Jim Wallace: The Human Rights Act gives us the ability to challenge the state on ordinary day to day issues

Yesterday was Lib Dem Opposition Day in the Lords and we chose two subjects very close to our heart. We’ve already covered the debate led by Paddy on foreign affairs.  Jim Wallace led one on human rights and civil liberties. He outlined how he frustrated he felt as a minister on the wrong side of a human rights judgement but that made him no less committed to the principles of the Act. Here’s his speech in full.

My Lords, for decades, as a Liberal and Liberal Democrat candidate and MP, I supported campaigns to incorporate the European Convention on Human Rights into our domestic law. “Bringing Rights Home” was our call, and so understandably I welcomed the passing of the Human Rights Act 1998. However, it never occurred to me during all these years of campaigning that I would be the first government Minister in the United Kingdom to be on the wrong end of a decision under that Act—yet that is what happened on 11 November 1999.

As Justice Minister in the newly established Scottish Government, I had inherited a sheriff court administration which relied on temporary sheriffs to keep the system in working order. However, the Scottish Appeal Court ruled that because the Lord Advocate was involved both in their reappointment, or not, and was also head of the Public Prosecution Service in Scotland, temporary sheriffs could not be regarded as sufficiently independent of the Executive that an accused might have a fair hearing before an “independent and impartial tribunal”. As a result, I was forced to suspend every temporary sheriff in Scotland overnight.

I am not going to pretend: on that day I would much rather that the case had been won. Losing put significant pressure on resources and made for a time the operation of our sheriff courts more difficult. But here is the thing: in the cold light of day, the court was right. What was happening was wrong and, because of the Human Rights Act, it was put right. For all the difficulties this decision caused me, officials and, indeed, the public, I would rather live in a country where there is such a human rights check over decisions and actions of Ministers and the Executive than in a country where Ministers and the Executive can ride roughshod over basic human rights. This, I believe, shows the value of the Human Rights Act. As Liberal Democrats, we on these Benches are instinctively suspicious of government. We believe that the state has the power to improve people’s lives—but, equally, the power to damage them. Such power should not operate in a vacuum. There must be a check on the ability of the state to wield its power, even when its actions are carried out with the best of intentions, and there must be a check to protect individual citizens against the arbitrary use of state power.

This debate is about the challenges facing the culture of human rights and civil liberties in our country. My experiences as a Minister both in Scotland and in the coalition Government have given me some understanding of those challenges and the difficulties of balancing interests that sometimes compete with human rights and civil liberties, not least the need to keep the public safe. I do not pretend that it is always easy. The appalling events in Tunisia last Friday and our response to them have once again thrown into sharp focus the challenge of balancing liberty and security in an age when terrorism stalks the globe. The Prime Minister rightly argues that, armed with our values of justice, democracy, liberty and tolerance, we will prevail over hateful intolerance and its evil manifestations. But the challenge is to ensure that in doing so we do not undermine the very values that we cherish and seek to uphold.

The Home Secretary said in the House of Commons last week—it is pleasant to be able to agree with her—that,

“security and privacy are not … a zero-sum game”.

It is incumbent on the Government to consider issues of privacy and liberty when promoting security and on those on our Benches to reflect the need for this balance and ensure that when we are promoting liberty and privacy we also take account of the interests of security.

I am sure that in this debate we will hear contributions about the communications data Bill—the so-called “snoopers’ charter”. All I shall say on this subject is that I can assure the Government that if they seek to introduce intrusive new laws, rhetoric and assertion by Ministers will not be a substitute for hard evidence that such measures are necessary and proportionate, not least given the recently published report by David Anderson QC, which found the operational case for a number of the proposals far from persuasive.

The ability to challenge the Government is a core part of our liberty and democracy, and one which we must seek to uphold. The European Convention on Human Rights may have been born in the aftermath of the war against fascism and in the face of the spread of communism, but it took the 1998 Act to allow people in Britain to vindicate their convention rights in British courts. I believe that that is something we should cherish and uphold. Let us be clear: when I say that the Human Rights Act gives us the ability to challenge the state, I do not mean in some sort of philosophical debate; I mean on ordinary, day-to-day issues that people often take for granted.

