Human Rights Legislation

Today, I am launching our consultation on proposals to overhaul the Human Rights Act and replace it with a Bill of Rights. I thank Sir Peter Gross and the panel he chaired for conducting the independent Human Rights Act review—the report of which is published today—which has influenced and informed our thinking in this regard.

The Government’s proposals for a Bill of Rights will strengthen this country’s proud tradition of freedom, curtail abuses of the human rights system and reinforce the democratic prerogatives of elected Members in this House over the legislative process in respect of the expansion of human rights. Above all, we will restore some common sense to the system.

At the outset, let me reassure the House—this issue was raised earlier in oral questions—that the UK will remain a party to the European convention on human rights. As we have shown with the introduction of our Magnitsky regime for human rights abuses, we will continue to lead internationally in the championing of freedom around the world.

Our objective in overhauling our human rights legislation will be to change, reform and revise the domestic interpretation and application of the convention by the UK courts. Following the reforms to the convention system reflected in the 2012 Brighton declaration, we will assert the margin of appreciation, as appropriate, in the UK’s dialogue with the Strasbourg Court.

As I said, we have a long, proud and diverse history of freedoms in this country that stretches back to Magna Carta through the 1689 Claim of Right Act and Bill of Rights, the Slave Trade Act 1807 and the Representation of the People Act 1918. It is a tradition steeped in great thinkers such as John Locke, John Stuart Mill and Isaiah Berlin, and in the advocacy of great champions of freedom and human rights from Emmeline Pankhurst through to Violet Van der Elst.

As we take the next step in our country’s reforms, and as we look to the future, we can and, I believe, should confidently build on those traditions and values.

Our proposals will recognise the right to trial by jury, as it applies variably across the different nations of the United Kingdom in important ways, as part of the common law tradition of human rights. We also have the opportunity to reinforce the weight we attach to freedom of speech, a quintessentially British right—the freedom that grants all the others—that we have seen eroded of late by a combination of case law that has introduced continental-style privacy rules and the incremental narrowing of the scope for respectful but rambunctious debate in politically sensitive areas, which is something we in this House should resist both on principle and in the interest of effective decision making that comes only from a full airing of contrary views. Freedom of speech sometimes means the freedom to say things that others may not wish to hear.

While retaining the European convention on human rights, we will prevent the misuse and distortion of those rights that we have seen from time to time through elastic and innovative expansions that go well beyond anything the architects of the convention had in mind during the post-war settlement. Some of this has arisen from Strasbourg case law, and some has arisen from UK case law, and I make it very clear at the outset that my critique is levelled at the Human Rights Act and how it operates; it is not levelled at the UK judiciary, who have quite properly sought to implement legislation passed by this House.

I will give three examples of the problems we have encountered and a sense of how we can address them. Under our proposals, we will be able to prevent serious criminals from relying on article 8, the right to family life, to frustrate their deportation from this country. One example—the case law is littered with them—is the case of the convicted drug dealer who was also convicted of battery against his partner. He paid no child maintenance but, none the less, he claimed the right to family life to trump the public interest in his removal.

To give a sense of scale, because it is easy to cite one case or another and people will say it is not representative of the problem, article 8 claims now make up around 70% of all successful human rights challenges by foreign national offenders against deportation orders. Our proposals will enable us to legislate to curtail that abuse of the system, and hon. Members will have to decide whether they are for or against that proposition.

Secondly, under our proposed reforms we will be better able to protect the public in other ways by addressing our well-intentioned but, frankly, distorting jurisprudence. I cite the example of the Osman case, which has skewed the operational priorities of some of our major police forces. The ruling has required police forces to divert officers, resources and focus to protect criminal gangs from the threats they make to each other, which are of course time, effort and resources that could otherwise be prioritised towards protecting law-abiding members of our society.

Thirdly, these changes will help to deliver root-and-branch reform of parole proceedings, which hon. Members on both sides of the House raised with me in the aftermath of recent cases, including the case of Colin Pitchfork.

In these areas and others, our reforms will enable Parliament to act and, where necessary, assert the margin of appreciation with respect to Strasbourg while remaining party to the convention. We will achieve these objectives through carefully targeted reform under our Bill of Rights, which will revise and replace the framework provided under the Human Rights Act.

