Human Rights and Civil Liberties — House of Lords, 2015-07-02
Topic: Civil Rights
Edward Faulks (Conservative, Centre-right): My Lords, I am very grateful to the noble and learned Lord, Lord Wallace of Tankerness, a former ministerial colleague, for initiating today’s debate. The subject is, of course, always of critical relevance but perhaps never more so than today, when we face challenges to civil liberties and the Government are faced with trying to balance civil liberties with the security of the nation. The debate has been instructive and thought provoking, graced by contributions of a very high standard. I have listened to all the contributions with care and would stress that the Government have a clear mandate on the question of the current legislative framework for human rights but nevertheless are currently very much in listening mode On that point, I am disturbed that the noble Lord, Lord Lester, received no response from the Lord Chancellor. I know that the Lord Chancellor is anxious to see as many people as he can and that, in fact, the noble Lord, Lord Lester, is on the list of those he would like to see. I cannot explain any administrative failing, but I can assure the noble Lord that he will be most welcome and that, if he could put up with the company of a couple of zealots, we would be happy to discuss these matters with him Noble Lords are aware that, as Minister of State for Civil Justice at the Ministry of Justice, I am responsible for representing the department and the Government in this House on the subjects of human rights and civil liberties. I share this task and responsibility with my ministerial colleague Dominic Raab. We are both equally committed to coming up with lasting solutions to meet the challenges which this responsibility entails Brief reference was made during the debate to the so-called snoopers’ charter, which is understandable, because we are shortly to have a debate on the report from David Anderson QC. I was on the pre-legislative scrutiny committee for the original draft communications data Bill, so I have some personal knowledge of the issues, which perhaps particularly illustrate the difficulties that a Government have in balancing individual privacy with security. I know that the Government are carefully considering David Anderson’s report and will have to consider how that balance is best reflected. It is a little unfortunate that the journalese expression "snoopers’ charter" has been so widely adopted. It demeans a very difficult argument that has to be undertaken by all those who care about these things The noble Lord, Lord Addington, mentioned vigilance over disability rights, and made some valuable points about the need not to characterise or mischaracterise those with disabilities—and how we as a Government, or any Government, should tread very carefully in this area In a debate involving the Liberal Democrats, it was perhaps no surprise that the noble Lord, Lord Roberts, mentioned the perennial subject of electoral reform, and the lack of a democratic mandate. Of course, what he said will be regarded by many as a valuable contribution to the debate, but I hope that he will forgive me if I do not go into a long response on questions of democracy I shall focus considerably on the question of the reform of the Human Rights Act, which has formed the bulk of the debate in your Lordships’ House. It is beyond dispute that the United Kingdom has a strong tradition of respect for human rights, which long predates our current arrangements. The Government are proud of that tradition and, in developing proposals for reform, will make sure that the tradition is not only maintained but enhanced. However, we take the view that all is not well with the current law in relation to human rights, and the Government were elected with a mandate to reform and, where appropriate, modernise the United Kingdom’s human rights framework. Therefore, we will bring forward proposals for a British Bill of Rights, which will replace the Human Rights Act. Our Bill will protect fundamental human rights, but also prevent their abuse and restore some common sense to the system We will consult fully on our proposals before introducing legislation. I hope that will be acknowledged around the House as an appropriately cautious way in which to proceed—not a sign of weakness or second thoughts but a sensible way in which to undertake reform of a major constitutional nature. I do not want to pre-empt that consultation, but it may be useful if I give the House some pointers to our current thinking, without prejudice to any final conclusion on what is or is not in the consultation. It is unfortunate that so many noble Lords make the assumption that any British Bill of Rights would contain rights that are "more restrictive" than those in the convention. The Human Rights Act was passed shortly after the Labour Party won the general election in 1997. As a number of noble Lords observed, it was a very clever piece of draftsmanship. The narrative was that the Act would bring rights home, obviating the need for a trip to Strasbourg by UK citizens. There was much speculation about what the impact of the Human Rights Act would be on our law domestically; many thought that the effect would be marginal. In fact, there is virtually no aspect of our legal system, from land law to social security, to torts and consumer contracts, that has not been touched to some extent by the Human Rights Act The noble Lord, Lord Cashman, in his passionate speech said that the Act had worked magnificently—and certainly I would not quarrel that there have been good decisions influenced by it. But he should not, and the House should not, underestimate the capacity of the courts before the Human Rights Act and the capacity of the court of Parliament to protect human rights by showing an ability to pass new legislation to develop the common law. This Parliament passed the Modern Slavery Act and the previous Government passed the equal marriage Act. One issue about equal marriage was whether there would be difficulties with Strasbourg if the Act came into force. So we should not underestimate what this country has in its capacity to protect human rights Many lawyers are very enthusiastic about the Human Rights Act. I have to say that my own experience as a practitioner does not make me an unequivocal supporter of it. As a barrister representing public authorities, I saw the incursion of human rights law into the fields of social services, education and police investigations. It contributed a great uncertainty to the law, and I am afraid that I am not persuaded that it resulted in any real improvement in the protection of fundamental rights. It certainly resulted in a great deal of additional expense in areas where budgets were already tight. But whatever views might be taken of the effects of the Human Rights Act—and I do not want to embark on a litany of cases for and against; views can reasonably diverge—I think it would be accepted that the Act has not endeared itself to the public generally. That was one conclusion that the commission reached. Not all of this is the fault of the tabloid press; the problems with Abu Qatada and others, prisoner voting—on which there can reasonably be different views—and some of the frankly trivial claims have not helped.