Bill of Rights — House of Lords, 2022-06-23
Topic: Civil Rights
Brian Paddick (Liberal Democrats, Centre to centre-left): My Lords, I hope the House will forgive me, but I am neither a lawyer nor a historian—I gave up studying history at 1066—so I would be grateful if the Minister could correct me if any of my observations are erroneous In his 1859 book On Liberty, John Stuart Mill talked about the tyranny of the majority—an inherent weakness in majority rule, in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions. As I understand it, the origins of the European Convention on Human Rights are from when the democratically elected German Parliament passed the 1933 enabling Act, which enabled the Chancellor to bypass the system of checks and balances in the Government and the laws created under them, allowing actions that could explicitly violate individual rights prescribed in the Weimar constitution. Perhaps more accurately, it could be said that the Chancellor decreed that certain people were no longer citizens and therefore did not have the rights given to them under that constitution. After the war, this led Winston Churchill to ask predominantly British lawyers to draft the European Convention on Human Rights, not least because the sovereign will of a democratically elected parliament needs a backstop of universal human rights to protect the individual from the state and the tyranny of the majority. Churchill reportedly said that "it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time"— this was presumably before he knew about proportional representation I also welcome the Minister’s appointment to the Front Bench. He will no doubt say that the UK will not leave the European Convention on Human Rights but will just ensure that it is interpreted in accordance with what Parliament says it means and how British courts interpret it. This is where I get somewhat confused. My understanding is that the Government propose to allow British courts to ignore European Court of Human Rights case law, if they disagree with it, but that individuals will still have the right to take their case to the European Court of Human Rights, which will take account of its own case law. Other than wasting thousands of pounds of taxpayers’ money on fighting cases in Strasbourg that could have been settled in UK courts, what is the point of UK courts ignoring the European Court of Human Rights, if the next stop in the appeal process is the European Court of Human Rights The whole purpose of international conventions, and of sovereign countries signing up to them, is to ensure that the rights that they confer are universally applied. The UN refugee convention is slightly different, in that there is no court of arbitration or international court to adjudicate where different sovereign countries interpret the convention in different ways. But, in the Nationality and Borders Act, the Government effectively said, "This is the British Parliament’s interpretation of the UN refugee convention, and British courts must abide by what Parliament says the convention means." The Government have said that rights conferred by the UN refugee convention do not apply to class 2 refugees—that is, to those whom Parliament, through the Act, has said are excluded from those rights In the absence of the equivalent of the European Court of Human Rights for the UN refugee convention, it will be for British courts to decide on the legality of the Nationality and Borders Act. However, that approach will not work—or that is my understanding—with the European Convention on Human Rights, because there is an international court that arbitrates on ECHR cases. How does the approach work—that the UK Parliament is sovereign and British courts will interpret the European Convention on Human Rights in accordance with what we say—if the UK remains a signatory to the European convention and subject to the rulings of the European Convention on Human Rights? Can the Minister also say whether the UK Parliament being sovereign means the Westminster Parliament or the Scottish and Welsh Parliaments? What happens if those Parliaments refuse to pass legislative consent Motions One of my favourite expressions is that of the late Magnus Magnusson, the former host of "Mastermind", who described a difficult question as one you do not know the answer to. Perhaps we should now add that the European Court of Human Rights going beyond reasonable interpretation of the convention is a case where the British Government disagree with that court. In other words, is this Bill of Rights without any real substance, or the end of universally applicable human rights in the UK? This Government have tried to end universally applicable human rights for refugees. Is this the Government’s attempt to extend that ban to every citizen?