My Lords, may I first acknowledge the contribution to human rights of my dear friend of many years, the noble Baroness, Lady Greengross, a founder member of our Equality and Human Rights Commission, whose work for the rights of older people, among others, was so very effective?
I am grateful for the opportunity to explore what the Human Rights Act 1998 has achieved by way of impact on ordinary people’s lives—not, I hasten to say, as a legal expert, though I should perhaps declare that I have been a magistrate and a member of employment tribunals. More to the point, I am proud to be a member of the British Institute of Human Rights advisory board, and it is there that I have learned much about the very many examples of redress for breaches of human rights. What these amount to is, essentially, disregard for the dignity of our fellow citizens and a lack of respect for them on the part of public authorities. May I invite the Minister to congratulate the British Institute of Human Rights on the work it has done over the years to train public services in the application of the Human Rights Act to their functions?
I will first give some examples of what I mean by impact on people’s lives. Secondly, I will say a few words about what the Human Rights Act has not done. I will conclude by suggesting some of the lasting principles that have informed the Human Rights Act. My remarks are premised on the assumption that, although professional lawyers and judges at every level are essential for the interpretation and implementation of law—we are lucky in this country to have such a distinguished and honourable corps of practitioners—the law is meant for people, for everyone, so that they should understand their obligations and be clear about what they are entitled to. It follows that law should be intelligible, as far as possible, and that redress should be accessible.
Some examples of what our domestic courts have achieved for people through the Human Rights Act are well known. We have heard about the elderly couple who had their wish to live in the same care home respected, that people must be allowed to wear religious symbols at work and that siblings should not be arbitrarily placed in separate, distant foster homes. Do we also all know that the police now have a positive obligation to protect women from domestic violence? This has achieved a change—somewhat—in police priorities and practice. There are several cases of children with learning disabilities who were subjected to damaging isolation, harsh restraints or unexplained evidence of violence, whose parents were able to use the Human Rights Act to obtain changes in their treatment, often resulting in an improvement in a child’s behaviour. We should also remember the case of Corporal Anne-Marie Ellement, whose family were finally able to obtain a full investigation after she took her own life following rape and bullying; that of the incontinent patient forced to use a bucket to urinate in and carry it along the corridor to empty it herself; the safeguarding of trafficked children as a result of the 2013 case of L, HVN, T v R; the Northern Ireland decision that same-sex couples can adopt children; and the use of the right to be free of torture and inhuman and degrading treatment after tragic deaths in mental health institutions.
My Lords, I welcome the chance to engage in this important debate on this important statute. I begin by declaring my interest as chair of research at the Society of Conservative Lawyers.
Experience of the Human Rights Act has revealed structural flaws that the Bill of Rights would go some way to remedying. Our time today is short, so I will focus on just three matters. The first is Section 2, which directs a court determining a question in connection with a convention right to “take into account” any judgment of the European Court of Human Rights. That has led to unfortunate results, with our courts sometimes doing more than just take account. As the noble and learned Lord, Lord Judge, said in a lecture in 2013, Section 2 should be amended to make it plain that in this jurisdiction, the United Kingdom, the Supreme Court is, at the very least, a court of equal standing. Thankfully, Clause 1 of the Bill of Rights addresses this.
Next, I turn to Section 3. Under this, our legislation must be interpreted as far as possible in a manner compatible with the convention. This displaced conventional approaches to statutory interpretation. The House of Lords in the case of Ghaidan made that worse. It held that this meant the court should adopt any possible interpretation of a statute to give effect in a way compatible with convention rights, even if “the interpretation is unreasonable”. That is extraordinary.
This has led to strained interpretation, unintended by Parliament. Then, because the provision in question has not been ruled incompatible, as it could have been under Section 4, it is not sent back to Parliament to address. This has taken away from Parliament decisions that are rightly for it. Such decisions often involve balancing exercises. Our parliamentarians, for better or worse, represent society. They are likely to have access to information—and better information than people arguing it in the courts—about the issues involved to balance what matters.
