Beith and Howarth on the Bill of Rights (UK)

• [Jun 25] Alan Beith (Berwick-upon-Tweed): I WARMLY welcome the report for its excellent handling of where we have got to on human rights and for clearly setting out so many of the issues.

I do not agree with all its conclusions, but I welcome its general emphasis and many of its specific conclusions. It is an extremely useful piece of work, from which hon. Members on both sides of the House can benefit.

Let me start by referring to two approaches to the Bill of Rights that worry me profoundly. One has generally come from members of the Conservative party and particularly from Eurosceptics in it, who cannot quite get their heads around the fact that the European convention on human rights is not a product of the European Union, but a much earlier product of the Council of Europe, which was signed by a Conservative Minister many years ago. That line of argument suggests that if we had a UK Bill of Rights or a British Bill of Rights-a lot lies between those two phrases-we could somehow diminish the impact of the European convention on human rights. The Committee's report makes it absolutely clear that that is not the case, and nor is it the Government's position that that should happen. I am surprised that I still hear that argument from some on the Conservative Benches.

• Simon Hughes (North Southwark & Bermondsey): I am sorry to intervene so early on my right hon. Friend, but I want to support what he says. The Conservatives are entirely inconsistent if they say or imply that that is their view, because they are among the first to ask for the rights of British citizens to be upheld in other countries, including on our continent. The best way of absolutely guaranteeing that those rights were upheld over the past 50 years has been the European convention, which has applied across almost all countries in almost all its clauses.

• Alan Beith (Berwick-upon-Tweed): I am grateful to my hon. Friend. I should say that I do not attribute that view to Mr. Burrowes, who is the Conservative spokesman. Indeed, I look forward to hearing from him later, when I rather believe that he will set out a much clearer, more coherent and more acceptable position.

The other position that I want to address comes from Ministers and is a rather new Labour position. Again, it is one that the Committee dispenses with almost, although not quite, entirely. It links rights and responsibilities and introduces the concept that we could have a Bill of rights and responsibilities. The Committee comes down firmly against the idea of calling the Bill a Bill of rights and duties or a Bill of rights and responsibilities. In the report, however, the Justice Secretary is quoted as having set out two purposes for a new Bill of Rights. One is to put rights in the context of responsibilities-that is a primary purpose of the Bill. The second is to add economic and social rights, and I will come to that in a moment. First, however, I want to concentrate on the business of putting rights in the context of responsibilities.

We have the right Minister with us today, because he has been very clear in his statements on this subject, as he is on many subjects. He has made it clear that rights

"cannot be made contingent on the prior fulfilment of responsibilities",

and that phrase is in the report. The Government response says):

"This is indeed the Government's view."

However, it goes on to say):

"The fact that we all have rights is no reason for people not to exercise them responsibly or for the Government not to encourage responsible behaviour so that the rights of all can be respected. "

Fine. We all agree with that. I have spent quite a lot of my life trying to persuade people to behave responsibly in various ways, including politically. In that respect, I have encouraged people to carry out their political duties by voting and taking an interest in politics. I have also been delighted to support the numerous bodies and people in my constituency who do so many marvellous things to contribute to civil society and to the welfare of others. It is quite right that the Government should encourage responsible behaviour at the minimal level of not interfering with the rights of others and at the much higher level of actively contributing to society. However, that is not the same as putting rights in the context of responsibilities, which is a wolf in sheep's clothing.

Of course it is desirable that people should behave responsibly. If people break the law, they are liable on conviction to lose part of their freedom, whether through a prison sentence, a community punishment or a fine. However, should rights be dependent more generally on responsible behaviour? Clearly, if everyone behaved responsibly and considerately, it would be much easier to maintain a free, harmonious and comfortable society. It is highly desirable that people should behave in that way. However, there is no way in which we can calibrate what rights individuals should have according to how responsibly they live, except by the due process of law.

