Tuesday, 2 June 2015

In Parliament ~ Bills ~ Human Rights (Japanese Knotweed)

"The Conservative Party has included in its manifestos since 2002 its desire to create a British Bill of Rights and to abolish the Human Rights Act. It has had a lot of time: it has set up committees and had the benefit of lawyers on the Conservative side advising it. Why is it that it cannot put together a coherent Bill?" - Baroness Kennedy of the Shaws QC

Bills before Parliament:

Parliament's website now has details of Bills currently under consideration  - Parliament Bills.   17 Bills are listed and 7 are government bills.  The latter have the greater chance of eventually becoming law.  The government bills are:

Charities (Protection and Social Investment) Bill [HL] 
Childcare Bill [HL] 
Cities and Local Government Devolution Bill [HL]
European Union Referendum Bill 
High Speed Rail (London - West Midlands) Bill 
Psychoactive Substances Bill [HL] 
Scotland Bill 

The House of Lords debate on the Queen's Speech
produced some very pertinent comment regarding human rights.  The debate may be read HERE.   Here are some extracts from the speeches of Lord Falconer (a former Lord Chancellor), Lord MacKay (another former Lord Chancellor), Lord Hope (former Deputy President of the Supreme Court), Lord Woolf (former Lord Chief Justice and Law Lord) and Baroness Kennedy QC.  The entire debate is well-worth reading. 

Lord Falconer - "The office of Lord Chancellor is not a job creation scheme for a valued colleague of the Prime Minister who has found ministerial office difficult.
Those who depend on our justice system—and there are very many—need to have faith in the person in charge. It is important here, and for our standing in the world, that the person in charge understands the United Kingdom’s values, and in particular the central importance of the rule of law and what it means. The system exists not for the lawyers, the politicians or the judges, but for those it seeks to protect.

In the other place on Thursday of last week, the Lord Chancellor was asked three times whether the Government would leave the European Convention on Human Rights. He refused to answer. I read in the Daily Telegraph this morning that the Lord Chancellor and the Home Secretary want to pull out of the convention, and the Prime Minister wants to stay in—hence the Lord Chancellor’s evasions in the Commons last Thursday. I back the Prime Minister against the Lord Chancellor.

In the same speech, the Lord Chancellor dismissed those who defended the current human rights laws as being like Fat Boy in The Pickwick Papers, who liked to make your flesh creep. Despite my best efforts, I will for ever be Fat Boy—on this occasion, fat and proud.

I wonder if the sisters of Anne-Marie Ellement would agree with the Lord Chancellor. She was a member of the Military Police. She alleged that she had been raped by two members of the Military Police, and thereafter she was bullied for making the allegation. She killed herself. At the first inquest there was an inadequate investigation of what had happened. Only by relying on the Human Rights Act were Anne-Marie’s sisters able to get the court to order a second inquest, where the truth emerged. That protection would go if the Conservatives get their way as set out in their October 2014 document; the new human rights law would not cover the military.

The US Government wanted to extradite Gary McKinnon to stand trial for allegedly hacking into US military computer systems from his bedroom in the United Kingdom. The evidence was clear that if he was deported to the United States, his health was so bad that he was at very severe risk, including the real risk of suicide. Only the Human Rights Act allowed the Home Secretary to stop his deportation. That is another of the particular aspects of the Human Rights Act that the Tory document of 2014 wishes to remove.

The Government say that they do support human rights, but that they should be British human rights. “British human rights” appears to mean, “the British Government’s view of human rights”. That means the Executive, since to a large extent it is the Executive who control the legislature. According to their October 2014 document, the Conservatives will reintroduce the rights in the same wording as the convention rights, but make it clear that there are aspects of those rights that they will specifically exclude. Examples include the prohibition on deportations if the deportee would be tortured or killed—those deportations could go ahead—or the application of human rights law to the military. An Executive able to pick and choose the extent to which human rights apply is an illusory protection. If we are serious as a country about providing our citizens with protection, we should not consider this course. The importance of there being an authority—not one that interferes with UK sovereignty but external to the UK Government—which defines the limits of human rights is that it prevents human rights becoming what a Government say they are.

One aspect of the Conservative attack on the human rights settlement as it currently exists is that the Conservatives say they want to prevent the European Court of Human Rights overruling our own courts. In his speech in another place on Thursday, the Lord Chancellor said:

“We want to preserve and enhance the traditions of human rights. There will be no diminution in that area; indeed there will be an enhancement of convention rights as a result of the changes we propose to make. But the difference”,

is that:

“We want to ensure that they are consistent with common law traditions and that our Supreme Court is genuinely supreme”.—[Official Report, Commons, 28/5/15; cols. 291-92.]