My Lords, I thank my noble friend for drawing attention to this important subject, and for finding an opportunity to note the many improvements to life in the UK brought about by the Human Rights Act 1998. Her comments are a timely reminder of how much the HRA has achieved for all UK citizens.
Unlike other distinguished contributors to this debate, I am far from being a legal expert. I come at it from a general sense that the HRA has had a positive and enlightening effect on the way the UK perceives justice and has had a particularly beneficial impact on public services. The HRA compels public organisations—the Government, the police and local councils—to treat everyone equally, with fairness, dignity and respect.
The HRA is now embedded in the work of public authorities. Instances of this have been highlighted by my noble friend, but I also note that it was a humans rights case that finally decriminalised male homosexual acts in Northern Ireland, in 1982, and it was a violation of human rights under the HRA that led to a change in UK law that allowed gay members of the Armed Forces to be open about their sexuality.
The HRA has achieved lasting improvement in individuals’ lives by helping to develop an everyday human rights culture across the UK. It is not just the stuff of high-profile and often controversial court cases; indeed, it often acts to stop cases before they go to court. Despite that, criticism of and antipathy towards the HRA run throughout public and political discourse. I believe this to be misplaced. Indeed, when reading for this debate, it was instructive to see how much of the opposition to the HRA is based on mythology. The noble Lord, Lord Pannick, highlighted this in his oral evidence to the Joint Committee on Human Rights earlier this month. He busted the myth that the HRA has reduced the power of Parliament to legislate as it sees fit. European Court of Human Rights judgments are not binding on our courts, so why do the Government feel the need to include provisions that assert parliamentary sovereignty in their proposed, and rather unhappily titled, Bill of Rights Bill? There is also a myth that, because of the HRA, courts may be interpreting laws in ways that were never intended by Parliament, thereby undermining parliamentary democracy. But what court judgments exist to give substance to that view?
My Lords, I also thank the noble Baroness, Lady Whitaker, for this important debate. I am delighted to see the noble and learned Lord, Lord Mackay of Clashfern, in his place after the jollifications of last night when he so generously invited us all to his party. He has obviously got great stamina.
I am most grateful to the organisations that have sent us material: the British Institute of Human Rights, Amnesty, Liberty and one new to me which has the apt acronym of POhWER—People of Hertfordshire Want Equal Rights, equal rights being very much the theme of this debate.
The European Convention on Human Rights and the Human Rights Act have enabled many ordinary people in this country to secure their rights in many sectors and aspects of their daily lives. This is a very different narrative to that pushed by some politicians and commentators, mainly but not all on the right of politics, who have spent years criticising and misrepresenting the convention, the Strasbourg court—which gets confused with the EU court, deliberately or negligently—and the Human Rights Act, which incorporated the convention into UK law.
These human rights instruments have been demonised as benefiting only criminals, illegal immigrants and the generally undeserving. That accounts for the distasteful provisions in the Bill of Rights whereby human rights have to be earned and are contingent on conduct, undermining the principle that rights are universal and attached to a person by virtue of their humanity.
This debate is a welcome chance to redress the score and acknowledge the myriad ways in which human rights provisions protect all of us. Over the past two decades the HRA has given individuals a mechanism to enforce their rights in practice, challenge unlawful policies, be treated with dignity by public authorities and to secure justice for their loved ones. It has ushered in—not least through the positive obligations provision that the Bill of Rights will undermine—a culture of respecting human rights in hospitals, schools, care homes, local government, housing providers and the criminal justice system, helping to ensure that people who may be vulnerable are given the support they need to flourish and thrive.