Where the law can reasonably be applied to control behaviour that is a threat to the freedom of others, as in the case even of driving without due care and attention, there can be a defined range of penalties, including loss of the right to drive a car. However, no one seriously suggests that a persistent failure to check on the health and welfare of neighbours, a refusal to contribute to the social life of the community or an unwillingness to engage in voluntary activity can be dealt with through some corresponding diminution in the right of free speech, the right of free assembly or the right to a fair trial. Indeed, that conjures up the idea of a people's court or village soviet, which can decide that some of the residents are not fulfilling their social responsibilities enough to deserve certain of the rights that the rest of us have hitherto taken for granted.

If the Government's proposal is more than mere rhetoric, it may be a misleading and potentially dangerous attempt to diminish freedom. Those who toy with the concept should explain how they believe that taking on responsibility can become a condition for the enjoyment of rights. Someone can be a bad-tempered recluse if they want to be. Society would benefit if they took a different approach to life and helped to run the scout troop, but doing so cannot be a condition for the possession of rights or the exercise of freedom.

The Committee is pretty firm in its attitude to that, except that it gives a little ground in the end by suggesting that it might be beneficial to include civic duties in the preamble. If that is no more than mere rhetoric, I wonder whether it is justified. If it creates any sense that rights can be made conditional on kinds of behaviour that are not regulated by law, it could be pernicious and dangerous. That is a most fundamental issue, on which I want to be even clearer than the Committee.

On social and economic rights, I remain something of a sceptic, although not about the concept that people have a right to housing or to access health care. Indeed, one of liberalism's fundamental features is that it was increasingly widely defined to recognise that the possession of civil liberties was insufficient to guarantee freedom.

People would not be free if they were prevented, by lack of access to health care, or by total lack of means, from exercising any freedom at all. So, as a Liberal, I am no stranger to the notion that rights in the economic and social sphere are very important and are fundamental to people's enjoyment of freedom; however, it does not necessarily make those rights suitable or effective candidates for inclusion in a justiciable Bill of Rights.

I have the greatest respect for Albie Sachs, and not least for the way his court in South Africa has dealt with some of the issues that we are discussing; he and his colleagues must adjudicate in some matters of economic and social rights. It is very apparent from the history of South Africa why it should have been seen as so important to include those in any statement of the rights that people would have once apartheid was brought to an end. However, that still does not demonstrate that, to refer to his already-quoted words,

"a country which does not include social and economic rights in some form in its Bill of Rights is a country which has given up on aspiration".

That is nice phrasing, but there are other ways of aspiring, and expressing aspiration, than by giving people the impression that a justiciable right will enable them to have the housing they need, the employment opportunities they deserve, or the health care that could make such a difference to their lives. One of the key reasons for that is that all those things involve essentially political decisions about resources that Governments must make, and politicians must take responsibility for their failure to provide adequate care in certain kinds of ill health, or adequate employment opportunities. Those are, rightly, major political issues, but they are difficult to make justiciable, and they put courts in a difficult position.

Andrew Dismore (Hendon, Labour)

We are not arguing for fully justiciable rights in that context. Our bull point is the progressive realisation of the rights, as set out, for example, in the international covenant on economic, social and cultural rights, which is part of the trio of important UN treaties on the matter. We are saying that the Government's obligation should be progressively to realise those rights, and report to Parliament on progress, in a way similar to what is proposed in the Child Poverty Bill.

• Alan Beith (Berwick-upon-Tweed): The distinction that I am drawing is between a justiciable statement of rights-a declaration of rights or Bill of Rights-and an aspirational statement of things that Government should achieve and do. That may, of course, in some respects have the force of law, if it is incorporated in legislation because parts of it have been found capable of being given a legal framework; that is of course sometimes done in the slightly roundabout way of giving public bodies the responsibility to set targets for achieving certain things, so that the question whether they have reasonably gone through the targeting process becomes potentially justiciable.

If we do not preserve the distinction, there is a danger of weakening the significance of the rights that are justiciable, and misleading people into thinking that both kinds of thing can be treated the same.

• Simon Hughes (North Southwark & Bermondsey): On a postscript to my right hon. Friend's point, one of the difficulties of adding social and economic rights is that even if the courts might uphold such claims, it is, by definition, probably for the state to deliver them. That creates the risk of undermining the authority of the court, and therefore the Bill of Rights, in relation to the citizen. Civic and political rights can always be enforced, and, relatively, cost much less.

