it would not mean that we would ignore such decisions any more than we would ignore influential decisions from elsewhere in the world.
My noble friend said that the European convention was the work of distinguished Conservative politicians and referred to Sir David Maxwell Fyfe as one of those responsible for its first draft. This is true but social historians, particularly having regard to his response to privacy and gay rights issues, tend to the view that it is most unlikely that he would have approved of the way the Human Rights Act developed and has been interpreted.
In conclusion, I remain passionately committed to the cause of human rights, but retain deep reservations about the Human Rights Act. Above all, I am concerned that human rights can get so easily lost in the law and the language of lawyers. Whereas law should be the servant of human rights, it has become their master.
2.51 pm
Lord Goldsmith: My Lords, I need to start with an apology to the House and to the noble Lord, Lord Lester of Herne Hill, for arriving after the start of the debate. I can pray in aid a little bit of confusion about the starting time of the debate, and I know very well
the views of the noble Lord, Lord Lester, from over the years so I can predict some of the things that he would have said.
I therefore hope that the House will permit me to make a few brief observations on this very important topic. In doing so, I declare an interest as a practising lawyer. I have been involved in human rights work, in the sense that a lot of the work that I did when I was Attorney-General involved vetting and approving—and occasionally not approving—legislation or executive action on the grounds of compliance or non-compliance with our Community obligations and arguing cases on behalf of the Government either in this country’s courts or, from time to time, overseas, including in Strasbourg. I have some experience of how the European convention and the Human Rights Act work. I was also the Prime Minister’s personal representative in negotiating the European Charter of Fundamental Rights, which was set up following the Cologne and Nice summits to try to draw up a charter for the institutions of the European Union rather than its member states. I am therefore familiar with the debates.
The principal point that I want briefly to make is that I am despondent and unhappy about the turn which has been taken in the debate on human rights, and I am therefore unhappy about the commission’s report. I am concerned about a proposal that would not just put in place additional protection in a British Bill of Rights but, at least in the view of some members of the commission and some members of the Government, replace the European Convention on Human Rights with something else. There are three reasons why that would be a retrograde step.
The first reason is the universality of human rights protection that the European convention gives rise to. It gives rise to universality across the European countries which subscribe to the Council of Europe and the European convention. This does not mean that it is interpreted or applied in exactly the same way in every country, nor should it be. There are different social conditions and the principles—the so-called margin of appreciation—provide an opportunity for different countries to be allowed a chance to apply the rules and rights in the European convention in a way which suits the social and economic conditions of that country. Otherwise, it means that all the countries which subscribe share the same fundamental values and are subject to the same fundamental restrictions on how they deal with people within their territories.
I am really worried at the prospect of the message it would send if the United Kingdom were to leave the European convention. The noble Lord, Lord Faulks, talked about the UK becoming a pariah state, but that is not quite what I have in mind. He also rightly described the very proud and important contribution that this country has made to human rights protection in many parts of the world. However, once it became clear that the view of the United Kingdom was that it could go its own way and no longer needed the European Court of Human Rights or to follow the European convention, I would worry about the example that we were setting. There are countries in eastern Europe—I will not name them but noble Lords can identify them very easily—that already find it difficult to comply
with their obligations, and if they felt that they had the liberty to produce their own Bill of Rights and their own protections they would move in a very different way.
Secondly, the convention provides for a permanence of protections. It is not an immutable convention: it is open to member states to change. It is more often changed by the addition of rights through the agreement of new protocols but it is not impossible for member states to agree changes. However, it differs very much from parliamentary legislation in that it is not open to a single state to say, “We do not like the decision that the court has just made therefore we are now going to amend the right that is at issue”. I would be very worried if the protection of human rights in this country depended only on a statute of this Parliament, for which I have enormous respect. It would still mean that it would be capable of amendment, variation, revocation or removal if there were a parliamentary majority for that to take place. I am concerned that there is a risk that something as important as the protection of our fellow citizens could be subject to short-term political issues or the pressures of newspapers.
My third concern is the detail: the devil is always in the detail. I see from the commission’s conclusions that:
“The majority are agreed that such a Bill should have at its core the rights currently in the European Convention on Human Rights … That does not necessarily mean, however, that they would have to be written in identical language”.
I had exactly that issue when negotiating the charter. The question then was whether we should write the relevant rights and obligations in the same terms used in the European convention or use different language. As soon as you use different language, any lawyer will find a difference in the meaning intended. I do not know how it is to be done because we do not know what the detail of a new Bill would be, but there is a real risk that the rights written—allegedly not in non-identical language but protecting the same rights—would not actually be protected. When I was in office and debated the European convention with my opposite numbers I used simply to ask which of the rights in the convention they did not agree with: the right to a fair trial, the freedom of speech, freedom of association, the prohibition of torture, the prohibition of inhuman and degrading treatment. When one analyses that—given that the rights concerned are basic rights, rightly put into place following the horrors of the Holocaust—it is difficult to rewrite this in a way which does not risk removing those rights in some respect. If that is not the intention I do not see the point of rewriting it, and that worries me a great deal.
My final point is that I share the views of those who have said that it would be very good if more could be done to try to explain how the Human Rights Act and the European convention work. There are myths and misconceptions; we came across a lot of them in the time that I was in office. For example, there was the allegation that an escaped burglar was provided with food when he escaped because of his human rights, when it was nothing at all to do with that. In fact, it was not food but drink; it is a jolly good way to get somebody down from a roof, to ply him with a lot of drink—non-alcoholic drink, of course, although maybe
with alcoholic drink it would have been even faster. Lots of stories were promoted, and came across in the newspapers about events said to have taken place, but they were simply not the case. There is a huge amount of misconception.
I worry about the things that the present Government say that do not illustrate a complete understanding of the Act. This is not the first time that I have said this, but I was troubled by what the right honourable Mr Grayling, the Lord Chancellor, said in relation to the prisoner votes debate—that it was open to this Parliament to ignore a decision made in a case to which the United Kingdom was a party. Under the Human Rights Act it is perfectly true that, when it is a decision in relation to another country, our courts are required only to have regard to the decisions. However, none of that takes away from the obligation that this country has, having entered into an international obligation, to follow the decisions of the court when they are made against us.
Others will speak with more authority about the work of the commission, but I am grateful to noble Lords for listening to me.
3.01 pm
Lord Maclennan of Rogart: My Lords, I am the first non-practising lawyer to contribute to this debate, but it is the case that I had an oversight of some of the legislation, notably that of 1998, which was the third stage in the development of international protection of human rights. The first was the ratification of the convention in 1953; the second was giving the right of petition to individual citizens in 1966, in this country; and the third was the so-called incorporation of the convention.
I am bound to say that I have been disturbed by the attitudes expressed by a number of Conservative Members of both Houses about the underpinning of human rights. It seems to me that the division of opinion was reflected in the commission itself, and I understand clearly why the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands were reluctant to advocate any change in the status quo at this time. There are good reasons for considering whether the scope of domestic protection of human rights should be enlarged. However, I would think that it could not be done entirely on the basis of the commission’s report.
My noble friend Lord Lester of Herne Hill deserves laurels from the nation not only for his participation in the work of this commission but for the strong defence that he has made over the years of the enlargement of the practical protection of human rights. I am very grateful to him for opening the debate as he did.
Many aspects of our constitution are developing gradually, but without necessary regard to their impact on other aspects. At this time, not least because of the Scottish dimension and the definite possibility of a referendum on independence, we will have some difficulty in considering this in isolation from these other constitutional considerations. I would hope, however, that in pursuance of one of the recommendations of the commission, namely that of making the public
more widely aware of the importance of the protection of human rights—of what the Human Rights Act does and where it is, perhaps, limited—we could establish some kind of convention, not just on the protection of human rights, but more widely. Speaking as a Scot, I do not think that the people of Scotland should think that their choice is between independence and the status quo; there should be a possibility of development towards a more federal system of government internally in this United Kingdom. If that proposal were to be taken up by the Government, I hope that it would be considered with great care—and it has been considered by the Graham Allen-chaired committee in the House of Commons. There would be an opportunity to involve not just interest groups or politicians but individual citizens and to spread a greater understanding of the importance of the protection of human rights. One possibility is that we might seek to extend effective protection by taking account of other conventions to which we have signed up but not necessarily given effect, such as the UN Convention on the Rights of the Child.
I believe that we have in the past been an exemplar of the protection of human rights, and that should remain our goal. I agree very much with the noble and learned Lord, Lord Goldsmith, in his strictures about opting out of the work and jurisdiction of the European Court of Human Rights, for the reasons that he gave. At this perilously fragile time within the European Union—but not only within the European Union—there would be a great danger in our giving an example of withdrawing from the broadly expressed rubrics of the convention on human rights.
One issue that has emerged in this debate is around the language of the protection of human rights, which has always been cast in very broad and general terms. If you go back to the Bill of Rights of 1689, you will find similarly broad expressions. I do not think that it would be at all sensible to narrow the effectiveness of those broad rights by having greater definition; certainly there could be extension, but not tighter definition. That is why the judges should have a balancing role in our constitution. I am very unhappy about the principle of sovereignty of Parliament, if it is judged as being something capable of being used to produce results contrary to the history of our country and values that we have, over many centuries, embraced and become more particular about. Consequently, I take the view that the position of judges in this country is important.
I note what has been said, and clearly action needs to be taken. I hope that the Minister may be in a position to give us some indication of what action can be taken to strengthen the European Court of Human Rights, in the light of the backlog of cases and the cost of sweeping up this backlog, and whether he believes that the Brighton declaration might lead to greater international harmony on reaching agreement about the appointment of judges and so forth.
Nevertheless, the system as it is is so much better than it was, and I very much hope that we take our time to consider how to enlarge this and to involve the public and the constituent nations of the United Kingdom. Northern Ireland is a special case because it has been given some indication that we might be ready to do
something about its protection of human rights. Scotland and Wales are in a fragile—or, at least, indecisive—position at the moment. The coalition Government should therefore not seek to come to a quick conclusion about how we are going ahead, but the direction seems to be clear. We need a Bill of Rights against which we can judge the appropriateness of executive action and, indeed, the conformity of legislation with the fundamental values that we, as a nation, have embraced and wish to continue to embrace.
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Lord Brown of Eaton-under-Heywood: My Lords, I hope not to detain your Lordships too long. Indeed, had I appreciated in advance what a wealth of legal and constitutional expertise was to be available to the House in this debate, I doubt that I would have troubled your Lordships at all.
I speak as one who, over the 13 years since the convention became part of our domestic law, has probably been involved in at least as many cases dealing with convention rights as any other judge in the country. The main reason I speak is to try to save my successors in the courts from what I believe would be the nightmare of implementing the majority’s central recommendation in this report; the nightmare of having to wrestle in the courts in future not merely with the complexities and uncertainties of the convention and of the vast body of jurisprudence that it has spawned but with those of a new UK Bill of Rights superimposed on it. I say “superimposed” because it is, of course, a given of the majority’s case in favour of a domestic Bill that it would in no way detract from the existing rights and freedoms under the Strasbourg convention. Rather, as the report states,
“such a Bill would incorporate and build on all of the UK’s obligations”,
“UK’s continuing adherence to the European Convention on Human Rights and to the European Court of Human Rights as a given”.