It is difficult to know what he means by “enhancement” when all the proposals so far produced by the Conservatives involve a reduction in rights.

Further, his reference to the Supreme Court being “genuinely supreme” betrays a misunderstanding of the current position. The UK courts are the final arbiters of what UK law provides, including human rights law. There is no appeal from what the UK courts say UK law is. The UK Supreme Court has been clear that it will not treat itself as bound by decisions of the European Court of Human Rights and has departed from European court decisions when it has disagreed with them. So both in form and in reality the UK Supreme Court is supreme, and if the European Court of Human Rights finds the United Kingdom to be in breach of the convention, the European court cannot overrule either the UK courts or Parliament. All the European court can do is to determine whether there is a breach of the convention—and if there is, it is for the UK Parliament to decide how to remedy the breach. I am glad that the Government have paused and I urge them to abandon these proposals. If they do not, my party, the Commons, this House, and maybe even Fat Boy Cameron will resist them.

The Government’s approach to the Human Rights Act is just one example of how they are willing to risk not just our standing in the world but the relationship between the nations of this country for narrow partisan interests ..... "
Lord MacKay (another former Lord Chancellor in the Conservative governments of Margaret Thatcher and John Major) preferred not to comment about the qualifications for the role of the present Lord Chancellor.  He went on to say:

"My comments on the gracious Speech will be confined to the proposal:

“My Government will bring forward proposals for a British Bill of Rights”.

This is an important and difficult subject which has received attention in this House since I joined it. I want briefly to mention the present position: the United Kingdom is bound by the European Convention on Human Rights and certain protocols to a statement of these rights and to implement decisions of the court set up under the convention in cases arising from this country. The noble and learned Lord, Lord Falconer of Thoroton, is not correct in saying that the ultimate decision on cases arising in this country rests with our Supreme Court. At the moment, it rests with the court in Strasbourg. I shall say something more about that in a minute.

Until the convention was incorporated into our law by the Human Rights Act, the text of the convention was not part of our law, although our courts had regard to it in deciding cases in which it was relevant. With the passing of that Act, the text became part of our law and our courts applied it in deciding cases in which it was relevant. The Act required our courts to have regard to decisions of the court in Strasbourg in reaching such decisions, as the noble and learned Lord said. The Act also conferred on our courts power to declare Acts of our Parliament inconsistent with the convention. The Act did not affect the obligation of the United Kingdom to implement decisions of the Court of Human Rights in Strasbourg, to which I have referred.

This position has now produced a difficult situation. The Strasbourg court has decided that our statute which denies persons serving a prison sentence the right to vote is inconsistent with the convention as supplemented by a protocol. A court in Scotland has declared that the statute is inconsistent with the convention and the Court of Appeal in England has agreed. Taking part in that decision, Lord Justice Laws gave a full account of what Parliament would require to do to implement the Strasbourg court’s decision. So far, Parliament has not taken any such action and has indicated no intention of doing so, so the obligation is in suspense in the sense that it has not been complied with. I must confess to a feeling of great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound.

It has been suggested in some quarters that we should adopt the procedure necessary to free the United Kingdom from its treaty obligation under the convention. That treaty, as was already mentioned by the noble Lord, Lord Marks of Henley-on-Thames, came into existence as the result of the way minorities had been treated in Europe in the preceding years. That treatment had been inflicted with the authority of the elected Government. The United Kingdom took an important part in setting up the treaty and its mechanism of enforcement, and I have little doubt that our leaders of that time were motivated by a concern for the citizens of other countries rather than those of the United Kingdom in particular. It would surely be extremely sad for the United Kingdom to withdraw from a treaty which we took such an active part in setting up with motives of concern for citizens of other states than our own.

I will make a suggestion for a possible way forward. We could seek an amendment to the convention to exempt from the obligation to implement the decision of the Strasbourg court where the court has decided that a statute of a member state contravenes the convention, and in that member state no court of that state has authority to set aside or modify that statute, if the legislature of that member state passes a resolution, which for stated reasons declines to implement the Strasbourg court’s decision. If such an amendment could be agreed, I venture to think that the effectiveness of the treaty would not be substantially diminished.