• Alan Beith (Berwick-upon-Tweed, Liberal Democrat): My hon. Friend develops precisely the point I was making, in a very helpful way.

The report deals with a number of other important issues, such as the involvement of Parliament in the derogation process. That is an extremely valuable contribution to the debate, which we should pursue. It also deals, as was mentioned in an earlier exchange, with devolution issues, and the fact that some rights that some people think would be appropriate in a Bill of Rights for England and Wales do not apply in the same way in Scotland, where similar objects are achieved by different processes. Less use is made of trial by jury, for example, than in England and Wales.

Lack of engagement presents a problem. I may have been too severely critical of the Minister, but at least I have given him the opportunity to defend himself and his Department; but it is the experience of the Committee of which I am Chairman, the Select Committee on Justice, as well as of the Human Rights Committee, that the level of engagement between the United Kingdom Government and devolved Governments, and the United Kingdom Parliament and devolved Parliaments and Assemblies, is well below what is really required to make the devolution settlement work. Perhaps that is not surprising. It is all relatively new and many of the participants have been busy looking after their own corner, as it were, whether that is governing Scotland or trying to work out how Departments covering England, or England and Wales, can relate to what is happening there. Our report, "Devolution): A Decade On" underlines pretty firmly the ambiguities and uncertainties in the structure that is meant to deal with those things, and the need for progress.

Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour)

Will the right hon. Gentleman clarify whether he is talking generally about the relationship between the United Kingdom Government and the devolved Administrations, or particularly in relation to the Green Paper on rights and responsibilities?

• Alan Beith (Berwick-upon-Tweed): I had indeed moved from talking about the specific case, to say that the likely reason for what has happened is, as the Committee identifies, that what I describe is characteristic of much of the general pattern of relations between the component parts of Government in the United Kingdom in the early period since devolution.

Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour)

To be absolutely clear, do I understand that the right hon. Gentleman is talking about something that is likely to be the case, as my hon. Friend the Member for Hendon was saying, but that he has not experienced himself?

• Alan Beith (Berwick-upon-Tweed): My point is that I have taken ample evidence that the situation in relation to governance matters generally, between the various parts of the United Kingdom, is an unsatisfactory one. That is set out in the report, to which we await the Government's response in due course, on how devolution is working. The Joint Committee on Human Rights identifies a particular problem, and the same things appear to have been happening in the area that I was talking about. It is not a criticism that I make too severely, because it is part of the growing pains of the devolution process, but it needs to be addressed.

That brings me to the fundamental point. Should we go through the process of creating a new Bill of Rights, or should we do more to make the one that we have work more effectively? One of the more worrying things is that several important rights have been damaged or abrogated under the present regime, and there is no particular evidence that the creation of an additional Bill of Rights would put a stop to that. Indeed, if anything, some of its advocates seem to hope that it would cause the Human Rights Act 1998 to have less impact than it does now. Much of what I am talking about relates to derogations in the context of anti-terrorism legislation, or matters in such legislation that are not the subject of derogation but which have been sources of loss of rights. Paragraph 37 of the report deals with evidence about several issues, including rights of assembly in the vicinity of Parliament and other features of anti-terrorism legislation, and the fact that those have effectively involved limitation or abrogation of rights.

We should be concentrating our effort on making sure that the existing system works, and that on the occasions when we must consider derogating from it we do so by a process that involves Parliament more fully and effectively. I remain a sceptic about the need to add to the corpus of human rights legislation at this stage. However, if we are to do so, I am glad that the Committee has raised some process issues. We are in the middle of a quite strange process, which is welcome, in one sense, to those of us who have always wanted constitutional reform; but constitutional reform is springing up all over the place. Prime Ministers and party leaders are coming out with speeches day after day about more and more reforms. More legislation is being offered, suggested, or, in the case of the parliamentary standards authority, brought forward in a matter of days.