The right to life is not just about life being protected by the state. The right has ensured justice for the families of victims of domestic violence and the families of hospital patients who were not properly supervised and who then tragically took their own lives. The prohibition on torture has ensured that the use of restraint on an older woman in hospital was able to be challenged and that authorities are accountable for failing to protect children who are being abused. The right to liberty and security has ensured that people with mental health problems are not unlawfully detained.

The right to a fair trial or hearing was used by a mother who had suffered mental health problems and had her child taken into care. The court found that the council’s attempts to delay her re-establishing contact with her child and its failure to notify her that the child was already placed with an adoptive family constituted a breach of her right to a fair hearing. The right to respect for private and family life has often been lamented in the press as a block to deporting foreign criminals. But this right helped a couple who had been married for 59 years to live in the same nursing home when their local authority threatened to move one of them to a nursing home too far away for the other to visit. It also secured proper support from a local authority for a child with Down’s syndrome.

Freedom of expression was perhaps most famously protected by the European Court of Human Rights reversing a unanimous decision of the Judicial Committee of your Lordships’ House in the early 1970s and thus allowing the Sunday Times to expose the thalidomide scandal and pave the way for compensation for its victims and their families. Freedom of assembly and association has protected the rights of people to join a trade union and engage in union-related activities. The right to marry has ensured that the needs of transgender people are accommodated by requiring the Government to issue a new birth certificate. The prohibition on discrimination ensured the right of unmarried couples to adopt and has been used in numerous cases to protect disabled people.

I cite these cases because they are examples of what human rights mean in practice—what our convention rights allow us to protect when the state overreaches. These are examples of how we reflect our British values in the country we wish Britain to be. Yet the Government have made clear their intention to do away with the Human Rights Act and to replace it with a British Bill of Rights. The question is: what values will such a Bill of Rights enable or secure that are not already enshrined in the Human Rights Act through its incorporation of the European Convention on Human Rights?

Are there rights which we currently enjoy that the Government are keen to strip out of a UK Bill of Rights? Surely it cannot be the protection of freedom of speech or the right to a fair trial, or the right of religion and freedom of assembly, or the right to a private life. Is it the right to free elections that they fear or the right to protection of property, as they pursue their attempts to sell off housing association homes? Which one of these freedoms and rights would not be in a Conservative Bill of Rights? If the answer is that they would all remain, why are the Government so keen to abolish the current Act and put into jeopardy the jurisprudence and case law that have gone with it?

Perhaps the real problem is not with the Human Rights Act but with the fact that it gives United Kingdom citizens a pathway to the Strasbourg court, with the ability to challenge—in Europe, no less—a decision made by government. The right to take a case to Strasbourg will not be revoked by the repeal of the Human Rights Act. Citizens were taking cases to Strasbourg before 1998. The whole point of the Act was to make the convention rights more readily justiciable in our domestic courts. Is it really the Government’s intention to cut off any redress by appeal to Strasbourg, especially when under Article 35 of the convention, the United Kingdom has undertaken not to hinder in any way the effective exercise of this right? What is the Government’s view on Article 46 of the convention, which imposes on all states parties a binding international obligation to abide by final judgments against them?

Repeal of the Human Rights Act would not alter the international obligations that the United Kingdom has undertaken.

The last published edition of the Ministerial Code states as a general principle the overarching duty on Ministers to comply with the law, including international law and treaty obligations. If, as suggested in the Conservative manifesto, the Government wish to curtail the role of the European Court of Human Rights, is the Prime Minister prepared to suspend that part of the Ministerial Code in respect of the European Convention on Human Rights, with all the consequences that would have for a Government who protest the importance of the rule of law—or would the Government renounce the convention, and with it our membership of the Council of Europe?

Often in your Lordships’ House, we talk about Britain’s soft power as an influence for good in the world, but the opposite side of that coin is that if we are backsliding, we become an influence which justifies others’ injustice and intolerance. If hitting the pause button on the Human Rights Act reforms is perhaps a consequence of the Government waking up to the international ramifications of their objectives—on the basic ideal of the rule of law and its international and diplomatic consequences—it should also be an opportunity to consider the domestic consequences of ill-thought through proposals, not least in relation to the devolved institutions of the United Kingdom.

