Conference Countdown 2015: Human Rights motion – we need to be careful not to throw the baby out with the bath water

As many will know, there is an excellent motion on Human Rights to be debated at the Bournemouth conference. I have set out the motion below this post.

I have one query which readers may be to help me with.

It pertains to this section of the motion:

Conference resolves to:
…C. Retain the Human Rights Act unless it is replaced with a Bill of Rights which incorporates and builds on those rights set out in the ECHR and oppose any attempts by Conservatives to introduce a British Bill of Rights which does not achieve this.

Where it says “Retain the Human Rights Act unless it is replaced with a Bill of Rights which incorporates and builds on those rights set out in the ECHR”, I am very unclear as to what would happen to section 6 of the Human Rights Act if the Human Rights Act were to be replaced by a Bill of Rights.

Section 6 of the HRA makes it “unlawful for a public authority to act in a way which is incompatible with a (ECHR) Convention right”. It would not seem automatic that such a stricture would be including in a Bill of Rights.

Therefore, at first reading, it seems necessary to have some additional wording in the motion to make clear that Section 6 of the HRA would be retained in the event of a new “Bill of Rights” (as distinct from a “British Bill of Rights”).

But I am not sure of this and would very much welcome any clarification in the comments section of this post below.

This is the full motion:

F34 Human Rights
Federal Policy Committee
Mover: Lord Marks QC (Parliamentary Spokesperson on Justice)
Summation: Jenny Woods

Conference believes that:

I. Human rights and civil liberties are fundamental to a fair, free and open society. They are vital to ensuring that the state is appropriately constrained and accountable for its use of power.

II. Human rights laws protect everyone, not only weak and vulnerable people, for example they have:
a) Stopped the state spying on citizens, supported peaceful protest and protected soldiers.
b) Helped rape victims, defended domestic violence victims and guarded against slavery.
c) Enhanced media freedom, protected whistle-blowers and provided answers for grieving families.
d) Preserved the right to a fair trial, prevented indiscriminate stop-and-search and protected minorities.
e) Helped elderly people subjected to physical abuse in their care homes and patients who suffered inhumane and degrading treatment at Mid Staffordshire NHS Trust.
f) Ended corporal punishment in schools and protected parents’ rights in care proceedings.

III. Liberal Democrats recognise the leading role the UK took in drawing up the European Convention on Human Rights after the Second World War, based on long-standing British traditions of civil liberties.

IV. Membership of the European Convention on Human Rights (ECHR) is particularly important for the UK because among its 46 signatories the UK is in a very small minority in not having its own written constitution.

V. The UK has a vital role in showing world leadership in the upholding of universal human rights, which would be wrecked by the UK joining the pariah states who reject international human rights agreements.

VI. While UK law enforcement and intelligence agencies have a vital role in protecting the public and investigating criminal activity, we must ensure the state does not over-reach the bounds set by the ECHR in pursuing those roles.

VII. Transparency and independent scrutiny of the activities of security agencies is vital.

Conference applauds the fact that Liberal Democrats in Government in the last Parliament blocked Conservative plans to repeal the Human Rights Act and the Conservatives’ Communications Data Bill (the so-called ‘Snoopers’ Charter’) which would have forced internet service providers to keep records of citizens’ texts, emails and every website visited. Conference notes that the previous Labour Government attempted to introduce similar legislation.

Conference is therefore deeply alarmed by:

i) The threat posed to human rights in the United Kingdom by Conservative plans to replace the Human Rights Act with a British Bill of Rights, which could weaken the protection of human rights in Britain, including the right to privacy and family life.
ii) The unwillingness of many Conservatives to accept the decisions of the European Court of Human Rights and to abide by the UK’s international treaty obligation under the Convention.
iii) The prospect that the UK may leave, or be forced out of, the ECHR if plans supported by some Conservatives are implemented, depriving our citizens of the protection of the Convention and the Strasbourg Court and destroying the UK’s capacity to lead on human rights internationally.
iv) The threat to the peace and stability of Northern Ireland posed by the potential repeal of the Human Rights Act, which implemented a key element of the Good Friday Agreement 1998 to incorporate the ECHR into Northern Ireland law.
v) Proposals included in the Queen’s Speech, which are similar to those in the Communications Data Bill, and which would lead to the bulk collection of information by internet service providers.
vi) The Conservatives’ opposition to recommendations in the report by David Anderson QC for more accountable security services, including judicial approval for requests to intercept communications.