My Lords, I thank my noble friend Lady Whitaker for initiating this debate. I read her contribution in a debate that took place 11 years ago. Her wisdom and compassion shone out then as it did today. I quote one extract from her contribution:
“Enemies of red tape and bureaucracy should welcome the Human Rights Act. It is there to give a human dimension back to state operations. It is not … primarily for lawyers any more than water is for water engineers. It is for citizens to rely on and public servants to have regard to.”—[Official Report, 19/5/11; col. 1507.]
In the same debate the noble Lord, Lord Pannick, said:
“one of the central purposes of human rights law is to protect the interests of those sections of the community who lack political power, who Parliament has failed to protect against unfair treatment by the majority … Parliament remained sovereign on all these issues … tempting though it is for politicians to try to win support by fighting a battle of Parliament Square against the Supreme Court, the current Administration need to be reminded that there are many issues where the dispassionate assessment of public policy by an independent judiciary, and by a reference to standards of fairness and proportionality, serve a valuable public purpose.” —[Official Report, 19/5/11; cols. 1502-03.]
Of course, we now know that the current Administration, the same Conservative Government, have yielded to that temptation 11 years later.
Before I continue, I echo the tributes that were made at the time to the noble and learned Lord, Lord Irvine of Lairg, who led that particular debate and, more importantly, steered the Human Rights Act 1998 through this House. His contribution to this country is immense. He reminded the House then that although Britain was the first state to ratify the European Convention on Human Rights in 1951, failure to incorporate the convention into our domestic law meant that our own citizens could not argue for their convention rights in our own courts, but had to take the long and expensive road to Strasbourg that some noble Lords have already referred to. It took another 47 years to resolve that, and he paid tribute to Churchill’s Conservative Government for ratifying the convention and referred to a publication by Norman and Oborne entitled Churchill’s Legacy: The Conservative Case for the Human Rights Act. In attempting to dispel many of the myths about the Human Rights Act, Norman and Oborne concluded:
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, some 40 years ago—that is, some 20 years before the 1998 Act—I used to appear for the UK Government in Strasbourg. I regularly—almost invariably—lost their cases. My record there was: played 12, lost 10, drew 1, won 1. That counted as not a bad record in those days.
I then spent some 30 years on the Bench, roughly half of it before the 1998 Act came into force in 2000 and half afterwards, dealing with cases of a human rights nature. There are some who question whether the convention was ever necessary for us, and whether our own laws were not ample and well able to secure our basic rights and liberties. Indeed, one prominent member of the Tory party just a few weeks ago in this House, in an HRA debate, raised that very question and asked the Minister to identify any specific advantages that had come to this country as a result of our adherence to the European convention. Five minutes is just about enough for a riposte to that, to show that the convention has proved over the years invaluable in liberalising and modernising our laws and practices, but it does not allow time to discuss the impact of the 1998 Act in intensifying, accelerating and facilitating the process. Still less does it give time to discuss the more nuanced and altogether more topical question as to the effect of the proposed replacement of the 1998 Act with Mr Raab’s current human rights Bill. As to that, I shall say no more than that, while I regard much of it as window dressing—or in the words of Sir Robert Buckland, as a solution in search of a problem—I am less sceptical than many as to whether it is all bad or whether it is designed, as some would suggest, to limit our human rights in future.
Turning therefore very briefly to the benefits of the convention over the years, here are just a few. These first are drawn from the cases that I lost in Strasbourg. First, on prisoner rights, we used to censor all prisoner correspondence, in and out, even with their lawyers. The Home Office, to its credit, wanted to liberalise, this regime, but the Prison Officers’ Association, a militant union, would not allow it. We duly went to Strasbourg, fought and, of course, lost the cases, and the Home Office was then in a position to confront the union with these adverse decisions, and we made way forward.
We similarly happily lost the closed-shop case to the then Government: there is as much a right not to join a union as there is to join one. Other cases I lost were about telephone tapping practices and the security service intrusions where there was no legal authorisation. In later years, as the noble Baroness, Lady Warwick, mentioned, our adherence to the convention prevented the MoD outlawing all service personnel with homosexual tendencies, and prevented the Executive, as opposed to the judiciary, in life cases determining the actual length of tariff sentences and prisoner release dates. One could go on and on, but there is no time.