I regard the present situation as extremely unsatisfactory. That would be a possible way of recognising that at least in our country—and maybe in some other member states—the elected Parliament is sovereign and not subject to any kind of quashing order by the courts of this country. That of course has been the situation in our country for a very long time. The courts of our country, including the Supreme Court, have no power to quash or set aside an Act of Parliament. Instead of coming out of the convention altogether there may be something to be said for considering whether the convention should recognise the possibility that in some member states the Parliament is sovereign and not subject to having its Acts set aside or modified by the courts of that country. From that point of view there is something to be said for the view that if the courts of our own country cannot do anything about an Act of Parliament, why should it be so for the European Court of Human Rights?
Of course, the original idea was to seek an enforcement which would override the position of the elected Government, but it may be that nowadays the publicity attended by such a decision of the court in Strasbourg would be sufficient to afford protection for minorities, although so far, in this country at any rate, that particular minority of prisoners serving a sentence has not been protected in the way the court in Strasbourg thinks it should.

The proposal in the gracious Speech is for the preparation of a British human rights Act. So long as that is well done, I see no particular objection to it. The gracious Speech does not propose coming out of the convention on human rights. There have been suggestions of that in other quarters but all that the gracious Speech proposes is the formulation of a British human rights Act.

Difficulties with the Human Rights Act have been expressed in this House from more than one side. I refer in particular to the reference made by the noble and gallant Lord, Lord Craig of Radley, on Thursday to the difficulties in connection with the field of battle, and the application of the Act there. I do not know enough about it to say, but there may be some way in which that modification could be thought of. The idea that the Act would not apply at all would be pretty difficult, but I have certainly heard it said by noble and gallant Lords and noble Lords on other Benches than the Cross Benches that this is a difficult situation. These matters could be dealt with, and I venture to hope that they could be dealt with not in a partisan way but in a way that seeks to get the right solution to a difficult situation, done with deliberation."

Lord Hope (former Deputy President of the Supreme Court) said:

" ..... the proposal for a British Bill of Rights. There are many reasons for expressing concern about this idea, as well as grounds for relief that the Government have decided to refrain from legislating until further work has been done. I would simply make two points. The first is how one is to address the question of whether the enactment of a British Bill of Rights would be compatible with the devolution settlements with Scotland, Wales and Northern Ireland. I took part in a debate on the devolution statutes, a couple of decades ago I think. When legislative and executive power was being devolved, I recall that great care was taken to prohibit the devolved institutions from legislating or exercising functions in a way that was incompatible with the convention rights or with Community law. As I understood it, the reason was that it was thought necessary that this country should adhere to the treaty obligations in these two respects. Those obligations include, as the noble and learned Lord, Lord Mackay of Clashfern mentioned, the obligation under Article 46 of the European convention to abide by the final judgment of the European Court in any case to which this country is a party. It was thought, quite simply, that it was the responsibility of this Parliament to ensure that these obligations were respected in full when devolving legislative and executive power to others. One cannot be surprised about the opposition that is being voiced by the party in Scotland to the idea that the Human Rights Act should be departed from.  There is a real question here which I would like to draw attention to. It is being suggested in some quarters that the Scottish Parliament will have a veto on any alteration of the Human Rights Act as it affects Scotland under the Sewel convention, which is to be made formally part of legislation by the Scotland Bill. For my part, I rather doubt whether that argument is sound because the two crucial sections—Sections 29 and 57—which contain the prohibitions are not devolved. There is nothing, I think, in the Scotland Bill that is to come before us which will devolve those crucial sections either.

As I understand the structure of the Act, those sections are deliberately reserved matters that are in the hands of this Parliament. I think that the argument that there is a veto in the hands of the Scottish Parliament is misconceived but that is merely my opinion and I ask the Minister to pay careful attention to this because there will certainly be a challenge when the point comes, if it is to come.

The other point is that I suggest that the Government need to recognise the extent to which the convention rights are so deeply embedded in our law as a result of decisions taken both by this House in its judicial capacity and by the United Kingdom Supreme Court since those days. Respect for those rights is firmly established in our jurisprudence and all the comparative work that has gone into it. To get rid of all of that is rather like trying to get rid of Japanese knotweed, which we hear about at Question Time. It will be as difficult and therefore one does wonder whether all the effort that is going into this is really worth it ...."

Lord Woolf:  

My Lords, I have heard some excellent speeches today, particularly from the three new Members of this House who made their maiden speeches. I am also conscious that this is the first time that I have to consider the situation that arises from having a second Lord Chancellor who is not in this House and not a lawyer. From that point of view I welcome the fact that the new Lord Chancellor decided to invite further consultation on a matter of great importance to not only this country but all other truly democratic countries around the world—that is, the suggestion that we should take drastic action about the result of the remarkably successful achievement of the introduction into our domestic law of the European Convention on Human Rights.