Conference resolves to:

A. Champion human rights and the UK’s membership of the ECHR.
B. Challenge misleading accounts of the effects of the ECHR.
C. Retain the Human Rights Act unless it is replaced with a Bill of Rights which incorporates and builds on those rights set out in the ECHR and oppose any attempts by Conservatives to introduce a British Bill of Rights which does not achieve this.
D. Oppose measures called for by the Conservatives, such as the bulk collection of data by internet service providers, which would lead to a disproportionate level of surveillance of members of the public.

Conference also calls for:

1. A Digital Bill of Rights, to define and enshrine the digital rights of the citizen, including:

a) The principle that everyone has the right to control their own data.
b) The right to use strong encryption to protect privacy and security.
c) The principle that public bodies should only be able to invade an individual’s privacy where there is reasonable suspicion of criminal activity.

2. A new Freedoms Act, to protect citizens from excessive state power, including:

a) Measures to protect free speech and the right to cause offence.
b) Measures to prevent heavy handed policing with tighter regulation of ‘kettling’.
c) Tighter rules on the use of CCTV and facial images.

Applicability: Federal.

Mover: 7 minutes; summation of motion and movers and summation of any amendments: 4 minutes; all other speakers: 3 minutes. For eligibility and procedure for speaking in this debate, see page 7.

In addition to speeches from the platform, it will be possible for conference representatives to make concise (maximum one-minute) interventions from the floor during the debate on the motion. See page 7 for further information.

The deadline for amendments to this motion – see page 9 – is 13.00, Monday 7th September; amendments selected for debate will be printed in Conference Extra.

The deadline for requests for separate votes – see page 6 – is 09.00, Monday 21st September

* Paul Walter is a Liberal Democrat activist. He is currently taking a break from his role as one of the Liberal Democrat Voice team. He blogs at Liberal Burblings.

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16 Comments

  • Is there a problem? The term”British bill of rights” only appears as a reference to Conservative Party intentions.

  • Maybe I’m missing something. But isn’t this automatic?

    Suppose there is some new Bill of Rights. Then by definition it would be “unlawful for a public authority to act in a way which is incompatible with a right set out in the Bill of Rights”. Otherwise it would hardly be a law, let alone anything we could call a Bill of Rights.

    But if we require that the Bill of Rights “incorporates and builds on those rights set out in the ECHR” then “to act in a way which is incompatible with a (ECHR) Convention right” would be incompatible with a right set out in the Bill of Rights.

  • No mention in any of those categories of the human rights of folk arbitrarily taken off employment and support allowance ( ESA ) after a work capability assessment (WCA) – which was supported by most of the Parliamentary party in Coalition in January 2012 .

    Perhaps said (mostly ex)parliamentarians might like to reflect on statistics released yesterday (after several freedom of information requests had been dodged by IDS) by the Department for Work and Pensions (DWP).

    It was revealed that 2,380 people died between December 2011 and February 2014 within 14 days of being taken off (ESA) because a work capability assessment (WCA) had concluded they were able to work.

  • Malcolm Todd 28th Aug '15 - 11:37am

    Adam Casey 28th Aug ’15 – 10:51am

    I don’t think it is automatic. Part of the rationale for bringing in the Human Rights Act in the first place (given that we were already signed up to ECHR) was that if a body was not explicitly contravening a British law, the only legal recourse previously was to go all the way up to the European Court of Human Rights and get them to issue a declaration that our laws contravened human rights or were an inadequate protection. The HRA requires judges to interpret our laws in a way that is compatible with ECHR unless that is manifestly impossible, in which case I think they are required to make a specific declaration of that fact and point it out to parliament (whilst ruling on the basis of the law that exists).

    Similarly (not identically), without the clause Paul is talking about I think it would be possible for a court to take the view that some action of a public authority was in contravention of human rights but nevertheless there was no actual law against it. Though they would probably try to interpret it favourably.

    I defer of course to any actual human rights lawyers or public law experts out there.

  • >1. A Digital Bill of Rights, to define and enshrine the digital rights of the citizen, including:
    >a) The principle that everyone has the right to control their own data.