Our independent judiciary and parliamentary sovereignty are the cornerstones and the foundations of our democracy and, indeed, our success as a country. With that in mind, we will sharpen the separation of powers and reform the duty in section 2 of the Human Rights Act that requires UK courts to take account of Strasbourg case law, but has at various times been interpreted as a duty to match the Strasbourg jurisprudence, which is neither necessary nor desirable—[Interruption.] I see hon. Members shaking their heads, and I point them to the Ullah case in particular, but of course the case law has ebbed and flowed. That ebb and flow has created uncertainty, so it is right that we provide greater legal certainty by making clear the primacy of the UK’s own case law and primary legislation and the role of the UK Supreme Court, not Strasbourg, as the ultimate judicial arbiter when it comes to interpreting the European convention on human rights in this country. We will make it crystal clear that the UK courts are under no duty to follow Strasbourg case law, which itself does not operate a doctrine of precedent.

Next, we will replace section 3 of the Human Rights Act so that our courts are confined to judicial interpretation and are no longer—effectively, in practice—licensed by the Act to amend or dilute the will of Parliament expressed through statute. One of the consequences of the elastic extension of rights has been the incremental expansion of so-called positive obligations on public authorities by the courts, which are something that has no basis in the convention, as even a cursory reading of the travaux préparatoires to the convention—the negotiating history—will demonstrate. That was the case in the Osman ruling, which I referred to; it has had the much broader effect of skewing public service priorities and allocation of precious public resources. Our approach will provide a check on what is quite properly a legislative function that ought to be left to elected lawmakers in Parliament.

Finally in this regard, as we reinforce a clearer demarcation of the separation of powers, we will consult on plans for a democratic shield. This will help to promote meaningful dialogue with Strasbourg—which we achieved in cases such as prisoner voting, which hon. Members on both sides of the House will remember—by asserting the margin of appreciation where it is appropriate. It will recognise the proper role of Parliament in responding to adverse rulings from Strasbourg, but let me be crystal clear: hon. Members in this House must have the last word on the laws of this land.

Next, one of the consistent complaints that we hear from the public is that human rights can be subject to abuse. Our proposals will address this in a number of ways. We will introduce a permission stage, similar to that which exists in continental jurisdictions, including in the German Constitutional Court and indeed the European Court of Human Rights itself. This will bring an appropriate check by requiring claimants to demonstrate that they have suffered a significant disadvantage, which will help to prevent spurious or unmeritorious claims.

We can also do more to recognise that rights come with responsibilities, so we will reform the approach to remedies so that our courts give greater consideration to the behaviour of the claimant and the wider public interest when considering the compensation that may be paid out. That will give judges greater discretion to strike the right balance between claimants’ rights, their responsibilities and indeed the rights of others in our society when considering human rights cases. It is not right that those who have broken the law can then reach out and claim human rights, to claim large chunks of compensation at the taxpayer’s and the wider public’s expense.

Our proposals also recognise the diverse legal traditions across the United Kingdom, as well as the common heritage that binds us together. That is the linchpin of our success as a Union. We will consult with each of the devolved Administrations and across the UK to get that balance right. We want to guarantee protections across the Union in accordance with a common framework reflecting our common traditions, while respecting devolved competences.

In this country, we have a long and proud tradition of liberty, but we must actively cherish and nurture it. As we write the next chapter in that proud history, our proposals for a UK-wide Bill of Rights will strengthen our freedoms, reflect our legal traditions, curtail those abuses of the system, reinforce the separation of powers between the judicial and legislative branches and respect the democratic authority of this House, which—as so often in our history—has been a bulwark and the protector of our freedoms. I commend this statement to the House.

I am grateful to the Secretary of State for advance sight of his statement, but the truth is that this country’s criminal justice system is in crisis. There are record backlogs and delays in the Crown courts, drug use by prisoners is out of control, and just 0.6% of rape cases reported by women and girls ever result in a charge. If the Secretary of State really wanted to restore confidence in the system, his priority would be sorting that out, but he is choosing to fiddle with the Human Rights Act instead of stretching every muscle and sinew to make sure that rapists and violent offenders are banged up behind bars where they belong.

Every time the Government are in trouble politically, they wheel out reforming the Human Rights Act. It is a dead cat distraction tactic by a Government who do not know how to fix the criminal justice system that they have broken and are desperate to divert attention from the corruption scandals that they started. This is little more than an attempt to wage culture wars because they have surrendered in the war on crime and corruption.

