Human Rights Act 1998 — House of Lords, 2022-07-14
Topic: Civil Rights
Donald Thomas (Liberal Democrats, Centre to centre-left): My Lords, I congratulate the noble Baroness, Lady Whitaker, not just on introducing this debate but on her lifelong attention to human rights. I am very pleased to have heard her speech today The ECHR, passed in 1950, set out a series of articles for the protection of human rights and fundamental freedoms. In the last 70 years, there have been just 16 protocols that have added to or amended those original articles. Unlike Parliament, which creates or amends statutes at will, it is clearly an impossible task to keep up with all the changes in the communities and societies of the disparate 45 countries represented in the Council of Europe. That this would be so was realised by the original drafters of the covenant, a team led by British lawyers. Their answer was to use the European Court of Human Rights not just to resolve human rights claims but, by its decisions, to keep the convention up to date From the very beginning, therefore, the European Court of Human Rights has frequently delivered decisions that were outside the original 1950 language of the articles. The technique that the judges of the court employ is called the teleological interpretation of the texts. That methodology has always been the predominant mode of interpretation in civil law jurisdictions and in public international law. No other approach is practicable if the law is to be kept up to date A former English judge, Sir Humphrey Waldock, who served as the president of the court for eight years, said in 1981: "The meaning and content of the provisions of the Convention will be understood as intended to evolve in response to changes in legal or social concepts" That is the living instrument to which the noble Baroness, Lady Kennedy of The Shaws, referred. For example, the court in recent years—by reference to Article 2, the right to life, and Article 8, the right to family life—has developed the concept of a human right to clean air. That is the context in which the noble Baroness, Lady Jones of Moulsecoomb, presented her Bill last Friday, seeking to embed such a right as a human right expressly into the domestic legislation of the UK. The court’s judges continuously and conscientiously research the developing principles worldwide, whether from United Nations human rights committees, conventions or elsewhere, in order to establish a European consensus. There is nothing arbitrary about their method; they do not pluck things out of the air The purpose of the Bill that the Government have introduced is to turn the clock back. While not resiling formally from the convention, Section 3 (2) of the Bill says: "A court determining a question which has arisen in connection with a Convention right … must have particular regard to the text of the Convention right, and in interpreting the text may have regard to the preparatory work of the Convention" That work was done in 1949 and 1950. That is, as the noble Baroness, Lady Chakrabarti, termed it, the originalist approach par excellence—and I suspect that the noble Lord, Lord Cashman, would not find reference to LGBTQ+ rights in the preparatory work done in 1949. Similarly, under Clause 3(3), the UK court: "may adopt an interpretation of the right that diverges from Strasbourg jurisprudence", while under Section 5: "A court may not adopt a post-commencement interpretation of a Convention right that would require a public authority to comply with a positive obligation." Post-commencement? It commenced in 1953 Last October, the Lord Chancellor Mr Raab told the Telegraph on his appointment: "I don't think it’s the job of the European Court in Strasburg to be dictating things … whether it's the NHS, whether it’s our welfare provision, or whether it’s our police forces … We want the Supreme Court to have a last word on interpreting the laws of the land, not the Strasbourg court" As he must know, UK courts are under no obligation to do more than take into account judgments of the European Court of Human Rights. They are not binding; the court does not dictate. What it does is set the standard of human rights for the 45 members of the Council of Europe It is the empty and useless rhetoric of the Tory party which lies behind this proposed British Bill of Rights, a false and dangerous belief in British exceptionalism. The Attorney-General Suella Braverman—I will not be as cruel as the noble Lord, Lord Carlile, with regard to her recent deposition—displayed her narrowness of vision and total lack of understanding when she demanded in the course of her approach to becoming premier that the UK withdraw from the European convention altogether. What understanding of the law is that in our Attorney-General A much nobler cause is surely to promote and support a common standard of human rights—the universal rights to which the right reverend Prelate the Bishop of St Albans referred. That is the reason why Russia has been expelled from the Council of Europe, as my noble friend Lady Ludford mentioned. It is the cause which Winston Churchill, a Conservative premier who—perhaps the noble Lord, Lord Morgan, will agree—never lost his Liberal roots, took up in the aftermath of the Second World War. This Government are turning their back on history.