Bill of Rights — House of Lords, 2022-06-23
Topic: Civil Rights
Christopher Bellamy (Conservative, Centre-right): I thank noble Lords for those remarks, which are very sincerely put forward and entitled to deep respect on this side of the House. In due course, if and when the Bill reaches this House, we need to grapple with all those points. If I may, I should like to deal quickly with the points made and then see whether I can expand a little on what I was saying this morning about the constructive balance that this legislation seeks to achieve. In response to the noble Lord who asked whether this was the end of human rights as we know it or whether the Bill did not do anything, I think the answer from the Government’s side is that we are trying to strike that constructive balance in the middle Forgive me if I omit some points, but I shall take them very quickly. On the Worboys and Hillsborough points, and those related matters, the Government take Articles 2 and 3 extremely seriously and it is not the intention to weaken them. In relation to positive obligations, the focus of those provisions is what one can call the extended jurisprudence, which extends into what one can call socioeconomic rights—social benefits, clean air and all those related matters, which in the Government’s view are primarily a matter for Parliament and not the judiciary or to be addressed under this human rights legislation I am sure that we will come to Northern Ireland in more detail in due course. The Government are quite satisfied that the provisions of the Bill are compatible with the Good Friday agreement and other relevant Northern Irish considerations. As for pre-legislative scrutiny, the Government have consulted fully on the Bill; the consultation included draft clauses, and it seemed appropriate for the Government to proceed as they are now proceeding. A main emphasis of the Bill is to underline, and encourage UK courts to take advantage of, this margin of appreciation. As a result of the initiative taken by the UK in establishing the Brighton declaration, which took effect only in August last year, the principle of a margin of appreciation and subsidiarity are written into the convention It should be appreciated that, in 1950, Winston Churchill and the others who were engaged in this matter did not think that they were abandoning parliamentary sovereignty; they just did not. They thought that they were conferring on a court the ability to interpret a convention but they did not by any means reach the point that this Parliament was surrendering its sovereign right to legislate as it saw fit. We can get into detail with John Stuart Mill, what happened in the 1930s and all that sort of thing, but we are now in 2022 and faced with the present legal situation Having made those brief comments on the points already made, I would like to see whether I can make good my earlier point on constructive balance. First, let us take the things in this Bill that do not change. We remain in the convention. The convention rights are still protected in domestic law. Public authorities continue to be obliged to act in accordance with the convention unless there is superior primary legislation to the contrary. People will still be able to rely on their rights in any court or tribunal; if there is a question later about the so-called permission stage, I will deal with it then. UK domestic higher courts are still able to give a declaration of incompatibility with the convention; it will then be for Parliament to resolve what will happen next. Claimants who have exhausted all their local remedies in the domestic jurisdiction are still able to go to Strasbourg. It may not happen very frequently— personally, I suspect that it will not happen—but that opportunity is still there. Article 46, which was mentioned this morning, is still there In the occasional case where there is a finding that the UK is in breach of the convention, there is necessarily a political settlement through the Committee of Ministers procedure to find ways of ensuring compliance with the convention. In this context, I do not use the word "enforcement" because one does not really talk about enforcement of the convention; ways of compliance are traditionally found through political action in the Committee of Ministers All that remains as it has been. So what is changing? That is the second part of my explanation. In the Bill, it is clarified that the domestic courts are not bound to follow the jurisprudence of the Strasbourg court. As far as I know—I am happy to be corrected—it has never been the case that the decisions of Strasbourg are considered binding in a general sense. They may be binding in an individual case against an individual state but the general jurisprudence is not binding and the ability of domestic courts, whether in the UK or another member state, to diverge from the jurisprudence is recognised and established under the convention That was certainly the position of Sir Peter Gross in his independent review. That distinguished review and the panel who assisted Sir Peter, to whom I take this opportunity to pay tribute, recommended that UK law, including common-law legislation and Scots law, should take centre stage—that was the phrase used—and that it should be recognised that UK courts have the right to diverge from the generality of Strasbourg jurisprudence. That is something that the Government are acting on; it is what is currently in Clause 3 of this Bill and is in Section 2 of the Human Rights Act. So that is the first thing Secondly, the courts will not be required to rewrite legislation as they are required to under Section 3 of the existing Act to make it compatible with convention rights. Thirdly, and of great importance, particular weight is attached to freedom of speech under this Bill and there is greater protection for journalistic sources. Courts will not, however, be able to impose new positive obligations on public authorities and will have to consider carefully the impact on such public authorities by applying existing ones. We can come back to that. There are other protections but I am already beginning to run out of time. It will be more difficult for foreign criminals to invoke Article 8 on the right to private and family life. There will be a permission stage and there will be various other procedural changes The final thing to mention in this list—I am sorry it is a long list—is that the Bill is excluding extraterritorial jurisdiction or military operations abroad, subject to there being in place comparable legislation to give effect to all our obligations under the laws of war and related points. This Bill is not abolishing human rights. It is preserving, strengthening and increasing democratic oversight. That is the Government’s case and I look forward to further detailed debate.