My Lords, I am proud to speak in this debate and it is always a pleasure to follow my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I thank my noble friend Lady Whitaker for this important and timely debate and for her far-reaching introduction. I thank Professor Paul Johnson, the executive dean of the University of Leeds, for his invaluable advice and briefings from Justice, POhWER—including a coalition of charities—Amnesty and the Scottish Human Rights Commission, which warned us about the Government’s intention to replace the HRA and the negative consequences that could follow. I note with concern the absence of a briefing from the English Equality and Human Rights Commission.
I apologise for being blunt, but when I think about the practical impact of the Human Rights Act it is personal, because the impact of the Act has been deeply profound for LGBT people like me. Indeed, the very concept of equality, in which our legislation later developed, began with the equal age of consent. I think back to when the Labour Government introduced the Bill that became the HRA, and of the great promise made in this House by the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, that:
“This Bill will bring human rights home”,
so that
“the human rights of individuals and minorities should be protected by law”.—[Official Report, 3/11/97; cols. 1228, 1234.]
As a minority, I take the protection of my rights by the HRA very seriously indeed. I remember when, year after year, decade after decade, LGBT people and other defamed minorities were forced to go through extremely lengthy and costly proceedings to reach the European Court of Human Rights to gain protection under the European Convention on Human Rights in the United Kingdom. Even though the United Kingdom, as we have heard, was a signatory to the convention, individuals had limited mechanisms before the Human Rights Act to enforce their convention rights in full in the domestic courts. This produced the disgraceful situation in which domestic courts often acknowledged that LGBT people suffering discrimination would win if they advanced a complaint under the convention in the Strasbourg court but were powerless to help them in the United Kingdom.
My Lords, I too thank the noble Baroness, Lady Whitaker, for securing this debate, and for setting out so clearly many of the great benefits that have been achieved through the Human Rights Act. I will not repeat or elaborate any of those here, and perhaps save a moment or two in so doing.
As neither a legal nor constitutional expert, I am not going to delve into the technical side of the matter, but it is clear to me that this is a discussion not simply about the importance of the Human Rights Act 1998 but about many of the concerns—already raised from different Benches in this House—that noble Lords have with the proposed British Bill of Rights. Before I mention some of my concerns, I commend the introduction of the right to a trial by jury in the updated Bill of Rights Bill. But aside from this one welcome measure, it strikes me that there is a very real danger that the new Bill of Rights may remove levels of accountability from government, particularly in areas such as immigration, which I have an interest in.
Interim decisions by the European Court of Human Rights, such as that which recently prevented the deportation of refugees to Rwanda, will, it appears, become a thing of the past once the 1998 Act is replaced. This Bench has been particularly critical of the Rwanda policy. Recently, the Lords spiritual signed unanimously a letter that spoke of our Christian heritage, which should inspire us to treat asylum seekers with compassion, fairness and justice, and, above all, that when they arrive on these shores they are given due process so that their claims can be examined.
This emphasis is important when we remember one of most influential architects behind the Council of Europe, which drafted the original European Convention on Human Rights. Robert Schuman, drawing on Catholic social teaching, saw the convention as the foundation on which to base the defence of individuals against all tyrannies and against all forms of totalitarianism. What concerns me is that the emphasis on areas such as national sovereignty and the “will of the people”—although there are obviously aspects of those that are good in themselves—means we lose sight of the original impetus behind the foundations of institutions such as the ECHR, which was to protect individuals against abuses from their Governments, something that at the time they were tragically aware of.
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All these cases relied on the Human Rights Act to achieve lasting improvements in their situation. Is it really plausible that all the people bringing these cases could have managed to get to Strasbourg for a hearing, also knowing that they would have to wait the customary four to five years? I suggest that the domestication of the rights in the European convention, through the Human Rights Act, was essential for justice to be done in these and many other cases.