However, there is a certain lack of coherence and shape to the process, and there is no real process by which to engage with citizens to ensure that there is some consensus on constitutional change. I do not want to dampen the enthusiasm for constitutional reform at all, but I want to make sure we have a coherent process. My Committee will do some more work on that. However, in its reflections on the sort of process that we might need, the Joint Committee on Human Rights has done us a service by trying to widen the scope. I have severe doubts about whether that is a road we need to go down at all, as far as human rights legislation is concerned. However, if we do, a process that involves our citizens more fully and leads to very considered decisions in this area is vital. I fear that we may run the risk of having a dangerous constitution Act, which is something we should avoid.

• . . David Howarth (Cambridge): It is a great pleasure to follow my right hon. Friend Sir Alan Beith. I agree with a great deal of what he said. I also agree with the Committee's report in two crucial respects): it is wrong to link human rights with individual responsibilities-as my right hon. Friend said-and it makes no sense to link the human rights debate with attempts to promote notions of Britishness.

The Committee was right on those issues because of a reason that relates to both of them. Human rights form a basic minimum standard, below which no civilised Government should ever fall in their dealings with any human. That means that complying with human rights standards simply cannot be made conditional on the behaviour of individuals, as my right hon. Friend demonstrated. The state must not behave in ways that violate those standards, no matter with whom they are dealing. That applies to unpopular and antisocial people, as well as everyone else.

For the same reason, one cannot say that human rights are peculiarly British. They are universal and they apply to all states and humans-not just the citizens of particular states and the residents of particular places. It is no more British-in some cases it might be less, but it is certainly no more-to support human rights than it is French, Canadian or Australian. I also agree with the Committee when it states that we should be suspicious of the motives of those who call for a British Bill of Rights and responsibilities. If the people calling for that were genuinely concerned about strengthening human rights protection-as is my right hon. Friend, Mr. Dismore and I-there would not be a problem. However, the reality is that many of those who call for such a measure-both in the Government and the official Opposition-show no sign whatsoever of wanting to strengthen the law. The hon. Member for Hendon mentioned a key example in the form of his Human Rights Act 1998 (Meaning of Public Authority) Bill, which I strongly support. The Bill would extend the protection of human rights law, so that it is exercisable against those private organisations that carry out state functions-particularly under contracting-out arrangements. When the Bill comes before the House in about 10 days' time, I urge the Government to allow it through because it would strengthen the law in a useful and important way.

The problem is that the real motive for introducing a British Bill of Rights and responsibilities seems to be simply to appease an angry right-wing populist press that has always hated the Human Rights Act. They hate it for several reasons. My right hon. Friend the Member for Berwick-upon-Tweed mentioned one of the reasons, which is the incorrect association of the European convention on human rights with the European Union. Another motive, which is also technically incorrect, is the association that some newspapers make between the Human Rights Act and the development of privacy law by the courts. The third reason why such parts of the press hate the European convention on human rights and the Human Rights Act is because they do not believe in the central idea of human rights in the first place, which is that there should be limits to what a majority can do to an unpopular minority. It is easy to sell newspapers by running campaigns against despised minorities.

Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour)

Politicians.

• David Howarth (Cambridge): Absolutely. As the Minister said, I hope that after recent events, people in this room and this House will see that issue rather more clearly than they have done. To the extent that human rights law gets in the way of such campaigns, those newspapers target human rights law as well. I suppose that cowering before the press is a habit we have all acquired, but we should ask where that has led. In the field of human rights, it has led to the failure-sometimes a complete failure-to defend the idea of human rights itself.

We are now in a situation where some people say that the thing to do is to attempt to re-launch the idea of human rights in a sort of disguise, to try to deal with the anti-European bile-because that is what it is-by talking about the Britishness of rights, and to try to deal with the populism by talking about responsibilities. That is where the Government are coming from in terms of a political strategy. However, I do not think that such an approach can possibly work; actually it will make the situation worse. Such a policy fails to understand the basic problem, which is that those who oppose human rights on populist grounds simply do not accept the basic idea that even unpopular people deserve rights. So, saying that rights are British or linking them with responsibilities will make things worse, because doing so concedes to the argument that only the popular should be protected. If we say to populists that human rights should protect us all, we will not persuade them that the unpopular should be protected. All they will say is, "Why should undeserving people get the rights that I have?" Such an approach will not work and I plead with the Government to move away from that political strategy, because it will make things worse.