It follows inescapably from this that the baseline of any future challenge would be whatever rights already exist under the Strasbourg convention and case law. Inevitably, it would be necessary to explore all this in full and to establish that baseline before the court proceeds to consider whether the UK domestic Bill enlarges upon that right.
Of course, I recognise that the position would be different in respect of any discrete rights that the UK Bill might introduce, such as specific environmental rights, or what are called socioeconomic rights, or, indeed, rights to a jury trial in certain cases. However, the introduction of those would be highly contentious and fraught with all sorts of difficulties, and in any event could be enacted entirely independently of the sort of full-blown UK Bill which I understand the majority of the commission to envisage.
What I understand to be the core justification in the eyes of the majority for restating all existing convention rights in different language in a new United Kingdom domestic Bill of Rights is what the report calls,
“the need to create greater public ownership”,
of the rights. According to the report, the majority suggest that this could be achieved if the Bill,
“was written in language which reflected the distinctive history and heritage of the countries within the United Kingdom”.
I pay tribute to the noble Lord, Lord Lester, for securing this debate, and indeed to his huge contribution over many years to the wider human rights debate. In his characteristically thoughtful personal explanatory note as to why he is prepared to join the majority view, he states:
“it calls for a restatement of civil and political rights and liberties in terms that respect our constitutional and legal heritage”.
With the best will in the world, the process that I sought to describe earlier of first having to ascertain the position under Strasbourg law and then seeing whether the claimant’s case can be advanced by reference to some additional rights under the UK Bill—I interpolate that the respondent’s rights could never be improved because there is no question of detracting from the Strasbourg rights—could never hope to persuade the public that we have somehow now come to own these rights.
The sad fact is that in whatever instruments and whatever language minority rights are enshrined, certain judgments which courts are on occasion required to give are bound to be deeply unpopular and to be misleadingly, and indeed mischievously, portrayed by some in such a way as can tend to alienate the public from the whole notion of human rights. Paragraph 82 of the report rightly refers to,
“the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media”.
Later, it quotes a witness speaking of,
“the climate of disrespect surrounding it”—
that is, the Human Rights Act—
“created and perpetuated by political and public figures and the media”.
In short, the convention, the Strasbourg court and in turn our own judges are all too often maligned. But ‘twas ever thus and regrettably it always will be. We do not, and indeed must not, outlaw unpopular minorities—prisoners, asylum seekers, immigrants and so forth—and we must not outlaw even the wicked. However, judgments in their favour often attract great hostility from the majority, and it is all too tempting for that majority, and even on occasion for government, then to blame the judges. Indeed, on one occasion in the Supreme Court I recall that we were shown Home Office minutes expressly recognising the impossibility of the Government’s position under established human rights law and yet suggesting that the Home Office should maintain its stance and,
“let the judges take the hit”.
No UK Bill of Rights is going to cure that sort of problem. Let us stay with where we have got to and try gradually to improve that situation.
I acknowledge the contribution made to the wider debate by this report, but for my part I would align myself with the minority.
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Lord Gold: My Lords, I start by thanking the noble Lord, Lord Lester, for initiating this debate. I acknowledge his tremendous contribution in the area of human rights.
The Human Rights Act was regarded as the UK’s Bill of Rights and was described as such on its introduction into law. Nevertheless, by a majority, and after referring to many difficult issues, not least relating to Northern Ireland, Scotland and Wales, the commission supported the proposal that the UK should have its own Bill of Rights.
So why are we now considering having another UK Bill of Rights? Is there something wrong with the first one? Does it go too far? Perhaps it does not go far enough. If I understand the report correctly, and as the noble Lord, Lord Lester, confirmed in opening the debate, the main reason appears to be that we are lacking right now,
“public acceptance of the legitimacy of our current human rights structures, including of the roles of the Convention and the European Court of Human Rights”.
The majority of members of the commission accept Liberty’s submission that,
“there is a lack of public understanding and ‘ownership’ of the HRA”.
These same members believe that that applies equally to the European Convention on Human Rights and the European court, so that many people feel alienated from a system they regard as European and not British. The majority also believe that public perceptions will not change even if there is better public education of the Human Rights Act and its structures. Therefore, their answer is to support the creation of a UK Bill that incorporates and builds on all the obligations prescribed by the European convention. Merris Amos, a senior lecturer at Queen Mary College, argues that,
“starting again with a UK Bill of Rights, containing identical or better human rights guarantees, might overcome these difficulties”,
“and create more of a sense of ownership amongst the general public”.
There is no evidence that that is correct. It is a hunch, and a very expensive one at that. Assuming that Parliament is persuaded by the force of this argument, before any UK Bill of Rights could be introduced it would be necessary to consult widely. We would also have to find a solution to the difficulties identified by the commission and mentioned by the noble Lord, Lord Lester, and others, notably relating to Scotland, Northern Ireland and Wales. All that will take time, will be very expensive, and inevitably will not happen before the next election.
It seems that the main complaint with the present system is that we have to pay regard to decisions made by the European Court of Human Rights in Strasbourg. It has been mentioned by several of your Lordships this afternoon. Some people see this as interference by a foreign body in domestic matters. For example, the court’s ruling on prisoner voting has angered many people, as have the difficulties experienced in seeking to deport non-citizens found guilty of serious crimes.
In the well considered paper headed Unfinished Business, written by my noble friend Lord Faulks QC and Jonathan Fisher QC, appended to the commission’s report, there is reference to the inefficiency of the court and the quality of some of the judges there, as well as to the fact that the court has so far failed to heed calls for reform. The noble Lord, Lord Lester, mentioned the need to improve matters in that court. Their answer is to support the proposal of this UK Bill, although they accept that the problems,
“posed by a judicially activist court could be resolved if effective reforms were agreed and implemented by the Council of Europe”.
The commission submitted proposals for reform of the court in an interim report issued on 28 July 2011. A meeting of the Council of Europe was held in Brighton in April 2012. Despite the UK pressing for reform, this was rejected. My noble friend Lord Faulks and Mr Fisher conclude by supporting the idea of a UK Bill and canvass the possibility of the UK leaving the convention.
I respectfully disagree. In my view, it would be a backward step for us to turn our backs on the convention. Even if we went ahead with our own Bill of Rights, it would risk giving a very bad message as to the UK’s commitment to human rights and would likely spur on the critics seeking to make capital in relation to every change of language in the UK Bill.
I believe that there should be a different approach, recognising that there has been a little progress. English judges have been moving away from the notion that they are strictly bound by the jurisprudence of the European court. While respecting the boundaries of the convention, the Human Rights Act recognises and encourages the development of independent domestic rights jurisprudence. The English courts are taking the jurisprudence of the European Court of Human Rights properly into account, but are not necessarily bound by its decisions. I believe that for the present we should make a concerted effort to win over public confidence in the European convention by making the British public more aware of what the English courts are doing. I am not persuaded that we should embark now upon the costly, time-consuming and difficult task of proceeding with a UK Bill. As I have said, I do not believe that cogent evidence is available to show that that would be better supported by the British public. Instead, and despite the considerable difficulties, which I acknowledge, we should seek again to reform the European court, as has already been proposed and attempted. The Prime Minister should add this to his agenda when he begins negotiations for wider reform.
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Baroness Kennedy of The Shaws: My Lords, I, too, thank the noble Lord, Lord Lester, for securing this debate, and I join with others in paying tribute to him for his life’s work in supporting human rights here and around the world.
The public would be right to ask the question, “Whatever happened to that commission?”, because, of course, the commission’s report was published six months ago and we have not heard very much about it since. This is perhaps best answered by the fact that the commission was really set up to answer a political
problem. Here was an issue on which the parties to the coalition were deeply divided. Some Conservatives hold strongly that the European Court of Human Rights and the European Convention on Human Rights are an abomination and that we should be putting an end to them as soon as possible. Other Conservatives may take a more sensible view. The Liberal Democrats are deeply committed to human rights and to the whole framework for securing respect for human rights throughout Europe and the world. So there was this division, this problem of hostility to the Human Rights Act and commitment to abolishing it within the Conservative Party, and, on the other hand, the commitment of the Liberal Democrats to the very opposite. That is why the commission was set up.
I pay tribute to the fact that the Liberal Democrat end of the appointment process decided to make a broad church and invited in a judge from the European Court of Justice, who is not politically aligned, myself—a member of the Labour Party who sits on these Benches—and the noble Lord, Lord Lester, an academic and practitioner. There was a broader church on the Liberal Democrat end than I think there was on the Conservative end. We gave consideration to these issues over some 18 months.
Sensible Conservatives know that the European Convention on Human Rights has nothing to do with the European Union. However, I am afraid that there is a large number of the membership of the Conservative Party who do not seem to know that. Perhaps when we talk about doing some public education, we should start there.
Secondly, many sensible Conservatives know that it was, of course, Conservatives who drafted the European Convention on Human Rights. They should feel proud of that. I listened to the noble Lord, Lord Faulks, saying that those who drafted it would be concerned about the rather activist way in which law has developed. However, I would say to him that that is the nature of law. Society changes and develops, and so it is right that courts should take account of the way in which our societies evolve. Sensible Conservatives know that it is to Britain’s global credit that we are one of the leading nations promoting human rights. To in any way sacrifice that would be folly.
It has already been referred to that Philippe Sands and I were part of a minority who did not go with the general view of the commission that there should be a commitment to a British Bill of Rights. In fact, the word British, which was used when the commission started, was abandoned when it was pointed out to those who thought this up that a British Bill of Rights would send rather unsatisfactory messages to certain parts of the United Kingdom which prefer to be referred to under the rubric, United Kingdom. We changed the title of the commission to one looking at a UK Bill of Rights.
We entered into it, as the noble and learned Lord, Lord Brown, mentioned, on the understanding that there was a baseline, which was to accept and to build upon the European Convention on Human Rights. All I would say to the noble and learned Lord is that if one takes a closer look at the publication that was produced, one will find that reference to that baseline
somehow gets lost in the writing up of the report, and that a number of people are not prepared to accept the European convention as a baseline.
Philippe Sands and I have written about this matter in a number of journals, including the London Review of Books. We started out with an open mind as to whether a UK Bill of Rights was needed and whether it was a good thing. We ended up with very strong views as to why we could not sign up to it. The main reason was that the case was not made. The evidence we took showed that, beyond the Daily Mail, the Daily Telegraph and the activist sections of the Conservative Party, up and down the country, particularly in the devolved nations, there was a great deal of support for the European Convention on Human Rights.
We also received a great deal of evidence. In fact, we had consultations on two occasions. After the first, there was the suggestion, “If you don’t like the first consultation’s answers, let’s have another one”. The second consultation reached the same conclusions: namely, that the general public, when invited to express their views, were supportive of the Human Rights Act and of being part of this greater fabric across Europe of protecting human rights.
We also took the view that we could not support this because the timing was absurd. A decision had just been made to have a referendum in Scotland on whether there should be independence for Scotland. To be rocking the boat and talking about, first, a British Bill of Rights, and then a UK Bill of Rights, did not seem an appropriate or sensible thing to be doing at this moment. Indeed, dependent on the outcome of that referendum, it may be that we will embark on a set of constitutional changes that would involve us having to look at all our arrangements. That might be a time when we could look at this again. It certainly is not timely at the moment.
The third matter for us was that there was very little thinking of the long-term implications constitutionally or, indeed, legally—as has been described so powerfully by the noble and learned Lord, Lord Brown—and of what it would mean for judges trying to interpret the law. We also felt very strongly, as the noble Lord, Lord Gold, powerfully explained, about how this would be seen around the world and read internationally.