In particular, Northern Ireland has an important relationship with the Human Rights Act and the European convention. The Good Friday agreement enshrined a fundamental role for the ECHR in moderating the values of plurality and equality in Northern Ireland. Human rights protections were a central feature of the peace process; they cannot lightly be brushed aside. There are also international implications, specifically in relation to our relationship with Ireland. The agreement was incorporated as a treaty between the United Kingdom and Ireland and lodged with the United Nations. Article 2 of the treaty binds the United Kingdom to implement provisions of the agreement which correspond to its competency, and paragraph 2 of the “Rights, Safeguards and Equality of Opportunity” section of the agreement states:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights … with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency”.

That commitment was given legislative effect through the Human Rights Act. I fear that the United Kingdom’s international standing and its relationship with Ireland could suffer grievously if its obligations under the Good Friday agreement were not observed. Pulling Northern Ireland out of the European convention would violate international law and surely have severe ramifications for the peace process.

Also, the plans may well be stopped in the Scottish Parliament or the Welsh Assembly. The Scotland Act and the Government of Wales Act define the legislative and executive competences of the respective devolved institutions by reference to the convention rights, as defined in the Human Rights Act. Adam Tomkins, professor of public law at Glasgow University, has speculated on whether a legislative consent Motion would be needed in the Scottish Parliament to repeal the Human Rights Act. He went on to take a clear view that if any British Bill of Rights contained new rights which impinged upon the exercise of the Scottish Parliament’s legislative powers or the Scottish Ministers’ executive powers, a legislative consent Motion would be needed.

Professor Tomkins, for whom I have the highest regard, is now a constitutional adviser to the Secretary of State for Scotland. Is it the Government’s view that legislative consent Motions will be necessary? What happens if they are not forthcoming? Could we have a position where citizens’ rights in Scotland are different depending on whether the public authority exercises devolved or reserved responsibilities? It has the making of a dog’s breakfast and is perhaps a reflection of a policy that was not properly thought through.

What are the real motivations in embarking on a course fraught with constitutional danger? Is it part of a wider move by the Government to make it more difficult for those with legitimate reasons to challenge them? Why are the Government so scared of such challenges? Could it be because the Government fear that a number of their polices coming down the track—cuts in working-age benefits, cuts in disability benefits and the compulsory sell-off of housing association homes—may well be susceptible to challenges in the courts? The Human Rights Acts allows us to challenge the decisions of the state, and I would be interested to hear what guarantees the Minister can give us today that the proposed Bill of Rights would continue to allow such challenges to the same extent as we have today.

This is a fight, or a debate, that we would rather not be having. The contract between the state and the public needs to be retained and enhanced, not diminished or swept aside. Rather, we should look to the future and to ensuring that our fundamental rights and liberties are protected in a way that is compatible with the new technologies of the day. We should be looking to the creation of a new digital Bill of Rights that will help safeguard and protect our citizens online and ensure that the same rights enshrined in our law in 1998 hold true as we enter a world of new technology that does not respect boundaries.

At one level, the Human Rights Act is simply a vehicle for bringing convention rights into our domestic law, but it has become more than that. It is woven into the devolution settlements and is widely seen as symbolic of our country’s commitment to openness, tolerance and the rule of law, to which even government is subject. I am sure that the Liberal Democrat Benches are not alone in this House in being unable to comprehend what purpose the Government think they are serving by abolishing such a fundamental Act, which is well understood by the courts and respected around the world. The only apparent rationale is to replace convention rights with a British Bill of Rights which curbs existing rights or to exclude resort to the European Court of Human Rights, putting the clock back almost 50 years with all that that entails in terms of reneging on international obligations.

It is often said that eternal vigilance is the price of liberty. The Government should be in no doubt that we on these Benches will be especially vigilant. I beg to move.

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One Comment

  • Nick Cotter 7th Jul '15 - 9:40pm

    1. What about LASPO ?
    2. What about criminal legal aid cuts (to the bone) ?

    Nick Cotter, Crown Court Solicitor Advocate.
    Solicitor of 20+ yrs standing.

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