    How would LDV, for example, practically make this happen? How could this site be adapted in order that I can control my own data? It would mean making previous posts editable, deletable and access to all of the statistical data held (number of posts made, moderation interactions on posts). The second and third points ensures that the right for LDV not to know anything about who posts on LDV is enshrined in law. Obviously LDV is a fairly simplistic case, which makes me wonder if anyone is really thinking this stuff through or if this is more proposals that we all know will never have any real-world implication.

    I also note point c is in the classic Huppert tradition of digital rights, applying only to “public bodies” and not private companies, thus disempowering the state and creating opportunity for private business to replace it. Google spends a lot of money every year trying to persuade politicians of the merits of ideas such as these. When will we learn not to take the word of others on matters of civil liberties? Really disappointing, nothing has been learnt from all the mistakes. Apparently we’re “deeply alarmed” by things our MPs voted for and tried to persuade us of how great they were (e.g. DRIP), its all got a distinctly weaselly feel to it.

  • I believe in protecting the HRA (or an equivalent which includes its provision and adds/codifies) but it needs to be defended rationally. As we are talking about UK HR laws how accurate is:
    “guarded against slavery”
    Was there a realistic proposition since 1998 that the UK was planning introducing slavery?
    “Ended corporal punishment in schools”
    Another big claim, not sure it is accurate.
    Several things are in there that HR laws should do but I don’t think the laws we have are strong enough to do:
    “Preserved the right to a fair trial”

    Arguments should not over reach or when your opponents are picking holes in your arguments you loose credibility.

  • Adam Casey

    “Otherwise it would hardly be a law, let alone anything we could call a Bill of Rights.”

    Sounds like a fairly accurate description of what Grayling was trying to draft…

  • Richard Wingfield 28th Aug '15 - 3:46pm

    This is an interesting point, Paul. I’m sure it is implicit within the Motion that any proposal for a British Bill of Rights must not only incorporate the rights within the ECHR but also offer at least as strong protection of those rights. The Human Rights Act contains a number of means by which human rights are protected which are not mandated by the ECHR. For example:

    – A requirement that legislation be interpreted compatibly with the ECHR as far as possible (section 3);
    – A power for courts to declare primary legislation incompatible with the ECHR (section 4);
    – A duty on public authorities to act compatibly with the rights in the ECHR (section 6);
    – A requirement that Ministers make clear whether Bills they introduce into Parliament are compatible with the ECHR (section 19).

    None of these are required by the ECHR itself but are the means by which our UK legislation makes the rights in the ECHR practical and effective. I am inclined to agree with you that it should only be the rights which are maintained in any future Bill of Rights but the means by which the rights are made practical and effective. I don’t think it’s sensible to make explicit reference to the duty on public authorities in section 6 as then, for consistency, the Motion should also make reference to all the other aspects of the Human Rights Act we’d like to see maintained (sections 2, 3, 4 and 19 at the very least). What could be done is to have a “catch all” clause on enforcement and protection of the rights as well as the rights themselves.

    As an alternative, I would suggest the following – an amendment to Conference Resolves C so that it reads something like:

    “Retain the Human Rights Act unless it is replaced with a Bill of Rights which incorporates and builds on the rights guaranteed by the ECHR and contains as strong a level of protection and enforcement of those rights, and oppose any attempts by Conservatives to introduce a British Bill of Rights which does not achieve this.”

  • Denis Loretto 29th Aug '15 - 10:28am

    I hasten to say that I have no expertise in this area but I am a member of “Liberty” and one of the main reasons I joined was to support their defence of what they describe – accurately- as “our” Human Rights Act. Looking at this conference resolution I cannot see why we are contemplating support for replacement of the Human Rights Act by a “[British} Bill of Rights” at all. Surely it is naive to think that anyone advocating the “British Bill of Rights” approach has any intention whatsoever of introducing anything which ” incorporates and builds on those rights set out in the ECHR”. Not only will they try to water down such rights (including such things as “responsibilities” which will need to be observed before anyone can claim to have rights) but also many of them will regard such a change as the first step towards exit from the ECHR altogether.

    Can anyone tell me why the Liberal Democrat approach should not be simply to defend our Human Rights Act?