I emphasise that as the commission continued with its deliberations, we became aware of the real motivations of some of our number: namely, that they feel so strongly about being part of the European system protecting human rights that they want to remove themselves from the European Court of Human Rights and the European convention, and that creating a British or UK Bill of Rights is a Trojan horse in order to have something in place in order to decouple from Europe.
Arguments were made about this being a rebranding exercise and that a new UK-type Bill of Rights would explain to the public better in language that they would know that it was nothing to do with Europe and was all about us. We were not persuaded that that was necessary. One only has to read a wonderful report from the British Academy on this subject to see why this is not an avenue down which we should go.
It was a convenient means to reduce rights, and a way of casting off Europe and returning to some delusional idyll of an earlier age of sovereign authority, unconstrained by obligations set out in international instruments. That was behind some of the motivations. We did not want to be party to that and lend our name to a document that was not going to be declaring its purposes as openly as it should.
The fault lines in the commission were real and deep. They related to the failure to grapple with the content of such a Bill and with what its real purposes were. The underlying desire was to decouple the United Kingdom from the European convention and the jurisprudence of the European Court. We were not prepared to go along with it. We see no benefit in creating a superficial consensus, which was why we made our separate entry in the report. We were also concerned that there was not enough emphasis on the benefits of the European convention. These benefits are important for Europe as a whole and for the United Kingdom. Individuals in 47 states can now take challenges to abuses of public power to an international court in Strasbourg. We should feel proud of being part of that.
At home, the convention has brought great benefits. For example, it has reinforced our commitment to due process in court proceedings. It has advanced children’s rights and the rights of the elderly in care homes. It has advanced freedom of expression and assembly, and protected individuals from unfair extradition. Perhaps most powerfully, it has reinforced the ban on torture and served as a source of international inspiration, which again are things that we should be so proud of.
We should keep in mind the way in which disregard of judgments flies in the face of the rule of law. For our Government to be talking about doing that is shameful. In the business, for example, of prisoners’ voting rights, the margin of appreciation meant that that could have been dealt with easily by providing the right to a postal vote to those on very short sentences. That would have satisfied honour in the European Court, but it is not how it is presented to the public in our tabloid press.
This is about a set of attitudes. At the heart of the differences on the commission were distinct beliefs about the reach and purposes of human rights. We were very separate. It was about the relationship between matters local, national and international. A UK Bill of Rights may seem harmless on the face of it and attractive at first sight, but alarm bells should be ringing for everybody who cares about human rights. For us, human rights are about working not just within our own country but with other countries to improve the human condition, engender respect for all individuals, protect those who are vulnerable and create the conditions for the delivery of justice and peace internationally.
To remove the glue that holds us together with other nations is dangerous. Our criticisms of the European Court should galvanise us to reform it, not cut ourselves off from it. I would say to the Liberal Democrats that the lesson for them is that there are some areas where you cannot do business with the Conservatives without
selling your souls. That is what this commission has taught you. The message to you must be: here is the big divide. It should be the message to our nation as a whole. Human rights matter. They matter to all of us. Even to contemplate decoupling from this important way in which we join with Europe and the world in protecting human rights would be folly in the extreme. That was why Philippe Sands and I proudly distinguished ourselves from the rest of the commission. You cannot sign up for this, because it is about diminishing rights for the people who need them most.
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Lord Woolf: My Lords, I too warmly congratulate the noble Lord, Lord Lester, on his wisdom in selecting this subject for debate. I also acknowledge the contribution he has made to the development of human rights principles in this jurisdiction. He has been indefatigable in his efforts. He is part of the explanation for why we are in a situation today where the human rights principles that we have developed in this country are working reasonably satisfactorily, although there are undoubtedly problems.
It is a testimony to the noble Lord’s efforts that I can remember well the time when, appearing as an advocate and not in his role today, he educated the judiciary of this country as to the approach to human rights, which was not in accord with the way we traditionally used to approach legislation in particular. This was true of his advocacy in the highest court in the land, which, of course, at that time was part of this House.
I congratulate the commission on the report it has produced. It has been the subject of criticism by some but I venture to say that that criticism was not meant to detract from the fact that the commission is exemplary in the way it has conducted the process of consultation. It is also exemplary in the way that it has clearly explained the different opinions that its members hold and the way in which the issues are regarded by different parts of the community.
I have found it very difficult to decide whether I should agree with the majority opinion or the minority opinion and I am glad to say that today’s excellent debate has helped me in that matter. The report sets out the arguments against and in favour very clearly, but to hear them debated in the House in this way brings a new realism to me which I did not have before.
I see a situation where, excellent though the commission’s work is, there are serious dangers in approaching the matter in the way the majority have indicated in the report. That does not mean that the work of the report has been wasted. On the contrary, it is very important that the position of human rights is elevated into proper public debate. In saying that, I am not referring to some of the debate that takes place in the media for understandable reasons.
It is important, however, that the thinking public have an opportunity to see where the truth lies. I am not surprised that the attempts, when they are made, to assess the public’s opinion show that the position is rather different than a reading of the media, popular or otherwise, might lead you to believe. As often
happens, the public are not so foolish as to think that a new Bill of Rights could achieve a position where we could disregard the European Convention on Human Rights, to which this country has adhered as far back as 1950.
It is important to understand that human rights are different from rights set out in ordinary legislation. They are fundamental to the way of life of this country—indeed, I would go so far as to say of all countries that purport to or do adhere to the rule of law. What is special about the rule of law is that when it talks of that subject it is, in my understanding, talking about those rules which should govern societies in general. The way they are applied and interpreted in different jurisdictions does not mean that they are better observed in one jurisdiction than another or less observed in one country than another. The rule of law requires that a society adheres to basic principles—principles which are the source of the European convention and many other conventions. They are the source of justice, the source of fairness, the source of proportionality and the source of many other matters that make our society one that up to now has been respected in many parts of the globe.
I have had the good fortune to be called upon to make two reports in regard to the European Court of Human Rights and can say I am fairly familiar with the standards it has adopted. This country, together with the Council of Europe, invited me to make a report when I ceased to be Lord Chief Justice, one of the first activities I had at that stage. In the course of it I interviewed individually most of the judges on that court, looked at various procedures and was well aware of the huge backlog of cases that they had. I found that the more I talked to those judges, the more impressed I became. I was convinced that they were concerned about the same things with regard to justice that I would expect a British or United Kingdom judge to be concerned about. Within the confines of a system they were called upon to administer, they did their very best to achieve the results which they were required to achieve in order to honour the principles set out in the European convention. Of course some of the decisions would be popular and some unpopular. I am afraid that that is true of a judge’s job. It has certainly been true of my period as a judge, when some of the decisions I made were extremely unpopular.
Lord Spicer: The noble and learned Lord is talking about basic principles. Does he have on or off his list retrospection as practised by the legal profession during the expenses affair in the Commons?
Lord Woolf: I am afraid I find it difficult to fit that in with what I am going to say as it is not on my agenda this afternoon. I hope the noble Lord will forgive me if I do not try to deal with that although I can see why he raises the matter. The issue of those expenses and the way they were dealt with—the principles of general fairness, honesty and integrity—are the sort of matters which human rights can reflect.
Taking up where I left off, the recommendations which I made on that first occasion were adopted by the European Court which did its best to do what it could with them. The second commission—and bearing
in mind that I was on it, it was probably misappropriately described as the commission of the wise men—consisted of 10 people from different jurisdictions. I mention it to declare an interest, but more importantly to point out that although those 10 members were drawn from different nations, they all struggled to work together to produce results that would be beneficial to the court. They could not complete their task in so far as they were not in a position to provide an answer to all the problems. Those problems remain although they have been helped by what happened in Brighton recently and the declaration made there. The important point is that, despite the load of problems that the court has, the situation is better today than it has been for a long time.
I listened with great care to what the noble Lord, Lord Faulks, said about cost. I wish to mention two things. The judges to whom I talked in that court were at one in saying that the very best advocates who came before it were drawn from the United Kingdom legal profession. They were unstinting in their praise of our advocates who they said were so good at understanding the real core of human rights. However, they added that the cost of those advocates was totally disproportionate when compared with that of advocates drawn from other jurisdictions. Indeed, our advocates, of whom we are proud, are 10 times more expensive. Therefore, we need to be rather sensitive about criticising other countries’ costs.
We also have to be cautious about criticising the costs of the European Court, which deals with cases very economically. It is the quantity of cases that generates the costs. I have not done it but if you were to work out the cost of a case before a court here and the court in Strasbourg, I am afraid that it would reflect adversely on this jurisdiction. That is why we are introducing new methods of tackling costs in this jurisdiction because, unfortunately, our costs are so large. Therefore, I do not see that we can justify criticising the European Court on the ground of cost.
I apologise but I want to say one or two words more. If your Lordships will bear with me, I will deal with them as quickly as I can. My belief is that we must work towards obtaining the public’s confidence. The only argument in favour of a British Bill of Rights is that it would improve the public’s confidence in this area. If we do not succeed in doing that, the future of human rights in this country will be at risk. It is at risk at the moment and we must do everything which is practical and possible to ensure that the British public take possession of human rights and regard them as singling this country out as being pre-eminent on issues of fairness and justice. If they recognise that this is a relevant issue, this country has hope for the future. If they do not, this country is very much at risk of relinquishing its legal excellence.
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Lord Judd: My Lords, as one who was at school with the noble Lord, Lord Lester, I can share with this House the fact that there was absolutely no doubt whatever among his contemporaries as students, or indeed the staff at the time, that he was going to make a powerful contribution to the future of this country.
The fact that he has made it in the context of the realm of human rights is something from which a lot of us take a great deal of joy and satisfaction.
I have just indicated and underlined my age. At the age of 13, my father took me with him to an international conference he was organising in Geneva. At that conference, I had the privilege of meeting Eleanor Roosevelt and I had the pleasure of listening to Eleanor Roosevelt. As I listened to this debate and the anxieties that have been expressed, I reflect on the huge gap between life as it is today and life as it was in the immediate aftermath of the Second World War. There was a passionate conviction which gave her her strength and power, together with all those working with her, that human rights were not just a moral option in the way you organised your society. With all the searing experience of the human suffering of the Second World War, human rights were an absolutely essential and indispensable pillar of a stable and secure society. We have somehow lost that underlying basic philosophy and conviction. Discussion is all about the management of human rights, the operation of human rights law and the rest. We cannot repeat that conviction too often.
If I am allowed to draw on personal experience, as someone who has no legal qualifications whatever, but as somebody who has spent most of his life working in the humanitarian sphere outside this House, I can say that pretty well every month of every year in my practical work, I have seen again and again the crucial importance of human rights to the cause of improving the well-being and potential of our fellow human beings across the world.
I declare an interest as a member of the advisory board of the London School of Economics Centre for the Study of Human Rights. I think, and I say this sometimes at meetings of the board, that we have to take seriously the criticism that is sometimes loosely used about the human rights industry. To some people, there is a perception which we have to examine that there is a human rights industry—the chance of academic prowess and postgraduate degrees, a preoccupation with much legal discussion about it all, and the rest. It seems to me that we need to reconnect—that has come across in this debate very well—the whole cause and indispensability of human rights to real experiences and the real lives of people. That is an argument for a Bill of Rights which cannot just be dismissed. As I understand it as a layman, the strength of law at its best is when it underpins an ethic which is broadly there in society. It will never bring everybody on board, but an ethic is substantially there among people instinctively that this is the kind of society in which they want to live. This law underpins that reality and helps those who want to distort or abuse it to be dealt with.