The Secretary of State says that he will restore the role of Parliament and the UK courts in interpreting rulings from Strasbourg, but they already have those powers under the margin of appreciation that gives national courts freedom to implement convention rights on the basis of local laws and custom, so he is offering nothing new. He is telling us today that it is not necessary to leave the ECHR to deport foreign criminals, so why have his Government done nothing about that in their past 11 years in office? A quarter fewer foreign criminals have been deported in the last year than in the previous year, so it is clearly not the Human Rights Act that is preventing foreign criminals from being deported; it is this incompetent Conservative Government.

The Secretary of State has become so overexcited by his empty rhetoric that he has missed warnings from senior figures in the intelligence services telling him that his reforms could actually make it harder to deport foreign criminals, including terrorists. They warn that, if the Government go too far in raising the evidence threshold a person must prove to claim that deportation would disrupt their family life, that could affect the ability of MI5 and MI6 to provide evidence in secret to the relevant courts and lead to more cases going directly to the European Court, where evidence cannot be submitted in secret. Perhaps this is the level of detail that we should expect from a Secretary of State who does not know that the police can investigate crimes a year after they are committed—even in Downing Street—but is he really prepared to stand by as cases collapse and terrorists walk free?

I thank the hon. Gentleman for his response. I read his remarks, which were quoted in the early hours of this morning, before we had published our consultation and hence before he had read the proposals in it. He accused me of merely tinkering with human rights and, in the next sentence, of ripping human rights to shreds. That is an impressive feat of flip-floppng in a single press statement, but I think it highlights the fact that the Labour party, or at least its current Front Bench, has absolutely nothing to say about this issue.

The hon. Gentleman talked about rape. We have published scorecards and in the new year we will publish local scorecards, which will highlight various points where the challenge is so we can tackle it. We have published a consultation on a victims’ law. We are rolling out section 28 of the Youth Justice and Criminal Evidence Act 1999 to allow pre-recorded evidence from rape victims, and Operation Soteria is being piloted to bring about a better approach on the part of police and prosecutors. In fact, we are doing all the things that the hon. Gentleman mentioned. If he wants to be tough on criminals, as he claims, he should have supported our Police, Crime, Sentencing and Courts Bill. If he wants to come down hard on drug dealers and serious offenders whom we should remove from this country, he should back our proposals to allow them to be deported.

The hon. Gentleman asked about security, and seemed to warp even the ludicrous reports about it that have appeared in the papers. Let me be absolutely clear: the reforms that we propose would strengthen our ability to deport foreign national offenders, and the reason we have faced a challenge is Labour’s Human Rights Act. If he looks at the data—if he is remotely interested in the facts—he will see that. We are not talking about deporting someone back into the arms of a torturing tyrant. I would not support that, and my party and this Government would not support it. We are not talking about article 3, but we are talking about article 8 and the right to family life, which makes up 70% of all successful human rights challenges. Let me quote to him what the architect of the Human Rights Act, Jack Straw, said:

The Lord Chancellor has made an important and considered statement and I am particularly grateful that he paid tribute to Sir Peter Gross and the work of his committee. Their report, such that I have been able to read it, because it is a detailed one, is very thoughtful and stands head and shoulders above the rather trite comments we get in politics and in the media. I commend the report to anyone who is seriously interested in the topic.

Does the Lord Chancellor agree that it is important that he has confirmed, as Sir Peter’s report confirms, the reality that the Strasbourg jurisdiction has never been binding on UK courts in the way that the European Court of Justice’s decisions once were, that the margin of appreciation is well established in the jurisprudence and that, therefore, as we make sensible reforms, which is always proper and appropriate, this is precisely the sort of area ripe for pre-legislative scrutiny through a Bill? Does he agree that, when we make changes, we should take on board, in particular, that we should not inadvertently permit legislation to go directly to Strasbourg, which would undermine the protections that our own domestic procedures have in relation to issues of security and other sensitivity? Surely that is capable of being dealt with in our reforms.

