Queen’s Speech — House of Lords, 2022-05-12
Topic: Civil Rights
David Wolfson (Conservative, Centre-right): My Lords, it is a great pleasure to follow the right reverend Prelate. I declare my interest as a practising barrister, in what is my maiden speech from the Back Benches. I do not know whether the convention against controversiality therefore applies to me, although as the formal Motion before the House is to propose a humble Address to Her Majesty, nothing can be less controversial, or indeed command more unanimous acclaim I would like to say a few words about the proposed measure to replace the Human Rights Act with a Bill of Rights. I am conscious that having done, let us say, a fair amount of work in this area while serving as a Minister, I feel a little like the expectant father who, having seen the 30-week scan, now paces anxiously outside the delivery room to see what on earth has happened in the meantime. I hope that the Bill will be delivered both safely and in rude health but, as we wait for it, a little historical context might be in order. It might come as a shock to some commentators, but human rights did not begin in 1998 with the passage of the Human Rights Act. The UK signed the European Convention on Human Rights in 1950, and extended the right of individual petition to the European Court of Human Rights in 1966. What really changed in 1998 was the ability of individuals to vindicate their convention rights in the UK courts, rather than having to get a train to Strasbourg. As we have heard again this morning, the UK will remain a signatory to the convention, and convention rights will still be enforceable in our courts. One might therefore ask what all the fuss is about One answer is that, rather like the Judicial Review and Courts Act in the last Session—and I declare an appropriate interest there as well—too many commentators appear to work on the basis of, "Tweet first, read the Bill later". Others take it as axiomatic that anything emerging from a Conservative Government must be bad, although it was a Conservative Government who signed and ratified the European convention in the first place. The truth is that human rights remain controversial because the subject is often the place where law and politics meet—and I shall make four short points in that context First, human rights law is often seen as something which causes problems rather than provides protections. People moan about "human rights" in the way that they moan about "health and safety", although I suspect that the absence of either would cause them problems—they would miss both if they were not there. I do not put all our current constitutional problems at the door of the noble and learned Lord, Lord Falconer of Thoroton, who will speak next, although the rather attenuated role of the modern Lord Chancellor is one of them, but he might agree with me that, in retrospect, the language of "bringing rights home", used for the 1998 Act, was unfortunate because it cast human rights as a foreign implant in our legal soil, whereas in truth many of them actually have firm jurisdictional roots in this country and have been grafted on and become part of our common law tradition Secondly, as often with law, the issue is frequently not the rights themselves but the way they have been interpreted, a point made forcefully in several papers from Policy Exchange. That is because the Strasbourg court uses the living instrument theory when interpreting the convention, which ends up with that court deciding what additional rights it thinks a modern democracy ought to have, and which, necessarily, are not found in the text of the convention itself. So, the convention has been held to apply extraterritorially—for example, to British Army bases in Iraq—despite there being no basis in the text for that conclusion. Rights in the text are given a radically new meaning. Article 8, which was obviously intended to protect personal and family life from the surveillance of totalitarian regimes, is now found to extend to noise abatement issues, the legal status of illegitimate children and the non-payment of rent. Those issues are important, but my point is that in a democracy they are better resolved not in a courtroom but in a parliamentary Chamber That brings me to my third point. Law is sometimes messy, and politics, as I now know only too well, can be messier. But politicians—at least, some of them—are elected, while judges are not; politicians can be removed, judges cannot. I value our judges enormously, even when, perhaps especially when, they decide against my clients. But it is because of that respect that I do not want to see judges being pulled into what are essentially political or moral issues: these should be decided here and not on the other side of Parliament Square My final point is that debate is good, both here and in the public square, both the physical and the online public square. When the Bill of Rights is laid before Parliament, I want to see an energetic public debate. As has been said, free speech is the cornerstone of rights; the right, ultimately, on which all other rights depend. I therefore wait with interest to see how that proper emphasis on freedom of expression is to be squared with the apparent approach in the Online Safety Bill to limit speech which is deemed—I am not sure by whom, where or on what basis—to be entirely lawful but none the less harmful. I take the view that people need to know what the boundaries are, and those boundaries we call "law". Legal consequences should follow only when legal boundaries have been breached. That is, I suggest, part of a society governed by the rule of law We heard the prophet Amos quoted a few moments ago. I will conclude with the psalmist, for whom justice and law are the foundation of God’s throne, of which Her Majesty’s Throne in this Chamber is a constant reminder. I suggest that justice and law are, and should be, the foundation of our society as well.