It seems to me that a gap has developed here because people do not feel they own human rights law. They see people, as it were, operating downstream in the context of the human rights law that has been created. It is very important to go back to source and reargue the case for human rights and their indispensability. We have to look at that, of course, in the context of our educational system and elsewhere, and look at how seriously we are taking discussion
and debate about human rights, and why they are so important, in our educational system. As the noble Lord, Lord Lester, will remember, we were both involved in the Council for Education in World Citizenship in those days. It was a very lively body of sixth-formers across the country with the whole cause of preparing for citizenship. Taking these things seriously was central to our preoccupations. The Christmas holiday lectures were packed. I am talking about the enthusiasm, commitment and integrity of someone such as Eleanor Roosevelt and the passion that she brought to this because of her experience of the war years.
I apologise if I am reminiscing too much, but this is important because these were the formative years. I recall that, slightly precociously, we had a youth parliament in the constituency in which I lived as a youngster. In that youth parliament, by our own choice, we took the Universal Declaration of Human Rights and set about deciding and discussing how we would put it into action in our own society. These things were vivid in the culture at the time. There has been a certain amount of subjective interpretation about history, even in this debate. I can remember that there were Conservatives then who shared this concern and passion every bit as strongly as I did as a member of the Labour League of Youth. As the noble and learned Lord, Lord Woolf, emphasised, there seems to be a real need to regenerate this cause of human rights and to highlight their indispensability for society.
There is another issue. If I have come to one conclusion in the course of my life, it is that the first reality for all of us is that, from the day we are born, we live in a totally interdependent global community. I worry about any action on our part in this country that undermines that understanding and reality. It seems very important, in a realm as crucial as human rights, that we have objectives, aspirations and convictions towards which we try to encourage all our fellow citizens across the world community to strive. If we start a process which begins to suggest that human rights are things that you look at in a national context and put first into your national culture, I wonder how far we are helping the world to face up to this reality of interdependence and making a really constructive and imaginative contribution to the emergence of a better society and better values.
The noble and learned Lord, Lord Woolf, talked about the rule of law and its importance. As a layman, I know that I want to live in a society which observes the rule of law. However, there is a huge debate about what that law should be. It seems to me that what we are all seeking is justice. What matters is howwestrengthen the debate about what justice is and how justice should be reflected in the law—it is not just about having a rule of law, it is about ensuring that the rule of law reflects the cause of justice, of which human rights are a part. Sometimes I wonder whether we have to use the term “human rights”—which has become so stereotyped—and to what extent we are really not just talking about justice.
I am afraid that you cannot look at this debate, and the possibilities for change, without examining the context of the dynamic in which it takes place. It would certainly be very naive to try to do that. If I am
allowed to make so bold, noble Lords in this debate have been a little cautious about facing up to some of the crude realities here. I wonder whether people in years to come will see it as altogether a coincidence that, at a time when we have the reassertion of rather crude and unpleasant nationalist populism, there is debate about whether we could have a Bill of Rights for Britain.
Are the dynamics surrounding that exercise going to be about justice and the cause of humanity, and how far are they going to be about “Let us run Britain in a British way”—whatever we mean by Britain and a British way—with which everyone is expected to conform but which does not necessarily represent the realities of our society and the creative potential of our society as a multicultural society? This is a huge debate and we should not drift into it inadvertently. Debates like this are absolutely indispensable and I thank the noble Lord for having initiated it.
It has been a privilege for me to listen to so many wise speeches. I am a great friend and ally of my noble friend Lady Kennedy. I hope she will forgive me saying that I was not really very happy with her seeming to imply that there were no Conservatives who care about human rights and the things I have been talking about every bit as much as I do. In the noble Lord, Lord Gold, we have a classic example of a Conservative who not only feels these things but feels them so sincerely and deeply that he can express himself very well in a debate of this kind, in a way that is quite challenging to a lot of other people.
Baroness Kennedy of The Shaws: That cannot go unchallenged. I think that my noble and very dear friend Lord Judd, when he sees my remarks in Hansard,will see that I referred all the way through to the sensible Conservatives who recognise the value of human rights and realise that they are different from the European Union. I paid tribute to them all, and indeed paid tribute to the noble Lord, Lord Gold.
Lord Judd: My Lords, I am sure that the noble Baroness and I will continue this discussion in many places for long weeks ahead because we are very good friends. I certainly accept her qualification about the words she used. She also suggested rather that it was the Conservative Party with which it was impossible to do business. The society I want to live in by definition is one in which the Conservative Party is as committed to the things I am talking about as anybody else. We should be strengthening the elements within the Conservative Party who share our convictions and speeding the day when we can all speak together. Again, I say we should all be grateful to the noble Lord, Lord Lester.
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Lord Bach: My Lords, I thank all noble Lords who have spoken in this debate, particularly, of course, the noble Lord, Lord Lester, for securing the debate and for attracting a stellar cast to speak, even rather late on a Thursday afternoon in the middle of June. I am certainly not one of those stars. I have comparatively little history, either as lawyer or politician, with regard to the Human Rights Act or the convention.
However, it is an honour for me to speak from the opposition Front Bench on this occasion and I, too, pay tribute to the noble Lord, Lord Lester, for his well deserved reputation, mentioned by many noble Lords, in this field.
I start with a quotation from another memorable debate in your Lordships’ House, held exactly 25 months ago on 19 May 2011, when my noble and learned friend Lord Irvine of Lairg led a debate on the ECHR, with many of the same cast as today, and answered, as today, by the noble Lord, Lord McNally. The noble Lord, Lord Thomas of Gresford, ended his contribution with these words:
“I consider the Human Rights Act 1998 to be the outstanding piece of legislation of the previous Labour Government”.
He went on to say, and we must give him allowance for this,
“next to the Government of Wales Act 1998. I congratulate the noble and learned Lord, Lord Irvine of Lairg, not simply on introducing the debate but on being the architect of an important piece in the structure of justice in our country”.—[
Official Report
, 19/5/11; col. 1501.]
That was a generous but well merited comment from the noble Lord, and a well merited compliment to my noble and learned friend as well.
This year marks the 25th anniversary of the establishment of Charter 88, many of the aspirations of which were adopted by my party in the early 1990s and then put into effect by the Government from 1997 on. Who says that pressure groups cannot achieve results? According to Professor Bogdanor the constitutional achievements of the Labour Government, ranging from the Human Rights Act to devolution, freedom of information, the creation of the Supreme Court, and much more, represent a formidable list. He may go too far when he says that it was an era of constitutional reform comparable to that of the years of the Great Reform Act 1832 or the Parliament Act 1911. However, even more impressive is the amount of power that was given away by some of these measures by that Labour Government. For example, the Human Rights Act gave power to individuals, the national states were given power by devolution and the judiciary was given power by the difference between the role of the Lord Chief Justice and that of the Lord Chancellor and by the creation of the Supreme Court. Professor Bogdanor went on to say that no British Government since World War II had dispersed power to the same extent.
Speaking from the Opposition Front Bench, I am proud of that record. It made our country a fairer, more open and better place to live. We were supported in all this—certainly for the most part—both in argument and votes by the Minister’s party, the Liberal Democrats. Both party manifestos for the 2010 general election talked about support for the Human Rights Act; the Liberal Democrats’ manifesto talked about protecting the Human Rights Act. It is therefore hardly surprising that when the Liberal Democrats found themselves in a coalition Government they had to think hard and quickly about how to prevent the Human Rights Act and the ECHR behind it being savaged by their coalition partner during the course of this Parliament.
Make no mistake: both before 2010 and since being in power, of course not all Conservatives but many of their leaders have regularly and systematically tried to trash both the convention and the Human Rights Act. They have often used language—perhaps sometimes to placate their anti-European supporters—that has sometimes, though not always, been a disgrace to a great party.
Rather unusually for me, I will pay a compliment to Liberal Democrat Ministers in this Government, and not least—in fact, probably for the most part—to the noble Lord, Lord McNally, for the manner in which he, along with others, has successfully prevented the Conservatives from carrying out constitutional mayhem during this Parliament. I do not know whose idea a commission on the Bill of Rights originally was, and who put together the personnel. However, if the aim was to kick these proposals deep into the long grass, it appears to have succeeded.
I pay tribute to all members and staff of the commission, particularly its chairman, for giving up so much of their valuable time to its work. Many of its members were busy and distinguished Queen’s Counsel, while others had other important obligations. They deserve our thanks; not least the chairman, who has already been described in Job-like terms and whose distinguished career in public service must have helped him in an almost impossible task. However—and I suspect that the House might have expected a “however” at this stage—it is surely fair to ask whether it was really worth all the time and effort to produce two large volumes of a report in effect to solve a political problem?
Where do the various and myriad conclusions lead us? What is the value of the so-called majority view, when it includes a number who clearly and honestly objected to the terms of reference and want us to be free of the convention? I admit that I do not completely understand the position of the noble Lord, Lord Lester, who is himself one of the architects of the Human Rights Act. When reading the 31—
Lord Lester of Herne Hill: I am grateful to the noble Lord. I wonder whether he agrees that it is core Labour Party policy since 1993 that a Human Rights Act is the first step, and a Bill of Rights the second. That was agreed by Labour in 1993, and as far as I am aware it is still Labour Party policy.
Lord Bach: As I understand it, the Human Rights Act is considered by some to be a British Bill of Rights in any event. However, I do not want to take issue with the noble Lord. I am here to praise him rather than criticise him. As I was going to say, when reading the 31 pages of the overview of volume 1, one can almost physically feel the strain in the language as it attempts desperately to find consensus where there is none. The majority view has been described as representing,
“a fragile coalition of views united around conceptions of a domestic Bill of Rights so different from one another as to render any consensus wholly illusory”.
These are the words of Mark Elliott, a reader in politics at the University of Cambridge, whose article is entitled, A Damp Squib in the Long Grass. This is perhaps a little harsh, but I think one senses what he is
getting at. No wonder Professor Fenwick at the University of Durham described the document, perhaps rather generously, as “odd”. For me, the paper
In Defence of Rights
, by my noble friend Lady Kennedy and Professor Sands, is more persuasive. It destroys the confused majority view with a pretty well argued, moderate and sensible position.
The commission report has of course effectively stymied any change until after the 2015 general election. It is only when we know the result of that election and what will follow from it that we can realistically move forward. I would expect the Liberal Democrats to be every bit as robust in their defence of the Human Rights Act as I hope my party will also be.
I want to end on a perhaps rather less consensual note. I am afraid that the Liberal Democrats’ effective defence of the Human Rights Act and the convention is in marked contrast to the feebleness and lack of concern for the individual citizen evident in their acquiescence to—and sometimes even welcome for—some of the more reactionary measures that Her Majesty’s Government have recently taken. I of course refer to the restrictions either passed or proposed on judicial review, the no-win no-fee policy, and the position that private firms doing public work on public contracts may be exempt from freedom of information. Above all, I must say, it is evident in the decimation of social welfare law by taking it outside the scope of legal aid. It is no answer to say that citizens are still able in theory to go to law, because the reality is that without free legal advice, the poor and the marginalised in practice cannot go to law. Human rights exist outside the Human Rights Act. By limiting and restricting the ability of the citizen to take on the state, the Liberal Democrats are colluding in particularly anti-liberal acts.