My hon. Friend is absolutely right. He refers to the Independent Human Rights Act Review report by Sir Peter Gross, and I again thank Sir Peter and his panel for the extensive work they have done. They have not only shown us the challenges that the Human Rights Act has presented, but given us a range of options and influenced the approach that we have taken—they have certainly informed it. My hon. Friend is also right to highlight the confusion there has been with the case law of the Strasbourg Court, which does not operate, as many civil law courts do not, by adopting precedent; and the way in which, in the UK courts, particularly as a result of section 2, it has virtually been turned into a system of precedent. That is clearly an area where we can reform, and I think we can do it in a sensible way that respects the primacy of the UK courts and gives greater legal certainty for everyone involved.

I thank the Secretary of State for prior sight of his statement, which says that these reforms are necessary to

“curtail abuses of the human rights system”.

This Government regularly tell us that abuses of the system are the reason for all manner of reforms of legislation that simply does not suit them. I know from my experience of the Elections Bill recently that they rarely manage to produce anything other than anecdotal evidence—ironically, evidence that would not stand up in a court of law. So, this time, where is the empirical evidence for this enormous change and where can we see it? The Secretary of State says that the UK will remain a party to the ECHR, but, again, different Ministers give different answers, so will he confirm, once and for all, that every provision in the ECHR will be adhered to in full, without tinkering or equivocation? It takes some brass neck for this Government to invoke a history of upholding human rights, given that this statement comes hot on the heels of multiple dreadful pieces of legislation designed to absolutely trash those rights, be it the Police, Crime, Sentencing and Courts Bill, the Elections Bill, the Judicial Review and Courts Bill or, most appallingly, the Nationality and Borders Bill.

On Scotland, does the Secretary of State have any appreciation of how the Human Rights Act is fundamental to how the devolution settlement works and that any change to that would be a recasting of the UK’s constitution? I have no doubt that he will come back to me saying, “We will consult the devolved Administrations” but that is not enough. We expect—no, we demand—a guarantee that nothing will be done without the Scottish Government’s permission. The Scottish Government have made it absolutely clear that any attempt to erode the Human Rights Act will be robustly opposed. The Secretary of State may have scant regard for the democratically elected Government of Scotland, but he needs to understand just how much the people of Scotland value their human rights and how outraged they will be about this.

The hon. Gentleman asked about the evidence basis for what we are doing. That has been set out at some length in the independent Human Rights Act review, if he takes the trouble to read it, which was published today and chaired admirably by Sir Peter Gross. It is also set out in the pretty extensive consultation document that we have published. I have said it once today but I am happy to reaffirm that we will stay within the European convention on human rights. We will qualify areas such as article 8—[Interruption.] The hon. Gentleman says “Ah”, but he will know that paragraph 2 of article 8 invites qualification—it admits of it—in the interests of a whole range of reasons, including security. That will allow us to deport more foreign national offenders, in which we have been hamstrung by article 8 as it has been interpreted under the Human Rights Act. I am pretty sure that the people of Scotland, and the people across the UK, want us to be able to deport more serious, dangerous offenders from these shores.

The hon. Gentleman asked about the devolved Administrations. We are very sensitive to the devolved settlement. As he knows, the Human Rights Act is UK-wide legislation and a protected enactment under the devolution settlement, and ending it is therefore a matter for the UK Government, but we also recognise that the devolved legislatures can legislate on human rights in areas that are devolved to them, and that will remain the case. I look forward to consulting with the relevant devolved Administrations and with civil society in all the nations of the UK.

Would my right hon. Friend accept that this article 8 issue has been at the root of a great number of extremely unsatisfactory appeal decisions? Does he agree that, in the light of our sovereignty and our right to govern ourselves and have our own legal system in this context, the combination of that change and the Nationality and Borders Bill that we put through this House only last week will be of great benefit to the people of this country and immensely popular up and down the land in dealing with illegal immigration?

I thank my hon. Friend for the huge amount of forensic legal work and analysis he has put into this, as well as for his political and parliamentary contribution to the debate. He is right to say that the reforms will enable us to take measures to deal with the very real problems that his constituents and mine, and those in all four corners of the UK, are concerned about.

Article 8 is an interesting illustration. A lot of people say, “Well, we will still have to comply with Strasbourg”, and it is true that ultimately we will still have to accept the obligations under the convention, but the democratic shield will provide us with a proper means of stretching the margin of appreciation within the boundaries of the convention. Also, the case for article 8 expanded far more aggressively and energetically in this country, and it was later that the Strasbourg Court followed the case law in this country. So what we do is important, and the relationship is two-way. That is why the margin of appreciation, the dialogue and the provisions in the consultation document are so important.

