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Human Rights

My Lords, I, too, congratulate my noble friend Lord Lester on securing this extremely interesting and important debate. I shall focus on the requirements of Section 19(1)(a) of the Human Rights Act, which provides that the Minister of the Crown in charge of a Bill in either House of Parliament must make a statement to the effect that, in his or her view, the provisions of the Bill are compatible with the convention rights. That is the statement of compatibility, with which we are all too familiar. The provision was brought into force in November 1998, and we constantly see on the cover of any government Bill the short statement: "““In my view, the provisions of the … Bill are compatible with the Convention rights””." And that is all we see. In all parliamentary systems which have adopted a Bill of Rights or its constitutional equivalent, there has been a debate about whether the judiciary should have the sole authority when claims of rights clash with political decisions; in other words, whether judicial interpretation must prevail over political judgment. In some systems in the United States, to which my noble friend Lord Goodhart referred, and in Canada in particular, the judiciary is authorised to invalidate legislation that is inconsistent with guaranteed rights. My own first contact in this field was with the Hong Kong Bill of Rights, to which the noble Lord, Lord Wilson of Tillyorn, as Governor of Hong Kong, gave his assent in June 1991. It incorporated the provisions of the International Covenant on Civil and Political Rights and provided, in terms, that all pre-existing legislation which does not admit of a construction consistent with this ordinance is, to the extent of this inconsistency, repealed. So if it was inconsistent, it went. In its early days, the Hong Kong judiciary, with this new power to strike out legislation, exercised it with a will. I appeared for the appellant in the first test of its judicial activism in the Privy Council in the case of the Attorney-General v Lee Kwong-kut in 1993. It dealt with the reverse of burden of proof in a criminal charge—an issue, incidentally, that we were debating yesterday in the Serious Crime Bill: it is important. The noble and learned Lord, Lord Woolf, expressed his disquiet at too much judicial activism and cautioned that questions of policy remained primarily the responsibility of the legislature. He held that a strict attitude towards statutory defences would merely encourage the legislature to adopt a different drafting style which would not assist individuals who were charged with offences. He said: "““While the Hong Kong judiciary should be zealous in upholding an individual’s rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public””." That was colonial legislation introduced in 1991 by the British Governor, the noble Lord, Lord Wilson. The Human Rights Act, which we introduced here in 1997, followed a different model that was closer to that adopted by New Zealand in 1990. In that, the judiciary is not authorised to invalidate legislation that is inconsistent with guaranteed rights. As noble Lords will know, the Human Rights Act obliges courts to interpret legislation so as to be as compatible as possible with Convention rights, but the court may make a declaration of incompatibility which can engage a fast-track mechanism to enable Parliament to amend that legislation. However, there is no obligation on the Government to use that mechanism. There is no requirement even for them to comment or to give reasons for disagreeing with the court’s ruling. The problem in the United Kingdom, deriving—I have to say—from a first-past-the-post electoral system, is that strong party discipline results in very few checks on decisions of the Executive. The concentration of power in the hands of the Prime Minister of the day, barely modified even by collective Cabinet decision-making, means that guaranteed rights can be ignored or written over. The noble Earl, Lord Onslow, provided a list: the removal of jury trials in serious fraud cases, and the introduction of ASBOs, control orders and, now, serious crime prevention orders by using a civil standard of proof and civil methods of proving the issues involved. I recognise, however, that there are some limitations. No Minister wants to be criticised for having the legislation for which he or she is responsible declared by the courts to be incompatible, hence the provisions of Section 19, by requiring a statement of compatibility, demand of every Minister some form of pre-legislative scrutiny of every government Bill. There is a natural scepticism, not least on these Benches, about the statements that appear on the front of Bills. Frequently, particularly as regards Home Office Bills, there is a sharp debate as to whether the provisions of the convention have been violated. As the right reverend Prelate the Bishop of Chelmsford pointed out, there is a clash between the maintenance of civil liberties and the attack on crime. Many of the Bills that are introduced by the Home Office contain that clash, thereby inviting a dispute about whether they comply with the convention. The debates that we have are informed by the reports of the Joint Committee on Human Rights to which the noble Lord, Lord Lester, referred. That committee has the important