I conclude by saying to the Minister that he has nobly protected the Human Rights Act in very difficult circumstances and that his part of the Government deserves great credit for that. Now is the time to protect the interests of individual citizens who need to take on the state. They, too, like those protected by the Human Rights Act, are an essential part of those who live in a free society.
4.20 pm
The Minister of State, Ministry of Justice (Lord McNally): My Lords, they say that they never come back, and yet there is the noble Lord, Lord Bach, back on the Front Bench in fine, feisty form, taking on a kind of Dame Nellie Melba role in the number of questions that he asks. He has also tabled a Question for me to answer in a few days’ time. The rather emotional goodbyes that I bid him a few months ago were perhaps premature. Although some of his closing themes were familiar from our debates over the past two years, I shall not follow him down that path, because we will have other opportunities to do so.
I was grateful for the tribute that the noble Lord paid to the Cook-Maclennan reforms. Certainly, the success of that first Labour Government from 1997 to 2001 owed very much, as my noble friend Lord Lester said, to that blueprint setting out much of the constitutional reform during that period. I believe that
when future historians come to review that period, they will agree that that burst of quite extraordinary reform started to peter out only when the Government departed from the Cook-Maclennan blueprint and began increasingly to rely on ideas usually prepared on the back of an envelope by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Prescott.
This has been an excellent debate. The noble and learned Lord, Lord Goldsmith—the late Lord Goldsmith—posed the question, “Which human rights are you planning to repeal?”. It is a legitimate question to ask those who seek change. The debate was made all the healthier by the noble Lord, Lord Faulks, who produced with characteristic clarity what I would call the case for the prosecution. He asked specifically whether membership of the EU and membership of the European Convention on Human Rights were compatible—whether we could withdraw from one without affecting our membership of the other—particularly given the ECHR case to which he referred. My officials advise me that this is a moot point. I find it to be an extraordinarily moot point, because I have always understood that one of the qualifications for membership of the EU was observance of the European Convention on Human Rights.
In recent years, I have had the opportunity to visit a number of countries that, in working towards membership of the European Union, have been set high hurdles by the EU in terms of human rights observance. One of the great triumphs of the EU is how, by insisting on those high hurdles, it has moved human rights eastwards across Europe. On 1 July, we celebrate the latest addition to the European Union, Croatia. After a terrible war, it has been the European Union and its insistence on high standards in the rule of law that have prepared Croatia for its rightful place in the European family, a family that is resting on the ECHR.
I understand the points about how human rights have suffered by appearing to delve into trivialities. However, as a number of speakers have pointed out, the media often attribute to human rights reasoning and causes that have nothing to do with the actual Human Rights Act. This is rather like health and safety and data protection legislation, which I also support. When the media talk about a pancake race that has been cancelled by health and safety rules, I like to count the number of deaths that have been prevented on building sites by those rules. That is when these rules bite. Similarly, we only have to open the newspaper every day to realise how important data protection rules are in a modern society.
I welcomed the spirited exposition of the noble Lord, Lord Faulks, which stimulated responses in others, and I will try to cover a number of the issues that were raised. I was extremely grateful for the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because he counterpointed the noble Lord, Lord Faulks, in warning us of the complexities of trying to write a UK Bill of Rights. There is always a danger that, if you make a speech that is slightly out of step with your party, everybody else praises you, so I hope that it does not do the career of the noble Lord, Lord Gold, too much damage to say that I found his intervention extremely
helpful with its warning of a backward step and reference to the problem of public understanding.
The noble Lord, Lord Bach, and the noble Baroness, Lady Kennedy, both seemed to imply that there was some secret about the origins of the Bill of Rights commission. This Government were formed as a coalition between two parties that have, in recent years, taken a different view about the Human Rights Act and the part that the European Court in Strasbourg, and the European Convention on Human Rights it interprets, should play in our national law. The response of the new coalition Government was twofold. We established the commission, of which the noble Lord, Lord Lester, was a distinguished member, as was the noble Baroness, Lady Kennedy, and the noble Lord, Lord Faulks, and we embarked on a programme of reform of the Strasbourg court that culminated in the Brighton declaration.
I have also said that I do not consider the Human Rights Act to be a precious vase, to be kept on a high shelf, never to be taken down or examined for fear of breaking it. I agree with the noble and learned Lord, Lord Woolf, that well informed debate about human rights is extremely healthy. I welcome, particularly in this House, our periodic examination of human rights and their place in our society—the noble Lord, Lord Bach, referred to the one such review led by the noble and learned Lord, Lord Irvine of Lairg, a couple of years ago.
I hope that the House will keep on returning to this subject, because, like the noble and learned Lord, Lord Woolf, I remain confident that such an examination invariably concludes with a reaffirmation of human rights as something deep in the political DNA of the British people and of our history. The noble Lord, Lord Lester, reminded us of the relevance of Magna Carta, the 800th anniversary of which we celebrate in 2015. That linkage between our history and the growth of the concept of human rights was underlined, as the noble Lord, Lord Judd, reminded us, when Eleanor Roosevelt launched the UN Declaration of Human Rights and called it a,
“Magna Carta for all mankind”.
The world needed no explanation of what she meant. She was part of that “never again” generation who had experienced the horrors of when state power goes unchecked and human rights are subjugated to the power of the state or some perverted political doctrine. The noble Lord, Lord Judd, is right: that generation, whether it be the noble Lord, Lord Healey, or Ted Heath, or others who came back from that war, had a “never again” determination that impacted on the legislation that they brought forward and the themes that they espoused.
Let us be clear that human rights and civil liberties are not some foreign invention. They are deeply rooted in the history of the people of this country. Upholding them should be a source of national pride. As the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Gold, pointed out, too many people do not fully comprehend the impact of human rights on their daily lives, and myths and misreporting about human rights are often accepted as fact. If we look beyond the sometimes skewed perceptions, we see that the Act is a measured piece of legislation when understood
and used properly. The noble Baroness, Lady Kennedy, cited some very good examples of human rights in action and I could give others. As the noble Lord, Lord Faulks, said, human rights are not a matter of abstractions; they are about realities. It is not an airy-fairy notion reserved for philosophy seminars but the practical interaction between the state and its agencies and those they should serve.
The message from this debate is that it is your human rights, my human rights, our human rights. Perhaps that could be no better illustrated than by the fact that, when the Daily Mail felt that it was under attack by Lord Justice Leveson, the editor cited his human rights in protection. For me, it proved that there must be a God.
While reflecting on judgments, we should note our actual Strasbourg record. As the noble Lord, Lord Lester, reminded us, the number of applications involving the UK that resulted in a judgment by the European Court of Human Rights is small. In 2012, there were only 10 judgments finding violations against the United Kingdom out of over 3,300 applications. Our record on implementation of judgments is generally good: from March 2010 to May 2013, the United Kingdom completed the implementation of 82 judgments, with just 22 outstanding. One highlight of my ministerial career was when, in May 2012, I sat in front of the United Nations Human Rights Council in Geneva being held to account for the UK’s human rights record.
The UPR mechanism offers the Government real opportunities to consult civil society organisations and our national human rights institutions. Through open discussion with them, we build an understanding of where we should focus our efforts on key human rights issues; this dialogue allows them to monitor our progress. We have also gone digital. On top of stakeholder events, everyone now can send us online submissions via our website. All this ensures that we remain connected to, and aware of, human rights issues as they affect real people. We aim to use the information gathered from our engagement with civil society and through online submissions to help to shape how we respond to the United Nations in our mid-term review next summer. This approach pays dividends in engaging people in human rights. It helps us to focus our efforts and enables civil society to monitor our progress. Generally, our approach to the review was one of openness, celebrating success where we can but being receptive to challenge. We have had very positive feedback from civil society organisations in the UK on our engagement strategy.
Also in May, the United Kingdom was examined against our obligations under the United Nations Convention Against Torture. We will consider the recommendations carefully before responding. That was a point made by the noble Lord, Lord Faulks. It is not just a matter of the ECHR. In a world of interdependability, we are part of a whole range of conventions and commitments, by which we test Governments’ behaviour.
As I said, undergoing such scrutiny is necessary and proper to ensure that the United Kingdom is fulfilling its obligations under the Human Rights Act and that
the Act itself is fit for purpose. It was with this in mind that the Government put forward plans for the Commission on a Bill of Rights. On behalf of the Government, I express thanks once again for the dedicated work of all those associated with the commission, culminating in the publication of its final report. Like others, I pay particular tribute to Sir Leigh Lewis, as chairman of that commission. My view is that the only job that he is otherwise qualified for is leading the Liberal Democrats in the House of Lords, because he has all the same attributes, as we have seen today—he had some fairly big personalities to keep in check.
I remind the House of some of the commission’s key conclusions. A majority of the commission concluded that there is a strong argument in favour of a UK Bill of Rights. However, that was on the basis that any such Bill would need to incorporate and build on all the UK’s existing obligations under the European Convention on Human Rights and that it would provide no less protection than is currently contained both in the Human Rights Act and in the devolution settlements. Both the noble and learned Lord, Lord Brown, and my noble friend Lord Gold made powerful arguments about whether that was the right way forward. This finding was in line with the commission’s terms of reference. The majority saw the current lack of public ownership of the Human Rights Act and the European Convention on Human Rights as the most compelling reason in favour of a new Bill of Rights. However, as my noble friend Lord Gold reminded us, even if it were to be carried through, it might not solve this problem of public understanding and acceptance.
Some of those in the majority who favoured a Bill of Rights felt that any new Bill could usefully define the scope of some rights more clearly and adjust their balance. However, as the noble Baroness, Lady Kennedy, has told us, she and Philippe Sands concluded that the commission’s consultations and its deliberations had failed to identify any real shortcomings either in the existing Human Rights Act or in the way in which it is applied to the domestic courts. They were concerned that any move towards a Bill of Rights would lessen the rights protection that is currently available and would potentially be a first step towards the United Kingdom withdrawing from the European Convention on Human Rights.
Although the commission was unable to reach agreement on all its conclusions, it identified and reported issues that would need careful consideration before any changes were made to the UK’s legal framework for human rights. I disagree with the noble Lord, Lord Bach, and some of the distinguished academics. I think that any political party looking forward and working on its policy on this issue, and any Parliament looking at it, will find the commission’s work an exercise in ground-clearing and testing of arguments that will stand us in good stead for the future.
My noble friend Lord Maclennan reminded us, as did the commission, of the background against which this discussion is taking place. Next year we will definitely have to make a very clear decision about the future of this United Kingdom. The evidence showed—and there was unanimity on this—that to discuss any
changes to the Human Rights Act before we have made that fundamental decision about the union would not be very sensible or constructive.
It is interesting to note in passing that, although we think that perhaps the other place is more hostile and more populist, when a 10-minute rule Bill to repeal the Human Rights Act was put forward in the other place by Richard Bacon MP last December, it was defeated by 195 votes to 75. I just do not believe it is true that there is some great populist seething hostility to the Act. I think the more that people understand it and the more it is put to them in positive terms, the more support there is for it.