I think it is important to remind ourselves that uses of the Human Rights Act do not necessarily involve going to court. One of the significant effects of domestic law is that well-meaning people—most people—want to comply. Carers have raised the specific human rights issues of their charges with the public service concerned, which has then responded positively. Conscientious public servants have been helped by discussions with, for instance, the British Institute of Human Rights to think again about how they can adapt their practice. The British Institute of Human Rights has trained over 40,000 people in the last 20 years in the application of the Act to their functions. I am reminded of the dictum of the great Sir Hersch Lauterpacht, the founder of the concept of crimes against humanity:
“the well-being of an individual is the … object of all law”.
The law can achieve that by simply being there.
To take this down to specific instances, a housing association specialising in people with offender backgrounds has been able to reduce their violent behaviour and thus improve the safety of residents through training in interpretation of the Human Rights Act; young people in mental health institutions have similarly been protected from grooming while still having their mobile phones for access to their families; students have secured protection for girls against sexual harassment at school; countless advocates and carers, both volunteer and professional, have obtained the exercise of rights essential to well-being for the people they look after.
There are several things that the Human Rights Act has not done, however. It did not vindicate the relationship with a pet cat as a reason not to be deported, as a reading of the judgment will show, contrary to the claim made by Theresa May MP. Unlike the original Daily Mail story that a “suspected Iraqi insurgent” “caught red-handed with bomb” had won £33,000
“because our soldiers kept him in custody for too long”,
the Iraqi, who was neither an insurgent nor a terrorist, and had no bomb, was unlawfully detained, beaten with rifle butts, punched in the face and subjected to sleep and sensory deprivation by soldiers while in custody. Fortunately, in this case, the Daily Mail, which had attributed its false interpretation to the Human Rights Act, was obliged by IPSO to make a full apology and retraction. The Human Rights Act has not supported a contention that a right to hardcore pornography exists for prisoners. There are quite a few other examples of these misleading and pernicious myths. Some of these centre on difficulties with understanding the import of Article 8, on the right to private, home and family life. This is an area where jurisprudence may be evolving—and we should try to clarify the balance that it is intended to strike.
There are some important principles in the Human Rights Act. Perhaps the first is that our judges have full discretion in determining human rights cases in the United Kingdom and the UK is the primary forum for deciding on the application of human rights to its citizens. Secondly, the Human Rights Act reflects the devolved settlement for the nations of the United Kingdom. This is of concern to the peace process in Northern Ireland. The noble and learned Lord, Lord Hope of Craighead, who regrets that he cannot take part, has encouraged me to point out that under the Scotland Act, which also gives effect to the convention rights, there is no wish to alter the arrangements and that any changes would, of course, need the consent of the Scottish Ministers. I hope that the Minister can give me the assurance that that consent would be sought.
The Human Rights Act has also been helpful in defining a public authority as one which carries out public functions. This inclusive definition acknowledges the public/private partnerships which underpin our modern public services. The Human Rights Act also establishes judicial discretion about decisions on whether the Government acted fairly in restricting our rights. It stipulates positive obligations to act in accordance with human rights, thus making them a reality, and to apply laws whenever possible in a way that upholds human rights, to underline the centrality of the interests of the individual citizen and to enable modern concepts such as belief to be understood together with religion; and, most significantly, by creating a system for hearing cases in the UK rather than in the Strasbourg court it enables access for all to justice. Domestic jurisprudence will encourage the development of clarity about proper limits to non-absolute rights, so that people can understand where the balance ought to be struck. So, while there is always room for updating, these are some of the principles of our modern legislation which should be maintained.