I thank the Justice Secretary for his statement. It sounds as if he has come to the House with many of the complaints that all his predecessors since the Conservatives have been in government have made when they pledged to change the Human Rights Act, but those proposals have ended up amounting to nothing. We shall see whether he is able to turn his concerns into anything of substance. In the Joint Committee on Human Rights, we will obviously look carefully at his consultation and respond to the Gross review. Can I just say how pleased and relieved I am that he has made such a strong commitment to the European convention on human rights and all the rights protected therein, including article 8—the right to private and family life? I hope he will be able to confirm that he will do nothing to make it take longer or cost more for people to enforce their rights. He pledged to stand by the European convention. We cannot have a situation where those rights are available only for those who can afford to enforce them.

I thank the right hon. and learned Lady for her perfectly reasonable and thoughtful response. She is right that we will stay within the European convention. If she looks me up on the record, she will see that I have consistently said that the problem is not the convention, which is totally unobjectionable as a list of rights. She asked about Conservative politicians bringing these concerns to the House of Commons. That is right. There have been long-standing issues with the Human Rights Act, but it is not just Conservative politicians. I cited Jack Straw—there have been others—as one of the architects of the Act who has been seriously concerned and has made the case for reform. So there are, across the political divide, strong arguments for making a change. We have put proposals forward—that is the difference—including draft illustrative clauses precisely to stimulate the kind of debate we should have. I think that that answers not only the right hon. and learned Lady’s point, but that of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee, about pre-legislative scrutiny. By putting text out there for consideration, we can get right to the crux of these issues.

The right hon. and learned Lady rightly asked about remedies. We will, of course, retain effective domestic remedies, but what we will do with the permissions stage is have a check, which the Strasbourg Court itself has, on unmeritorious claims. It is also right that it has been a long-standing principle in this country that he who comes to equity must come to the court with clean hands. [Interruption.] She is nodding. I hope she agrees. So I think it is right for us to look at strengthening the provisions for the courts, within their discretion, to be able to take into account the wrongdoing of those who claim human rights.

As the leader of the UK delegation to the Council of Europe, which looks after the ECHR, I am pleased to hear that we will remain in the convention. I think that that is very important to us. The ECHR is itself badly in need of reform. Will my right hon. Friend join me in the work I am already doing to try to achieve a reform of that court, so that it better deals with the human rights problems across the whole of Europe?

I thank my hon. Friend, who has been a champion of the ECHR and makes, in a powerful and eloquent way, the case for trying to deliver better outcomes at international level. We want that as well, so I will work with him and support his efforts. We, of course, want to ensure that the Council and ECHR system, post the 2012 Brighton declaration, is properly implemented. We were told—my hon. Friend the Member for Bromley and Chislehurst, the Chair of the Justice Committee, is nodding—that the Court was entering an age of subsidiarity, which also picks up on the point made by the leader of the Labour party back in 1999. What we are doing goes with the grain of that, but we will also hold Strasbourg and the Council system to its word to see through those reforms.

It is the Justice Secretary who is contradictory, is it not? All the convention did was to be enacted in the Human Rights Act, so he cannot say he is keeping the convention and taking away the Human Rights Act. We are talking about evidence, not opinion. Will he publish a list of cases where British judges have not applied British law and have been hamstrung by European law?

I always enjoy engaging with the right hon. Lady on these subjects. She will see a list of the cases set out, the diagnosis, in both the IHRAR report by Sir Peter Gross and the consultation document. She will not have had a chance to read it cover to cover yet, but I encourage her to do so. She talks about it as if there is only one way to incorporate or implement the ECHR in UK law, but there is no one on either side of this debate who thinks that that is the case. We had proposals. I remember that when I sat on the Joint Committee on Human Rights there was consideration of a next stage of a Bill of Rights which took a different approach. We have seen in every Council of Europe member state different ways of enacting the ECHR, so I gently say to her that the convention and how it is interpreted and applied, in particular the operation of the separation of powers between the judicial, the Executive and the legislative branch, can be done in different ways and we want to sharpen that demarcation.

Does my right hon. Friend agree that recent court judgments appear to have extended privacy law in this country against the provision of section 12 of the existing Human Rights Act and without the debate or approval of Parliament? Can he say whether his reforms will strengthen section 12 to right the balance, and will he stress once again the importance of freedom of expression?