My noble friend Lord Maclennan and the noble and learned Lord, Lord Woolf, both mentioned the Brighton declaration. I am very proud of what we did at Brighton—I think that we addressed some very real problems. The noble and learned Lord, Lord Woolf, mentioned his own work in suggesting ways in which the effectiveness and efficiency of the court could be improved. I hope that there is good news for him. Better late than never, at the recent meeting in Strasbourg the court accepted a number of the recommendations in the noble and learned Lord’s report. I would not presume to suggest that the legal system sometimes moves very slowly, but it gets there in the end. On Monday, our ambassador in Strasbourg will, on behalf of the UK, sign Protocol 15 to the convention, which implements the amendments to the convention agreed in the Brighton declaration. We are continuing to press for reforms of the Strasbourg court in a way that we think will give it better credibility and lead to greater efficiency. However, I entirely share the opinion of the noble and learned Lord, Lord Woolf, that this is a matter where we can achieve change and improvement, although this is work in progress.
Looking forward, as I said, I do not believe that this Government or this country have anything to apologise for in their record on upholding human rights. Nor do I think that at heart there is fundamental disagreement on the need to uphold human rights and the rule of law. I tend to agree with the noble Lord, Lord Judd: I do not want to pin party labels on this matter. We have, as I said, concepts of human rights that are rooted deep in our history and deep in our national psyche. Let us not be afraid of debating human rights with vigour and candour. However, let us do so in a way that also takes account of the very real leadership role that we play in this area. The world does look and listen when we debate these issues, so let us be sure that we are sending it the right messages.
I applaud the way in which the Foreign Secretary has used soft diplomacy and consistency of message to promote and support human rights around the world. Both my noble friend Lord Faulks and the noble and learned Lord, Lord Goldsmith, referred to the fact that we carry weight and influence in these matters. The Foreign Secretary can promote human rights because our own reputation for observing and promoting human rights still stands high. However, observing and upholding human rights is always work in progress.
In his closing remarks, my noble friend Lord Lester referred to the 800th anniversary of Magna Carta in 2015. Although she is not in her place at the moment,
a few weeks ago the noble Baroness, Lady Ramsay, reminded me of something that was a surprise to me. Those gentlemen up there who look down on our deliberations are the Barons of Runnymede. They remind us of the 800-year journey that this country has taken in setting limits to the power of the state and the responsibility that we all bear to uphold what the late Lord Bingham referred to as the spirit of Magna Carta. I think that that is what we have been doing today and I thank my noble friend Lord Lester and all noble Lords who have taken part in what has been a debate of great quality in the best traditions of this House.
I am extremely proud to be the Human Rights Minister in this Government. I work very closely with my colleague Damian Green on this matter. This has been a healthy debate. I suspect that the next stage of it, as far as any legislation is concerned, will depend on the outcome of the next general election—it will be incumbent on all the political parties to take their views on the Human Rights Act and its future to the hustings. I think that I know where we will be and I look forward to this ongoing debate.
4.44 pm
Lord Lester of Herne Hill: My Lords, it is customary to thank all speakers who have taken part in a debate of this kind. I must say that I found this a most remarkable debate that will be read abroad as well as in this country. It will be remembered, I am sure, in the future, as will the report of this commission.
For me, one of the most ingenious excuses for arriving late, on which I congratulate the noble and learned Lord, Lord Goldsmith, was that it did not matter because he knew exactly what I was going to say as he had heard it all before. Alas, that is probably true. I worked for 30 years to accomplish the Human Rights Act and I am hardly likely to be one of those who would advocate tearing it up.
However, I will ask the conservatives, with a small “c”, in this debate—which was most noble Lords, I think, except the noble Lord, Lord Judd—to think about one thing. We are the only country, among the 47, that uses a European treaty rather than a domestic constitutional instrument to protect our basic rights and freedoms. For us the question is, is something incompatible with the European treaty? For the rest of Europe and most of the Commonwealth, the question is, is this incompatible with our constitutional rights? The question that the report poses, and that has been debated this afternoon, is whether we command more public confidence by relying on the European treaty, or whether, as the Labour Party agreed in 1993, the first step should be incorporating the convention by statute, but that that should be followed by the second step of a constitutional instrument? As I think everyone has said, that question can only be answered after the Scottish referendum. I hope that in June 2015, two years from now, when we mark the anniversary of Magna Carta and its Scottish equivalent, we will strive to ensure that it will be an occasion to celebrate what has been achieved and to build on those achievements, not to weaken them. I am grateful to all noble Lords.
National Health Service (Direct Payments) (Repeal of Pilot Schemes Limitation) Order 2013
Motion to Approve
4.47 pm
That the draft order laid before the House on 22 April be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, in 2009 we debated piloting direct payments for healthcare as part of the wider personal health budget pilot programme. Personal health budgets allow people to have choice and control over the care and support that they receive. A care plan is drawn up between individuals and their healthcare professionals, which is person-centred and designed to allow them to access care that works in the best way for them. It is already possible to offer personal health budgets where the money is held by the NHS or by a third party, but direct payments would allow personal health budgets to be held by the individual in the form of cash sent directly to their bank account, albeit one separate to their own personal funds.
Direct payments—and, indeed, personal health budgets more widely—are new to the NHS and we wanted the pilots to explore whether they would be beneficial. We wanted to find out which people and services were likely to benefit most and how we should implement them in order to get the best results. The pilot programme ran from 2009 to 2012 and I am delighted to report that the independent evaluation of that programme supports the wider use of direct payments in healthcare.
I will spend a few minutes talking about what the evaluation and the learning from the pilot programme tell us about direct payments for healthcare and personal health budgets more widely. The evaluation demonstrated that personal health budgets were most beneficial for people who had higher levels of health needs. In particular, it identified benefits to people with long-term physical or mental health conditions and disabilities who access the NHS most frequently. For these people, having real choice and control over how to manage their budget to meet their individual needs is a key factor in how they handle their own condition and improve their quality of life.
The most important element of our debate today is the discussion around whether we should take a step further and allow direct payments for healthcare as a new option for people who have or want personal health budgets, building on the success of the pilots. If the House agrees with the principle, secondary regulations, which will be laid before the Summer Recess, will set out the rules for the making of direct payments for healthcare.
The current debate focuses on direct payments for healthcare because this is the only part of the personal health budgets policy that requires legislative change. The other two ways to manage personal health budgets, where money is held by the NHS or alternatively by a
third party, are currently lawful. However, direct payments for healthcare are a great deal more than money in lieu of NHS services. They are designed to allow people more flexibility and control over how their health needs are met.
The pilot programme showed that the success of direct payments for healthcare is dependent on good-quality, personal, holistic planning. The secondary regulations set out that individual care plans must be agreed before a direct payment can be approved. Importance is placed on the development of the plan being led by the individual or their carers, or a collaboration of both, using the right information and support. It should bring together their knowledge and experience of what works for them alongside clinical knowledge and expertise. The role that healthcare professionals play is still vital, but the conversation between the individual and specialists involved in their care should be a different, more real partnership.
So where does the NHS constitution fit into all this? It is vital, as we are absolutely clear that the budget must meet the full cost of the care and support agreed in the plan. NHS care provided through a direct payment for healthcare remains comprehensive care, free at the point of delivery, based on need rather than on ability to pay. This means no top-ups.
In the vast majority of cases, direct payments for healthcare will continue to be used on traditional care and support. However, a personal budget will give people the freedom to set arrangements that work for them. For example, people will be able to employ their own carers. In these circumstances, they will have greater control over who comes into their home, when they are scheduled to come and what tasks care staff perform. This can make a real difference to people’s lives and to their families’ lives by encouraging them to organise care that is more appropriate for their needs and the lifestyle they wish to lead. It is crucial to note, however, that direct payments for healthcare are not about new money; they simply allow people to use money already being spent on their care in a different way.
The NHS provides a huge range of care, support and treatment, and it would not be appropriate to include all NHS services in direct payments. Secondary regulations will set out what services should be excluded from a direct payment for healthcare. These will include, for instance, GP services, as we believe that disruption to the holistic care currently provided by a GP would be detrimental.
In addition, we do not think that it is appropriate to include the costs of unplanned care in a direct payment for healthcare. This would include things such as a visit to accident and emergency or admissions to hospital. However, it is important to point out that the evaluation of the pilot programme suggests that people with personal health budgets use secondary care services less. We are therefore confident that there is merit in giving people budgets to help them access care and support which works for them and prevents their unnecessary admission into hospital. Everyone will be able to reap the benefits as individuals will experience a more infrequent need for acute care and the overall cost of care for each individual will decrease, meaning an overall saving to the public purse.
Another area where we do not think that the use of direct payment for healthcare would add value is payment for medication. Deciding what medication an individual requires is a core responsibility of GPs and it should remain that way. This is currently dealt with using a two-stage process whereby a GP gives a prescription and pays for the cost of the medicine, and the individual then contributes with their prescription fee. We do not believe that direct payments should be used for either stage, or for any other area where NHS charges apply.
There may be concerns surrounding the proper or improper use of funds, or people’s needs not being met. In order to monitor this, there will be periodic reviews to ensure that the care and support being delivered are meeting the individual’s needs. In the case of direct payments for healthcare, these reviews will include a financial review to ensure that the money is being used appropriately. The details of what the review should entail will be set in the secondary regulations and explained to the individual as part of the care-planning process.
The evidence from the pilot programme suggests that people spend their money as set out in the individual care plan. What is more, they were happy to give money back if it was not needed. However, safeguards will be written into the secondary regulations to ensure that action can be taken where there is an excess that people are reticent to return, or where fraud has occurred.
In implementing direct payments for healthcare we are keen to ensure that integration between health and social care is taken into account. There are a few differences between direct payments for healthcare and direct payments provided by local authorities to fund social care. For example, the latter rely on means-testing, whereas direct payments for healthcare do not. Nevertheless, where possible the policy and regulations for direct payments for healthcare mirror those for social care. This will help to facilitate integration across health and social care. In future, it is intended that adults who have both health and social care needs could have a joint plan and budget.
I will now turn briefly to the issue of who should be able to have a direct payment for healthcare. We do not believe that such a payment would be appropriate for everyone who uses NHS services, or for all the services that an individual may use. The founding principle is that there needs to be a benefit from having a direct payment and that this should outweigh any additional costs. The evaluation suggests that those with higher health needs and inevitably larger budgets benefit most.
I make it clear that direct payments for healthcare will always be voluntary. No one will be forced to have one or be asked to take more control than they would find comfortable. However, where they add value and the individual is interested in using them, the right information and support should be made available so that people can make informed choices about how they wish to proceed. The need for information and support is intrinsic to this entire process, and this will be set out in the secondary regulations.
The pilot programme and the evaluation that followed provided evidence that the concept of direct payments for healthcare is beneficial and cost effective if properly implemented. Nevertheless, we accept that there is still much to learn and that we are only at the beginning of the journey. Therefore, it is important that direct payments for healthcare are introduced gradually and in a way that guarantees the sustainability of the programme. As of April 2014, people receiving NHS continuing healthcare will have a right to request a personal health budget and direct payments. It is thereafter anticipated that this progression, allowing more and more people the opportunity to have direct payments, will continue into 2015 and beyond.
In conclusion, I trust that I have demonstrated how the draft order removing the pilot scheme limitation will enable direct payments for healthcare to be made to patients using the NHS in England, and how secondary regulations will clearly set out the details of how they will be implemented. I commend the draft order to the House.