The Committee's point of view seems to be that, although there are bad reasons for going forward with a British Bill of Rights and freedoms project, there are also good reasons to do so. The Committee considers it a good idea to launch into a full scale reform of human rights law now-not on the basis put forward by the Government or the official Opposition, but on the more rational basis that a large number of improvements in the law could be made. I can see that point, but I am not convinced it is the right time to carry out such reform. The hon. Member for Hendon talked about having a consensus across the parties, but it breaks down on that issue, first, because our reasons for supporting the general idea of constitutional reform and a Bill of Rights are different from those of the Government and, secondly, because we disagree on the points about tactics and strategy.

Given the atmosphere in which we are living, is this the right time to launch a reform of this particular part of the structure? We must first secure what we have, and that means defending the idea of human rights and the Human Rights Act. The Conservatives try to have it both ways by saying that they are, of course, in favour of human rights and that they are simply against the Human Rights Act. That is a self-undermining argument, which cannot be sustained in the long term. In fact, the political meaning of such an argument is obvious; in reality, the Conservatives are trying to side with the populists who are against the whole idea.

• Simon Hughes (North Southwark & Bermondsey): I absolutely agree with my hon. Friend. I have been troubled that, despite the strong words issued by the present Lord Chancellor in some of his previous roles and by Lord Falconer when he was Lord Chancellor that the Government were keen to promote the Human Rights Act and to explain what the European convention meant, the position still, to be honest, has not been clearly, regularly and consistently enunciated so that ordinary British people understand the range of rights. If they did, they would be hugely reassured rather than occasionally troubled.

• David Howarth (Cambridge): I thank my hon. Friend. Lord Falconer started to defend the Human Rights Act but then that seemed to fade away. The present Lord Chancellor gives interviews, three quarters of which are marvellous. He includes strong defences of the idea of human rights and the Human Rights Act, but then, towards the end or in crucial parts, he slips away to the other point of view. He is trying to be both for and against the Daily Mail in the Daily Mail. We need to be much clearer about human rights.

• Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour)

For the record, may I suggest that the hon. Gentleman actually read the interview that my right hon. Friend the Lord Chancellor gave to the Daily Mail? If he reads it carefully, he will see that my right hon. Friend refers to other points of view. It is perfectly legitimate to reflect the other points of view in this country about the Human Rights Act. It does not mean that he supports those views; he is merely reflecting them.

• David Howarth (Cambridge): I had the misfortune of reading that article earlier today. The Lord Chancellor defends the idea of human rights for three quarters of the time but then, towards the end, he says that he gets frustrated with the judges' interpretations of human rights because they give the impression that the Human Rights Act is a villain's charter. He does not say that it is a villain's charter-he blames the judges for making it a villain's charter, which makes the whole thing worse rather than better.

David Burrowes (Enfield, Southgate, Conservative)

The hon. Gentleman criticises the Conservatives for forming a critique of the Human Rights Act. Would he, as a Liberal, defend the status quo in respect of the Strasbourg court jurisprudence? Perhaps he would not share the concerns of my Front-Bench team, but would he share the concerns of the noble Lord Hoffmann, who is concerned about the Strasbourg court, in effect, second-guessing the courts and, indeed, the Parliament of this land?

• David Howarth (Cambridge): If one is part of a constitutional structure, one has to take the rough with the smooth. One cannot go around saying, "We accept the court's judgments when we agree with them, but we do not accept them when we disagree with them." That is not how a legal structure works.

• Andrew Dismore (Hendon, Labour)

I have heard the argument propagated by the Conservatives. It is nonsense. The way things are now, if a judgment is made against another country, it is not binding on the UK, according to their argument. That is fine, but, eventually, there will be a case against the UK, and it will be 10 times worse when we, rather than somebody else, are found to have done something wrong, instead of just putting things right ourselves.

• David Howarth (Cambridge): That is precisely right. The Conservatives' entire position strikes me as incoherent. If one switches what they are saying to the position of other countries and tries to work it out from that point of view, it makes no sense whatsoever.