That was achieved by the 1998 Act, with considerable success in practice. It was a huge step for this jurisdiction to take, because although we played a part in drafting the convention, it was also very much influenced by jurisdictions whose legal traditions were very different from our own. We always focus on the contribution we made to its drafting, but I am bound to say that if this discussion were taking place in France, they would be claiming equal credit and responsibility. That document was hugely influenced by not only a common law jurisdiction, but a jurisdiction different from ours—a civil tradition that was adopted around the globe, in the same way as ours had been. The provision was implemented by a short Act of Parliament, at a fairly late stage in its career compared with the situation on the continent, where many jurisdictions had been dealing with the convention directly, and we had to face up to the same problems as they had faced and dealt with very well.

One of the reasons why judges welcomed the Act when it came into force was the situation that existed in our legal system before that Act. In fact, we had two systems. Our citizens could be involved in litigation going before the European Court of Human Rights without those cases going through our courts at all, so their progress and outcome were not influenced by the contribution this jurisdiction’s judiciary could make. We did a very good job of absorbing that convention and getting the benefit it could provide: there was now one system whereby, before someone went to the European Court, they had to satisfy it that they had exhausted the domestic remedies through which our judges and lawyers could make a contribution.

The jurisprudence that came out of this country and out of the European Court show that both were benefiting from the process. Not all the decisions were ideal, and I, as a judge in this jurisdiction, could easily identify for the House certain ones in Europe that I thought were wrong. Equally, I was aware that, in its approach to the convention, this jurisdiction benefited considerably from the fact that, in dealing with human rights—fundamental rights of a global, rather than domestic, nature—different techniques were required. Here, I pray in aid what the noble and learned Lord, Lord Hope of Craighead, said in his admirable speech. He pointed out that since 1998, a great deal of water has flowed under the bridge and the process of consolidating the European convention and our own common law has gone hand in hand. One surprising thing about the European Court of Human Rights is that, in many ways, it is a common law court that approaches cases according to the facts, rather than the principle. It comes to a conclusion based on the facts and does not mind moving forward stage by stage, evolving the law in the way this jurisdiction does, which is one of the great strengths of the common law.

The fact that I am speaking so favourably about the European Court and the European convention does not mean that I am against the idea of a British Bill of Rights in principle. Like the noble and learned Lord, Lord Mackay of Clashfern, I can see nothing wrong in principle in having such a Bill. But if a British Bill of Rights is not currently necessary, and if I am right in saying that having two systems did not work, let us not go back on what we achieved through the 1998 Act unless there is very good reason to do so. I have been following as closely as I can the arguments in favour of a British Bill of Rights, which involve pointing out the shortcomings that are said to exist with the European Court’s judgments. I can only say that in my view, the case has not been made to justify taking the risks involved in starting again, when we have made so much progress since 1998.

That is why I very much welcome the wise decision that was taken to have further consultation. I listened to what the noble and learned Lord, Lord Falconer of Thoroton, said about what happened last Thursday in the other place, and I have read the relevant Hansard. I see no reason why this House should not think that, when it is said that consultation will take place, that means meaningful consultation, and that is what I urge. It could take many forms, but let us have meaningful consultation. If we do not, we will let down not only the citizens of this country, but the citizens of the many countries that depend on our influence, and who look to us when considering how to deal with the big issues we face today, many of which have at their heart the observance of the rule of law and the convention on human rights.

Baroness Kennedy QC:

 My Lords, I join colleagues in welcoming our new Lords and thank them for their contributions today. I look forward to hearing from them in the many months and, I hope, years to come.
Like others, I have grave concerns about the legislative programme which will be coming before this Parliament. Echoing fears expressed already, I think that one of my major fears is that the pursuit of an agenda to eviscerate public services, to play around with our membership of the European Union and to tamper with the rights and freedoms of our citizens by, perhaps ultimately, abolishing the Human Rights Act, will drive a deep wedge between parts of this kingdom. I also fear that that might accelerate its demise as a union.

The Prime Minister promised one-nation governance, but that means genuinely having to take into account what the election results meant. I know that people on the other side of the House are enjoying a victory, but they have to remember that it involved only 36% of the electorate—I remind Labour Members that in 1997 when the Blair Government got in, again it was on as low a section of the electorate. Governing as a one-nation party means speaking to the many and going beyond just the traditional Conservative voter.