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Baroness Wheeler: My Lords, I thank the Minister for his comprehensive explanation of the background and purpose of the order. We recognise that it is a technical amendment, but this is nevertheless a good opportunity to be updated by the Minister on the consultation on the extension of direct payments for healthcare and how the learning points from the pilots are to be translated into the revised regulations. Labour is fully supportive of extending personal health budgets, having pioneered them in social care through our personalisation and transformation of social care agenda, and set the ball rolling into 2009 on the PHB direct payments pilot.
It was also right to focus on exploring the use of PHBs and direct payments where people had the highest needs, such as those with long-term health and mental health conditions and who access the NHS most frequently. The pilot group covered CIPD, diabetes and long-term conditions, mental health and stroke and patients eligible for NHS continuing care. Labour was particularly concerned that PHBs do not stop at physical health but also include people with learning disabilities.
The national rollout target for PHBs to be extended to 56,000 people by April 2014 is challenging but is necessary to boost the take-up of PHBs across the country, as is the NHS mandate provision for every patient who will benefit to have the option of a PHB by 2015. Is the Minister confident that in the current circumstances, the resources will be available to support achieving these targets?
The pilot evaluation concluded that the majority of budget holders and their carers reported positive impacts of PHBs on patients—on health and well-being, care and other support arrangements for family members. As we know, PHBs have the potential to improve quality of life and satisfaction for both patients and carers, including psychological well-being. Helping patients design packages of care and support from clinicians, primary and secondary care and community health services also helps to provide joined-up integrated
care, as the Minister pointed out, and in many instances has led to a reduction in the number of hospital visits. This is exactly where we need to be in terms of future service provision.
As a member—like many Members on all sides of both Houses—of the Westminster Health Forum, I recently chaired a specialist conference on PHBs which was attended by staff, providers and practitioners from across health and social care. The forum conferences are a valuable exchange between experts and staff on the ground including, in this case, those who are part of the multidisciplinary teams supporting and delivering PHBs. There was strong support for PHBs but it is clear, as the Minister said, that we are still very much in a learning process about their development. As usual, as you would expect, there were many questions and answers about some of the implementation, monitoring, accountability and evaluation issues.
I should like to finish by asking the Minister three questions on the issues that arose. First, there were widespread concerns at the conference that the evidence on the impact and effect of PHBs needed to be sharpened up in the future evaluation process. The pilot evaluation showed that there did not appear to be an impact on health status per se. Can the Minister explain whether there are plans in the rollout to assess possible measurements of health improvements, although of course we recognise that these can be hard to achieve in long-term health conditions?
Secondly, a number of GPs at the conference spoke about the challenge of getting wider GP buy-in to PHBs. Can the Minister update the House on discussions with the Royal College of GPs and the BMA on addressing this important issue? The college’s guidance on PHBs was especially commended by conference participants.
Finally, there was widespread concern about how PHBs will be taken forward by commissioners, health professionals and service users. Can the Minister update the House on advice planned or issued by the Department of Health in this respect?
Earl Howe: My Lords, this is most definitely one area of policy where all sides of the House are at one and I am grateful to the noble Baroness for her comments. She is right that the pioneering work on social care budgets was carried out during the previous Administration and gave us—and her own Government in 2009—sufficient confidence to institute these pilots for healthcare. I am pleased that she is as gratified as I am that the pilots have been a success, although as I emphasised earlier, we still need to feel our way in rolling them out.
The noble Baroness mentioned specifically people with learning disabilities and I agree with what she said. Although the number of people with learning disabilities involved in the pilot was small, it is clear from their stories that people with learning disabilities and their families benefited from the flexibility and control offered by personal health budgets. As the final report on Winterbourne View identified, personal health budgets have the potential to improve commissioning for people with complex needs and challenging behaviour. Many people in out of area placements, or who are at
risk of such placements, are funded entirely through NHS continuing healthcare or have some NHS funding. These groups could be offered personal health budgets as the basis for a person-centred approach, meaning that they could have more control over where they live and the care they can access. It is that kind of intangible benefit—the noble Baroness asked about health benefits—that is very difficult to capture metrically, but it is nevertheless an important factor.
The noble Baroness asked me about resources and whether they will be available. As I mentioned earlier, personal health budgets are not about new money, they are about using existing money more effectively. Funding for budgets will need to be found from within normal NHS allocations and how that is done will be a decision for local CCGs. The personal health budget toolkit contains learning from the pilot programme on this and more information will become available during the early rollout phase as Going Further Faster sites consider sustainability issues. NHS England will be publishing guidance to help CCGs consider how to introduce direct payments for healthcare and personal health budgets on a local level in a sustainable way.
In answer to the noble Baroness’s question about health outcomes, it might be helpful to run through some of the findings from the pilots, which I think show that we can hold our heads up and say that they benefit people. First, we are clear that personal health budgets are cost-effective. They improve or maintain outcomes and reduce costs or are cost-neutral. These results are particularly true for people eligible for NHS continuing healthcare and people with mental health problems. When personal health budgets are implemented so that the person has choice over services and how they receive the budget, the cost-effectiveness increases. People can choose to meet their needs in different ways through lower-cost interventions, for example by training their personal assistants to carry out some health tasks, such as changing dressings. This means that people’s needs can still be met but in a different way, and perhaps in a way which is less stressful for them.
Personal health budgets also clearly resulted in an increase in the quality of life. The study found that effects were greater when people had budgets of more than £1,000, and this generally applies to people who have higher levels of health need, as I mentioned earlier. People benefited more from personal health budgets when there were fewer restrictions in place around what they could spend the money on and how they received the budget—that is, having a choice of a direct payment, a third-party budget or a notional budget. I hope that that is helpful to the noble Baroness in answer to her question.
In answer to the noble Baroness’s further question, I can tell her that the review will include a review of whether the budget is meeting the individual’s needs. That is clearly an important factor. We need to make sure not only that the money is adequate but that the plan itself and the money that goes with it are in step with each other. As regards the Royal College of General Practitioners and wider GP buy-in to personal health budgets, we have been very careful to engage
with the royal college at all stages. We met them in conference last week to discuss their role going forward. It is important, as the noble Baroness stressed, that we engage GPs in this process, and I hope that we can continue that active co-operation with them.
Justice and Security (Northern Ireland) Act 2007 (Code of Practice) Order 2013
Motion to Approve
5.09 pm
That the order laid before the House on 14 May be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson): My Lords, this order brings into force the code of practice for the exercise of powers in the Justice and Security (Northern Ireland) Act 2007. The 2007 Act provides a range of powers to the Police Service of Northern Ireland, including stop and question, stop and search for munitions and wireless apparatus, and entry of premises. It also gives the police the power to seize items found during searches of people, premises and vehicles. While a number of the powers in the 2007 Act are primarily for use by the PSNI, the Armed Forces also have powers under the Act which they can use in support of the police.
Amendments to the 2007 Act made by the Protection of Freedoms Act 2012 introduced an authorisation procedure for the exercise by the police of stop-and-search powers in relation to munitions and wireless transmitters. The purpose of this code is to set out how the powers at Sections 21, 23 and 24 and of Schedules 3 and 26 to the 2007 Act should be exercised by the Police Service of Northern Ireland. It also sets out the fundamental principles which underpin the use of the powers. The purpose of Annexe C of the code is to set out the general principles for the use of the powers at Sections 21 to 28 and Section 30 of the 2007 Act by the Armed Forces in the exceptional circumstances in which they may be exercised.
The code of practice has been developed to provide guidance on the use of these powers, particularly to ensure that they are used with regard to proportionality and necessity principles. Effective controls on police powers are essential if we are properly to protect civil liberties. Noble Lords will wish to note that there was no requirement to develop a code under the 2007 Act. The Act simply allowed the Secretary of State to make one and my right honourable friend the Secretary of State decided to do so following the changes to the powers made by the Protection of Freedoms Act 2012 to ensure that they were used proportionately, recognising that they are extremely valuable to the PSNI but that we must ensure that they are used properly. We believe that the amended powers and accompanying code of practice strike the right
balance between enabling the police to protect the public while ensuring that there are robust safeguards to ensure that the powers are not abused or used excessively.
I recognise that some of these powers, such as the power to stop and search without reasonable suspicion, can be controversial. It is essential that the powers under the 2007 Act must be used only when it is proportionate and necessary to do so and this code of practice will assist police officers in ensuring that these powers are used appropriately.
This code applies to police powers in the 2007 Act, which are specific to Northern Ireland. It does not cover any other police powers in UK-wide legislation or other legislation applicable to Northern Ireland only. It does not affect the operation of other codes of practice, including the Police and Criminal Evidence (Northern Ireland) Order 1989 codes and the Code of Practice (Northern Ireland) for the authorisation and exercise of stop-and-search powers relating to Sections 43, 43A and 47A of, and Schedule 6B to, the Terrorism Act 2000.
In December 2012 my right honourable friend the Secretary of State for Northern Ireland launched a 12-week public consultation seeking views on the code of practice. The consultation closed on 6 March and a total of four formal responses were received. All four broadly welcomed the introduction of the code of practice as drafted. The comments were carefully considered and amendments to the code were made. The draft code was close to being finalised when the Court of Appeal issued its judgment in a judicial review—the case of Canning, Fox and McNulty—that challenged the Police Service of Northern Ireland’s use of stop-and-question and stop-and-search powers in the 2007 Act.
5.15 pm
The Court of Appeal found that, without a code of practice in place for the use of these powers in the 2007 Act, the powers were too broad and lacked adequate safeguards. Noble Lords will wish to note that the judgment related to the powers in the 2007 Act prior to the amendments made by the 2012 Act, which brought in the safeguard of an authorisation process for the stop-and-search power. However, following the judgment and subsequent legal advice, the PSNI suspended its use of stop-and-question and stop-and-search powers until a code of practice was in place. Due to the risk to public safety if these powers were not available to the PSNI, it was considered necessary to bring in the code of practice under an urgent procedure, as provided for by the 2007 Act. With the approval of the Secretary of State for Northern Ireland, the code of practice was brought into force on 15 May and the PSNI was able to resume use of these powers, which are an essential tool in ensuring public safety. This urgent procedure allows the code to remain in force for 40 days. This period ends on 3 July. In order for the code to become permanent, it must be debated and approved by both Houses.
The Independent Reviewer of the Justice and Security Act, Mr Robert Whalley CB, reviews the operation of Sections 21 to 32 of the 2007 Act and considers the
views of those who use or are affected by these sections. In his most recent annual review the independent reviewer found:
“The operational indicators clearly point towards the continuation of the JSA powers for a further year … my judgment is that the Justice and Security Act powers should continue unchanged for another year”.
The context for these powers is crucial to the debate. Your Lordships will all be aware that the threat level in Northern Ireland remains severe. It is vital that the Police Service of Northern Ireland continues to have available the powers in the 2007 Act. The powers in the Act are not terrorism powers per se; they are powers for dealing with public order situations, including, but not restricted to, terrorism. The powers are an important tool for maintaining public order and were exercised by the PSNI during the recent flags dispute. However, given the current situation in Northern Ireland, these powers are often used to protect the public from terrorist attacks. The PSNI has demonstrated that these powers are necessary and effective in dealing with Northern Ireland-related terrorism. They have prevented attacks, saved lives and led to arrests and convictions. I commend the order to the House.