function of advising both Houses whether rights have been fully respected in the Bill in question. In addition to its consideration of representations from a wide body of opinion, the committee has the power to question Ministers to seek explanations and clarifications of legislative proposals. If a statement of incompatibility is made by a Minister under Section 19(1)(b) of the Act, there is inevitably controversy. As a result of the Anti-terrorism, Crime and Security Act 2001, the Home Secretary entered a derogation from Article 5.1(f) of the ECHR and the Joint Committee on Human Rights was not convinced that the three requirements set out in Article 15 were fulfilled. In particular, the committee drew to the attention of both Houses the question whether a public emergency existed which threatened the life of the nation. It drew to our attention the overly broad definition of a terrorist and the lack of due process in relation to detention orders. There was a robust debate which led to some amendments, in particular a requirement of reasonableness relating to the decision to certify a person as a suspected international terrorist and your Lordships will recall the introduction of a sunset clause. However, in the case of A v Home Secretary in December 2004, the Judicial Committee of this House, sitting as a Bench of nine Lords of Appeal, held that indefinite detention under the Act was contrary to the convention and it made a declaration of incompatibility. Three years have gone by with this legislation in place and it is unsatisfactory that so many years may go by before the courts have the opportunity of pronouncing on guaranteed rights issues because during that time individuals caught in the system may suffer severely. Greater parliamentary scrutiny, therefore, is absolutely essential to ensure that rights are respected in the making of new statute law and here is where the noble Lord, Lord Patten, and the noble Earl, Lord Sandwich, come in. It is not the exclusive territory of liberal totalitarian secular lawyers to determine years later whether an Act of Parliament is incompatible with the convention. It is a matter that should be at the forefront of our discussions when we actually make that legislation. While the Joint Committee on Human Rights performs a vital and important role, Parliament should be better informed at the beginning of the legislative process about the Government’s evaluation of rights issues and the reasoning that lies behind these formal statements of compatibility. There should be transparency. These statements in the Bill are purely formal and they contain no guide or explanation of the assumptions or the values which lie behind the Government’s purposes. It simply says that the Minister certifies that this Bill is compatible with the convention. These formal statements should be accompanied or supported by relevant information which would allow Parliament to debate fully their merits and justifications. We should know what the aim of the Bill is; what harm or concern the Government are addressing; whether there is a possibility of a rights restriction; what the justification for it is; and why less restrictive measures are not being considered by the Government. We need information which we can debate at the beginning of the legislation. It should not be left to the courts years later and to the totalitarian secular lawyers to be arguing about it in succeeding years. I draw to the attention of the Minister an important article interpreting a Bill of Rights by Janet Hiebert of Queen’s University, Kingston, Ontario in the British Journal of Political Science published in 2005 by the Cambridge University Press. That compares the systems of New Zealand, Canada and the United Kingdom and I am sure she and her department would gain a great deal from it. As we have in this country consciously adopted a system which denies to the judiciary the final say when determining constitutional validity, political scrutiny of impending legislation is vital. If a Government give their reasons, they can be properly examined by the Human Rights Committee, considered by the public at large and, most importantly, tested in debate. Along with my noble friend Lord Goodhart, I have often said that the Human Rights Act is the Government’s most important legacy—indeed, it is probably the only positive one. It has helped to nurture the culture of respect for rights to which my noble friend Lord Lester referred. Criticisms of legislation by parliamentarians based on human rights considerations are not to be considered as the usual cut and thrust between opposition and government. There are few electoral votes in arguing for the rights of minorities. The noble Lord, Lord Sheikh, referred to the Afghan hijackers. I appeared in that case; they were lawyers and teachers who were escaping from the Taliban. It would have been a little unusual for us to send them back to Afghanistan when we were invading it to get rid of the Taliban. They were protected by human rights legislation. The Act should not be seen as a veto on legislative or Executive action. The considerations of human rights are essentially assertions of the norms—the noble Baroness, Lady Whitaker, referred to the fair play concept—and values of our humane society. Parliament agreed the Human Rights Act in 1998—in the year 2007, it should be fully respected.