One other effect of having the Human Rights Act as part of domestic law deserves mention: the culture that it promulgates of respect for the dignity of our fellow citizens within public services. Sadly, this is not always present, not necessarily because of callousness but because the constraints felt even by dedicated public servants of expenditure, time and targets can be allowed to prevail over what should happen. The Human Rights Act is, in fact, often cited as a practical tool to support public services in their work. Thus, we are in a position to create public ownership of rights values. To entrench this, we need to teach and debate them in schools and in citizenship education generally. We can explore what the balance between conflicting rights should be and how responsibilities are a necessary corollary of rights. In a diverse society, with different faiths and backgrounds, we can cohere better around human rights.
There is another reason for promulgating a domestic human rights culture. In this country, we prefer to enable equality of opportunities rather than equality of outcomes. But the inadvertent consequence of that is that it assumes that those who fail to benefit from equal opportunities were simply not up to it and lacked the necessary qualities of one sort or another—it was their fault. We need a human rights culture to ensure that scorn for the failures in our society does not undermine a humane and compassionate approach. Respect for the individual human being is the core of human rights. Human rights are a recognition that everyone is of equal worth.
In conclusion, in his writings on the theory of justice, Amartya Sen quotes Pip in Great Expectations, that
“there is nothing… so finely felt as injustice.”
Professor Sen adds,
“and there the search begins. The idea of justice calls for comparison of actual lives and iniquities.”
That is what I hope an exploration of the impact of the Human Rights Act can uncover. I look forward with keen interest to the contribution of learned and distinguished speakers in this debate, and very much to the response of the noble and learned Lord, Lord Bellamy, whose speech in the crime reduction debate I very much admired.
Let me explain. Policy is essentially for those who make the law. Policy choices have to be made between compensating individuals and protecting the budgets of public services. Of its nature, a balancing exercise presupposes a situation in which the factors are not all one way. A stark example is the case of Quila, decided in 2011. In 2008, the Home Secretary changed the Immigration Rules to deter forced marriages. The change raised from 18 to 21 the minimum age of the person entitled to be granted the right to settle by reason of marriage.
The worthy aim was to deter forced marriages, but the Supreme Court found a violation of Article 8, the right to family life. It ruled that the interference with family life was not proportionate. One might feel, and I suggest, that there was scope for more than one view on this sensitive matter. The Home Secretary’s policy was supported by 50% of the respondents to a government consultation and by the largest NGO concerned with the evil of forced marriages. That was a matter for Parliament, not for second guessing.
Finally, Section 12 has given insufficient weight to freedom of expression. Incorporation into domestic law of the two qualified rights, Articles 8 and 10, gave direct domestic effect to Article 8, creating a right to privacy. That has protected the rich and powerful with insufficient weight given to the public interest in free speech.
Fortunately, under the Bill of Rights and the forthcoming Higher Education (Freedom of Speech) Bill, free speech will be given greater weight, but I should add as a footnote that the Online Safety Bill will wrongly create a serious threat to free speech. What we can legally say or write, we shall be stopped from putting online—a strange concept of “legal and harmful”.
Without leaving the convention, there is plenty to be done to improve its incorporation in domestic law.
As others have observed, much of the mythology surrounding the exercising of human rights stems from media misrepresentation, not least the tabloids’ obsession with the HRA as a “chancers’ charter”. I can add to my noble friend’s litany of things the HRA is not responsible for. The HRA is not the reason why the police cannot put up wanted posters. A UK judge on the European Court of Human Rights did not call for axe murderers to be given the vote; in fact, he said it was important for the UK to implement the Hirst judgment that the blanket ban on voting by convicted prisoners was unlawful. Myths about the HRA may start in the Daily Mail but they become part of the popular discourse about human rights. To counter that, we need a better understanding of our fundamental rights, how the UK’s human rights framework works and how our rights are enforced.