  • There is not much chance of changing the Human Rights Act in Scotland and Northern Ireland as it is tied up with Devolution, and anyway the SNP and First Minister of the Scottish Parliament and Scotland Nicola Sturgeon said any proposed unilateral change by Westminster would be open to legal challenge through the courts.

  • @Denis Loretto

    The HRA could be improved upon in several respects. Aside from the three changes that I have proposed in this article [https://www.libdemvoice.org/opinion-three-small-ways-in-which-a-british-bill-of-rights-could-improve-on-the-human-rights-act-1998-46842.html], we could require that any future amendments to the Bill had to be approved by both Houses of Parliament (that it to say, the Parliament Act could not be invoked to override the wishes of the Lords). This is already the case with any bill designed to extend the life of a Parliament, so it stands to reason that the same approach could be adopted vis-a-vis our even-more-important human rights laws. We could also insist on specific protections for trial by jury, habeas corpus and self-defence, none of which are present in the HRA. Basically, the HRA is unfinished business – and the motion is right to reflect that. Even it the Conservative proposals turn out to be poor, I hope that the Liberal Democrats will do more than just mount carte-blanche, tokenistic opposition after its inevitable second reading. At that stage, all of the above-mentioned amendments could be inserted, so it would be a crying shame to pass up on that opportunity.

  • Denis Loretto 29th Aug '15 - 3:01pm

    @Ben Boult

    Sorry but I think it is cloud cuckoo land to think this move to replace the HRA could lead to the sort of improvements you point to. We have 8 MPs facing a ruling Tory Party which is overwhelmingly looking for the opportunity to weaken human rights and a Labour Party which is at best ambivalent on the issue. I would rather have on our banner – “Save our Human Rights Act” than “Let’s go along with the Tories’ plan to replace the Human Rights Act in the hope that, against all they have said up to now, they may make it even stronger.”

  • Dominic Raab MP, the junior Minister responsible for drafting the Bill, isn’t your run-of-the-mill Tory MP though. He’s a passionate defender of civil liberties. Indeed, many observers were surprised that he was selected for the role at all given his historic willingness to defy the party line on such issues. Accordingly, I think he deserves a chance, particularly with the forthcoming consultation process, before we lambaste these reforms as a sham.

  • SIMON BANKS 29th Aug '15 - 7:34pm

    In reply to ChrisB, I assume that published material not including personal information would not be covered. Otherwise I could insist on the deletion of any comment I made on someone else’s blog. However, it does happen for people to find that the profiles they submit to online groups cannot be amended by them. This is the sort of thing Parliamentary drafting should clarify.

  • Hey Simon, I think you’re assuming a lot there. Nobody seems willing to debate digital rights, so we usually wind up with proposals that would make ridiculous legislation, but nobody cares because we know it’ll never be enacted. Certainly the line as it stands suggests that we’ll be fighting for the right for people to be able to delete comments off of someone else’s blog, that isn’t that far from the EU’s Right to be Forgotten ruling either. If we as a party really believed in this stuff we’d of started by practicing what we preach, LDV would undergo a data revolution so there’s a practical example of the sort of changes Lib Dems would want. Sadly, that’s not how things are, we’re just putting words on bits of paper with very scant consideration as to their implications. If we’d like to make the rules of the nation we should understand what policy might look like practically and the best way to do that is to try adhering to your own rules! It’s possible that after attempting such changes the LDV team might return to conference and tell them such policy is unworkable for some reason, or that it cost too much and that we’d be pushing that burden on to business – we’d have some proof that a policy can work practically before we propose the nation adopts our ideas! From that we might exempt certain organisations, or soften the rules for them. This is a process whereby we could start to craft rules that are practically ready for the real world, an alpha and beta stage for legislation (just like the creation and testing of any other logical framework).

    Paul announced this motion as excellent, but if it’s really so good, why isn’t he trying to live by its ideals? I suspect because it would be costly, impractical and require much more administration; yet nobody is talking about the practical aspects, sadly, because we all know they’ll never matter. I think it’s a terrible way to go about proposing policy, I’d like to see practical rationale (an explanation as to how a policy would be enacted practically) become a requirement for proposals. I’ve seen very little evidence that anyone else is of a similar opinion to me on this subject, so perhaps I’m completely wrong! 🙂

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