I am sure that the defeat of Labour is giving a great deal of contentment to Conservative Members of this House, but that will be short term. It seems to me that the real message of the results of this election is that people were not very taken by the old political parties and their way of doing business. We have to recognise that the political class is distrusted by a large section of the population. That distrust will grow if the promise to govern for all of this kingdom is not kept.

Many people have expressed a certain amount of relief that there will be further consultation before legislation on a British Bill of Rights, but why has it taken so long? The Conservative Party has included in its manifestos since 2002 its desire to create a British Bill of Rights and to abolish the Human Rights Act. It has had a lot of time: it has set up committees and had the benefit of lawyers on the Conservative side advising it. Why is it that it cannot put together a coherent Bill?

I sat on the commission set up by the coalition Government on whether there could be a British Bill of Rights and we consulted. If consultation is what is wanted, let me tell you that we consulted up hill and down dale only a few years ago and further consultation is not necessary. The Government needed to pause because of the complexity of what is involved and because, as described by the noble and learned Lord, Lord Woolf, a lot has happened since the Human Rights Act came into being. The developments that have taken place have been important and it will be hard to unravel them now. The plan for a British Bill of Rights was ill conceived, incoherent and, in my view, dangerous.

The impact on Scotland should not be taken lightly. When we created the Scotland Bill at the initial time of devolution, we said that change would involve the consent of the people. Having consulted in Scotland over the possibility of a British Bill of Rights, it is clear that it would be seen as the arrogance of Westminster. The Scots are content with the incorporation of the European convention and do not want it interfered with.

We also consulted in Northern Ireland. While I smiled when the noble Lord, Lord Trimble, suggested that all would be involved would be putting in a small amendment suggesting that there had to be compliance with the British Bill of Rights rather than the European Convention on Human Rights, that small amendment would be highly contested by a large number of those persons who signed up to the Good Friday peace agreement. I suspect that the non-dominant community would find that hard to swallow.

We also have to think about its impact on foreign policy and our treaty obligations and the effect it would have on our reputation worldwide. Britain is a beacon for the rule of law imbued with commitment to human rights. I say this as chair of the International Bar Association’s Human Rights Institute. Britain is looked to around the world for guidance and inspiration on these matters. I worry that this has been kept in the back pocket as a card to be played if the referendum goes towards maintaining the European Union; that it is to give red meat to Eurosceptics.

Others have spoken about the many misconceptions about the European Court of Human Rights and its role. It is not a final court of appeal. Our Supreme Court is exactly that—it is our Supreme Court. I am not going to rehearse what other people have said. Our constitutional situation is serious and we will make it more serious by interfering with some of the things which actually are about empowering citizens.

The triumph of the Scottish National Party north of the border in the general election is not fully understood by many people in this House and elsewhere. It is not understood, certainly, by sections of my own party nor by the Liberal Democrats or the Government. Many people voted for the Scottish National Party but not because they are nationalists; it was not about disliking their cousins in England or “Braveheart” intoxication. If you feel that, you are deluded.

The people of Scotland voted the way they did as much from a feeling of disconnect with central Government here in Westminster as from nation-bound interests. They felt that their traditional party MPs had taken them for granted for too long. People should reflect on that, rather than throwing stones at those who ended up winning the election. The Scottish people are not stupid. They felt that they were not getting responsive, accountable government, and that is what they voted for. It was not about whether they thought they would be richer or poorer, but whether their society might be fairer. When considering one-nation governance, we should remember that they were concerned that their tradition of social justice was under threat. I urge the Government and all the parties represented in this House—because the Scottish nationalists are not here—to realise that that is what the majority of Scottish people were concerned about.

I will not rehearse the arguments about what devo-max will involve, and so on, but I do want to say that we have to have much more serious discussion about constitutional matters. I have been involved in arguments about reform and the need for a different kind of voting system for almost 20 years. I chaired Charter 88 and the Power inquiry, and they were saying the things that I hear in opposition: the light goes on, and people suddenly realise that perhaps the voting system is not fair, that they want decisions to be made closer to where they live, and that sometimes systems are not working in a modern and sensible way.

I, too, want to endorse the creation of a convention. I hope that when the Government say that they will govern for all of this kingdom, they do so in a positive spirit. There was negative campaigning, and the negative way that Scots felt they were talked about really went to their hearts. We cannot go on like that. I hope that we start having a conversation about why this union is a good thing, and why the Scots, the Irish and the Welsh, as well as the English, play a vital part in creating it."

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