An important recommendation from the independent HRA review was for an effective programme of civic and constitutional education on human rights and individual responsibilities. That was touched on recently in this House in an Oral Question on citizenship education, which in recent years has been allowed to fall away in our schools. We need to do better. Does the Minister agree that a good start would be to extend the statutory entitlement to citizenship education to primary schools?
The Human Rights Act helps to protect the most vulnerable in our communities, but it serves us all. How human rights are applied and how competing rights are balanced may vary depending on the context, but that does not affect their universal nature. Human rights apply to everyone. They are the deep foundations of our lives and of our laws, and they exist because of our humanity, not because of what we have done in our lives. Does the Minister agree that, much as my noble friend Lady Whitaker said, human rights recognise that everyone is of equal worth?
May I further ask the Minister whether, in these troubled times, when the UK is seeking to ask other countries to respect human rights and international law, he will acknowledge that many of the Bill of Rights proposals would put the UK in breach of its international obligations under the European Convention on Human Rights? That would be a shameful state of affairs.
Most recently, the Government whinged mightily about the interim measures—a sort of injunction—from the European Court of Human Rights to put a hold on Rwanda deportation flights until the UK courts substantively determine their legality. Similar interim measures have also been served on Russia—which is still subject to the jurisdiction of the court for another couple of months, even though it has been expelled from the Council of Europe—to stop the executions of the two British prisoners of war it is holding.
In fact, the Human Rights Act has provided justice and accountability for soldiers and their families in several ways. The noble Baroness, Lady Whitaker, mentioned the case of Corporal Anne-Marie Ellement. I would also mention the families of the 37 military personnel who died in Snatch Land Rovers, dubbed “mobile coffins’” as they were so unsuited to and unsafe for this role, in the Afghanistan and Iraq conflicts. The families used the HRA to challenge the Government and in 2013, the Supreme Court ruling that soldiers do not lose their rights when fighting overseas prompted an apology from the Ministry of Defence and a commitment to no longer use them.
In its inquiry on protecting human rights in care settings, on which the Joint Committee on Human Rights is about to report, our committee heard examples of people being cared for turning to the ECHR to seek respect for their needs through Article 2, on the right to life; Article 3, on protecting against torture and inhumane or degrading treatment; and Article 5, on the right to liberty and security. As I do not have time to discuss it further, I invite all noble Lords to read the report, which is about to be published.
An example not from the JCHR but from the British Institute of Human Rights is that of Kirsten, a mother who used the HRA to challenge inhuman and degrading treatment of her autistic son, who was held as a teenager in mental health hospitals under the Mental Health Act. He was subjected to mechanical restraint such as metal handcuffs, leg belts, being transported in a cage and long periods in a seclusion cell. As Kirsten said:
“My child was not a criminal, he was in distress, frightened and alone.”
She used the Human Rights Act to get meaningful change to her son’s care and treatment.
I have time only to mention that, in the criminal justice system, it was the Human Rights Act that enabled the victims of serial “black cab rapist” John Worboys to hold the police to account for their failures to investigate him. There are many other examples.
This rapid canter has, I hope, helped to demonstrate the relevance of human rights law to all the ordinary people of this country. I regret that the Government have refused to allow pre-legislative scrutiny on the Bill of Rights Bill, so that Parliament could expose its myriad flaws. Indeed—this is now public because the JCHR has published its letter—the Lord Chancellor has cancelled his agreed 20 July appearance before the Joint Committee on Human Rights to answer questions on the Bill. I hope we will at least get another date.
“it is unlikely that reform of the HRA would be on any political agenda, were it not for the potent advocacy of the most powerful media groups in the country”.
The noble and learned Lord pointed out that the convention and the Act had
“enhanced protection for journalistic sources”,
and seen
“a dramatic reduction in the level of libel damages, and the right to report on a much wider range of court proceedings”.—[Official Report, 19/5/11; col. 1494.]