We need to say more clearly that human rights are there to stop states, including ours, acting in totally unacceptable ways, and that it does not matter whether when the state does those things it does them to good people or to bad people-people approved of or disapproved of by the newspapers.

We need to say clearly that asserting a human right is not a selfish act. There is a great deal of rhetoric-more on the left than on the right, but some on the right as well-that human rights are part of some libertarian plot to reduce all thinking to that of atomistic individuals who assert their own interests through a legal structure and do not care about anybody else. When someone asserts a human right, they are doing a public act, the effect of which is to restrain the Government from doing something that they should not do in their public and political role. It is not the privatisation of politics but part of politics itself. Finally, we need to say clearly that newspapers that campaign against the Human Rights Act are endangering all our liberties.

To come back to my central point about strategy and tactics, after we have won the battle for the idea of human rights, we can move on to talk about the improvements in the law that the Committee rightly points out could be achieved. I have already been speaking for 15 minutes, so I do not want to go through all the Committee's specific proposals in the detail that they deserve, especially as I think that in many cases this is not quite the right time to press them. I am generally sympathetic to what the Committee is saying, but I would like to make two general criticisms in the hope that it might help the debate in future.

The first criticism is that some of the Committee's proposals seem to mix up human rights and civil rights; that is, rights that belong to all humans in all states, and the rights of citizens of a particular state or the residents of a particular place. I can give an example which, although I am very much in favour of the Committee's conclusion, nevertheless makes my point clearly. The right to a fair trial is a human right in that it is universal, but the specific right to a jury trial is a civil right of people in England and Wales-in that case, of residents rather than citizens. That does not mean that the right to jury trial should not be given a special protected status similar to that given to a human right-I would be in favour of doing that-but it cannot be the same thing. It is not universal; it is not about all states or all humans everywhere in the world.

The same point applies to much of the debate about social and economic rights, and possibly environmental rights as well. The hon. Member for Hendon is right to say that there is no explicit human right to be protected from destitution, but destitution can amount to violation of the article 3 right to be protected from inhuman, degrading treatment, or even the right to life in article 2. There is a sense in which freedom from destitution is a human right because it protects the basics, the fundamentals-life and basic dignity.

It would be possible to go further than that on the basis of justiciable rights, as long as one knew what one was doing. For example, there is a sense in which to exercise one's political rights to be a citizen, one needs some basic level of health care, housing and education. It would be only a minimum standard and would require some resources-this is not an argument about all resources-but it would be possible to do that on the basis of what was owed to citizens or residents, rather than what is owed to all humans in the world, wherever they might be.

The second criticism is that some confusion seems to have crept into the Committee's thinking, and the Government's thinking, too, about the difference between a written constitution as a project and a Bill of Rights as a project. I noticed the other day that the Prime Minister had returned to his view, which he mentioned right at the start of his term of office, that he was in favour of a written constitution.

A written constitution project is a different thing. For example, entrenchment of a Bill of Rights can occur in a meaningful, full way only in the context of a written constitution. Only if there is a written constitution can one get away from the fundamental problems of the sovereignty of Parliament, and the idea that Parliament can pass anything as a law and can overturn anything that has previously been passed as a law. In reality, one can get away from that only if there is a written constitution.

This is where the argument about preambles and declarations has gone wrong. Much has been said about statements of values and symbolic statements of that kind. They are the kind of thing that one sees in the preambles to written constitutions. They make perfect sense in such contexts, but one does not see them in the preamble to Bills of Rights or human rights Acts as limitations on governmental power. It is better to state the values to which the state is committed in the structure of the constitution. There is no need to do that simply in the limiting bit-in the Bill of Rights bit or in the Human Rights Act bit. The whole thing requires a preamble.

If the Government were to say that in drawing up their statement of values they were trying to draft an early version of the preamble to a written constitution, rather than something to do with the Bill of Rights, I could see what they were up to and would understand it. There is an issue about whether that is the right way round, and some people would argue that the mechanics should be done first, and that the values should then be considered, but linking the writing of the preamble to reform of human rights law is odd and risky, and should be rethought.

Despite some reservations about tactics and strategy in the Committee's report, I very much welcome it, and I urge the Government to be more positive about it.

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