Lord Bew: I thank the noble Baroness for introducing this statutory instrument and broadly offer my support. Since the Court of Appeal’s ruling in May of this year, it is clear that this matter has acquired a degree of urgency and I understand why the Government want to move so quickly. Broadly speaking, I accept her words when she says that the right balance has been achieved between civil liberties and the need to preserve public security.
However, I have one slight reservation. Paragraph 8.4 of the Code of Practice for the Exercise of Powers in the Justice and Security (Northern Ireland) Act 2007 states:
“The use of these powers can protect people’s rights under the European Convention on Human Rights, such as Article 2 (the right to life) by preventing serious harm posed by use of unlawful munitions and wireless apparatus. However, if these powers are exercised there may be some interference with other rights under the Convention, such as the right to private life, and this should be borne in mind when officers judge it necessary to use these powers”.
This is under the part of the code dealing with search for and seizure of munitions and transmitters. My slight problem with that phrasing is that it seems to say that there are two rights. It does not do so explicitly but it leads into it. One is the right to a private life and the other is the commitment that the police must have, under the European convention, to protect life. Following the Court of Appeal ruling, we are putting this problem back with the officers on the ground, and it is probably reasonable to make it clearer. I think that Parliament properly believes that the right to life, in certain circumstances, trumps the right to a private life for a person who might be under investigation. There is just an element of equivocation in the drafting there, which suggests an apparent equality of rights. I accept that it does not actually equate those rights but it certainly does not prioritise one right over another.
Noble Lords will remember that we have expected officers in the last few days, in the lead-up to the G8
summit, to protect world leaders who are in Northern Ireland. They might have been in a situation of trying to intercept ammunition that was being moved around Northern Ireland. I cannot imagine that it would be enormously helpful for them to have to have in mind that they must, on the one had, weigh up their views on the right to life—we all have the right to life but in this case it is the lives of some very important people—and at the same time have to bear that in mind that they might be interfering with the private life of the person driving the car. There is a real problem of balance here and I just think that the drafting is slightly too glib. I am not in any way going to push this point but think it is worth registering. Broadly speaking, I accept the reason for the statutory instrument and accept entirely the defence that has been offered this afternoon by the Minister.
Lord McAvoy: My Lords, I, too, thank the Minister for the clear exposition of the powers outlined in the code of practice. There is a very wide range of powers affecting the Police Service of Northern Ireland and the Armed Forces and it is right and proper that there should be a well thought out code of practice governing the exercise and use of those powers. We all know the situation in Northern Ireland, where the authorities, the police and the Armed Forces have to be seen to be absolutely foursquare in their application of those powers. This code of practice builds in safeguards for the use of the powers for all in the community.
Security in Northern Ireland is of the utmost importance to all noble Lords in this House and we are united in our commitment to ensuring that people in Northern Ireland are safe and secure. The men and women officers of the Police Service of Northern Ireland do their jobs with bravery and dedication. The measures in the Act play a hugely important role in combating terrorism and protecting communities in Northern Ireland and it is very important that they are overseen by rigorous, independent scrutiny. That is encompassed in the code of practice, which is vital to maintaining public confidence in Northern Ireland in the exercise of these powers. We on this side of the House are happy to lend our support, in the best traditions of bipartisanship, and understand the reasons for the urgent nature of the measure. I would like to place on record that Her Majesty’s Loyal Opposition give their full support to this order.
Baroness Randerson: I thank both noble Lords who have participated in this brief debate for their support and I will do my best to respond to the points raised. I thank the noble Lord, Lord Bew, for his broad support. He referred to paragraph 8.4 of the code and read an extract from it. I hope noble Lords will bear with me if I read some further extracts in response to illustrate my point.
The noble Lord referred to the balancing of the two rights. If you read the code as a whole you will see that it acknowledges the supreme importance of the right for one’s life to be protected and the obligation to protect life. There was a long consultation on this code and changes were made to it as a result, so it has been fairly thoroughly looked at. If you look further in the code, paragraph 8.6 says:
“Officers should exercise consideration when entering and searching premises. If entry is forced, officers should endeavour to cause as little damage as possible … officers must ensure the building is left secure”.
Paragraph 8.8 makes the point that:
“Where practicable, officers should seek the co-operation of any person in the dwelling”.
“Officers should exercise their powers courteously and with respect for persons and property”.
When the code deals with the need to enter premises—which may be a building but could be a field or vehicle—it acknowledges that you have to recognise that people, as well as having the right to have their life protected, also have a right to a private life. It goes on to explain that one right has to be exercised with a view to the other. I believe the code of practice enshrines the right balance.
I thank the noble Lord, Lord McAvoy, for his support. He referred to the importance of the code building on safeguards. He paid a very important tribute to the PSNI. The police service in Northern Ireland is a devolved issue, but the code was developed in very close collaboration with it, and my right honourable friend the Secretary of State for Northern Ireland keeps very close links with the PSNI. Its involvement in the drafting of this code is essential to its smooth operation in the months and years to come. Finally, the noble Lord referred to the importance of rigorous scrutiny and put his finger on the key point. A process of rigorous scrutiny provides the transparency that ensures the integrity of the process. I hope the noble Lords will feel able to support the order.
Payday Loans
Question for Short Debate
5.29 pm
Asked by Lord Kennedy of Southwark
To ask Her Majesty’s Government what assessment they have made of the alternatives to the payday lending industry available to consumers.
Lord Kennedy of Southwark: My Lords, I am delighted to have secured this debate today. I am looking forward to all the contributions from noble Lords, in particular from the most reverend Primate the Archbishop of Canterbury. I am delighted that he has found time in his very busy schedule to take part in this afternoon’s debate.
We are in a very desperate and difficult situation. The payday lending industry is making a small group of people very rich by lending to people who struggle to get access to reasonably priced financial products to meet their needs at the most exorbitant and outrageous rates of interest. As the most reverend Primate told the House when he spoke during the passage of the Financial Services Act, this is nothing more than usury. A loan becomes usurious because of the excessive or abusive interest rates applied, and the payday lending industry does just that.
I am extremely disappointed that the Government have done next to nothing on this issue following the cross-party agreement on an amendment to cap interest rates which was passed in this House last year. Will the noble Viscount tell the House why the Government have done so little on this issue? Yes, we are living in tough times, but I get the feeling that for some people times are tougher than for others. I do not feel that we are all in this together. Rip-off Britain is alive and well. The payday lending industry is one of the worst examples of exploitation of the poor and the vulnerable, and we all need to do something about it. Government, Parliament, banks and other financial service providers, the Office of Fair Trading, other regulators, the Church and civil society all need to say, “Enough is enough. We are not going to let you treat people like this any more”.
The Government should be doing a number of things and should use their influence to get others to take action as well. We find ourselves in a situation where the alternatives to the payday lending industry are few, and the alternatives that exist need active help and support to grow in strength to be able to deliver and provide real and effective choice for consumers.
The Government have had plenty of advice, seen plenty of studies, and lots of work has been done to identify the problem for them, but so far their response has been poor. Some of the worst practices of this industry include poor lending checks—when there is no proper assessment as to whether the applicant for a loan has enough disposable income to repay the loan in full. Payday lenders often roll over loans without checking whether they will be affordable, even though rollovers should be seen as a clear indication that the borrower may be experiencing financial difficulties. The Office of Fair Trading noted that payday lenders have a strong incentive to roll over loans, making as much as half of their revenues this way.
Multiple loans are also a key indicator of acute repayment problems and should ring alarm bells—but they do not. The misuse of continuous payment authorities has seen situations where money is taken from people’s accounts, leaving them with no money to cover food, housing and other essential bills. Default interest and charges make the cost of rollovers very expensive for borrowers, who cannot repay their loan on time. Again, this is another huge source of revenue for payday lenders.
The aggressive targeting of students and young people is wrong. I was horrified to learn of young people using their smartphones to get a payday loan to buy another round of drinks on a Saturday night. I could go on with this list of bad practices and horror stories but I am sure that other noble Lords will have further examples that they will want to share with us. I will speak about some of the things that could be done to regulate the industry more effectively and get it to act responsibly.
I invite the Prime Minister to call a summit at No. 10 to get the leaders of the payday lending industry, the banks and other financial services providers, including credit unions, the churches, the regulators and the representatives of civil society to sit down together to come up with an agreement on what is acceptable and what is not, what can and what cannot be done and, if need be, to enshrine that in law.
When I joined this noble House just over three years ago almost every Minister who spoke from the Dispatch Box told us that the answer to most of our problems was the big society. Today we never hear the term mentioned, as if it had been banished from the book. If the concept ever meant anything, surely it means people coming together, supporting their community and the most vulnerable, working together, opposing injustice and unfairness, and not letting people be ripped off. What happened to the big society? I hope the noble Viscount will be able to tell the House how this concept is helping people in financial hardship.
What can we do? At a minimum, we could create a situation where no one is struggling to pay off multiple payday loans. No one should owe more than £500 in payday loans. Lenders recovering payday loans should never leave borrowers without the means to meet basic expenditure such as rent, food and council tax. The use of continuous payment authorities should be stopped, and replaced with payment authorities that are controlled by the customer only. If that is not possible because the type of basic bank account the customer has will not allow that, the bank should change the rules and permit it. If a customer notifies the payday lender that they are in financial difficulties, then default charges and interest payments should be stopped for at least 30 days while they get help to deal with their debts. The default charges and other punitive charges should never exceed 30% of the original loan.
Every payday lender on the high street should be required to provide details of where people should go for debt advice, and online lenders should also provide similar information. I would like to see all payday lenders carry a health warning on their advertisements in whatever medium. These warnings should be about 20% of the size of the advert. Similar rules used to apply for cigarette companies, before they were banned from advertising. Payday lenders should tell customers where to go for debt advice, and notify them that cheaper alternatives are available.
For all those measures, other measures are being introduced by payday lenders. We need a plan, and we need to support the alternatives to the payday lending industry. Credit unions have a role to play, and noble Lords will be aware of my active support for the credit union movement over many years. However, only the biggest credit unions will be in a position to provide immediate help. The London Mutual Credit Union, one of the biggest in the country and the biggest in London, has taken up that challenge. The legislative reform order the Government passed on credit unions was very welcome, as is the Treasury’s recent announcement of a rise in the interest rate cap.
The credit union expansion project is good news, and on many occasions I have praised the Government for their work here, but a £35 million fund is not going to provide the solution to our problems. It is a drop in the ocean, and much more needs to be done. In this House I have previously called on the banks to actively support the credit union movement. They must do so not only with a bit of sponsorship or small sums of money, although that would be welcome, but by making a commitment to build these organisations and make
them financially robust. Banks should use the skills and expertise of their own staff, working on long term secondments to help the credit union movement grow and develop. The aim is to build what we see on both sides of the border in Ireland and in the United States of America: financially robust institutions, owned by their members, which deliver locally tailored financial products at a reasonable price.
We also need the support of the wider business community, and in fact every employer in the public and private sector. Simply advertising the availability of their local credit union to staff and allowing them to save with it through check-off would be a big step in the right direction. Some of our biggest companies and the Government should take a lead in this with an advertising campaign in support of the credit union movement.
It would also be very helpful if local government as a whole took a proactive role in supporting local credit unions. There are some fantastic examples in places such as Southwark, Islington and Sandwell, to name just three. We need the whole of local government to play its role. If every local authority pledged to deliver a place on the high street for their local credit union, what a welcome sight that would be.