The Government’s Bill of Rights is actually a rights removal Bill. The Council of Europe’s Commissioner for Human Rights found that the Bill could weaken human rights protections across the UK. How will the Bill reconcile with the rights available under the Scotland Act and the Good Friday agreement in Northern Ireland? The Scottish Human Rights Commission and many other organisations pointed out that the Government ignored their own independent review, which concluded that there was no case for widespread reform. The commission is quite clear that the Government’s Bill of Rights will undermine rights protections for people in Scotland. The director of Liberty, Martha Spurrier, said that the Bill would make it harder for people to access justice. My noble friend Lord Ponsonby of Shulbrede said the same thing on 23 June. Incidentally, I am a member of Liberty. I ask the Minister whether he could satisfy my questions on the issue of the Good Friday agreement and the Scotland Act.
Despite my general support for the convention, I should not be taken as applauding all the court’s decisions or as opposing all that is now proposed by way of what the Minister calls the recalibration of the legislation—there are aspects that need it. The noble Lord, Lord Sandhurst, mentioned the Aguilar case where the Supreme Court made a contentious decision on forced marriage—I dissented.
In this respect, I need mention only the so-called gays in the military case, in which my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood, then sitting in the High Court, noted the extreme limits created by the lack of the convention not forming part of domestic law, resulting in litigants having to pursue their claims in Strasbourg, where of course they won.
The Human Rights Act gave LGBT people like me and other minorities a vital cloak of protection that we never had before. It is a protection that is in operation every single day, both in the private and public spheres. The Government’s plan to repeal the Human Rights Act in the Bill of Rights Bill should horrify anyone concerned with the development and protection of human rights in the United Kingdom. It is an act of vandalism.
It should be realised that the Bill of Rights Bill is probably a staging post for the ultimate aim of some in this Government to remove the United Kingdom from the convention itself. Indeed, provisions in the Bill of Rights Bill, which will create a damaging disconnect between the domestic courts and the European Court of Human Rights, have the great potential for once again forcing LGBT people and others to go to Strasbourg when the UK courts are less responsive to protecting their convention rights. This will potentially result in a rapid rise in violations against the United Kingdom in the Strasbourg court, which I fear will be used by a Government of this type down the line to make the tired and obscene claim that a foreign court with foreign judges is meddling in our domestic affairs and that the UK should leave the convention system.
I hang my head in shame at the kind of country we are becoming; a country where once again rights are seen as unaffordable, and people are being depicted as a threat from which others should be protected. It is happening now. Look at trans women and trans men; we have seen the casual and unacceptable dehumanisation of an entire minority, with dangerous consequences. Ultimately, any civilised country is judged by how it treats the most disfavoured and how it treats those who seek sanctuary and justice. In this regard our country has been brought low and is sinking further.
I conclude by reminding noble Lords that the Human Rights Act brings rights home and that is ultimately good for everyone. I resolutely oppose taking away the vital protection of the HRA. We are all diminished and debased by such squalid intentions.
The defence of each human being should apply just as much to refugees, even to foreign criminals, and to individuals who have suffered at the hands of the Armed Forces as anyone else. Either they are human rights—universal and overseen by a supranational authority—or they are national rights. I sense that our Government may want to argue for both, when actually we are moving towards the latter.
Our adherence to the 1998 Act is a national choice that Parliament has made, but it is also a convention respected by successive Governments. We can all recall the huge frustration of former government Ministers at not being able to deport individuals they deemed dangerous, but their reaction was not to leave behind this well-established convention that bound us to a higher authority. A convention like this holds weight only so long as it is genuinely respected and supported.
My fear, along with that of many others I know, is that in altering or tinkering with the convention, a precedent is being set that would encourage future Governments to further tinker with our human rights legislation when it conflicts with other agendas. In the UK, Parliament is sovereign, yet it is that sense of long-established convention that prevents any overextension of its authority. Once that convention disappears, there is nothing holding back that sovereign power from acting in the sort of tyrannical manner that Schuman and many others were determined to avoid.