Bill of Rights (UK) Debate

David Burrowes responds to a report from the Joint Committee on Human Rights and reinforces the importance of consensus in respect of any constitutional settlement.

Mr. David Burrowes (Enfield, Southgate) (Con): I welcome this debate, and the Joint Committee’s report. The subject is important, and has attracted all parties for different reasons. I commend the Committee for the depth of its analysis.

As the hon. Member for Hendon (Mr. Dismore) said, it is important to have consensus, but it has been suggested that the legislation will not be introduced until after the general election. It is important that that consensus is both political and public, and that when we consider making quick decisions to put our own house in order we do not circumvent more considered judgments on where Parliament fits into a new constitutional settlement. In the present climate of disconnection with the public, we must not rush too far ahead.

I trust that the hon. Member for Hendon, the Minister and other hon. Members involved in drawing up the new constitutional settlement are aware of the fate that befell the authors of the declaration of the rights of men and of the citizen promulgated by the French national convention in 1789. The authors, as hon. Members will be aware, were guillotined in 1794. I give way to an hon. Member who might be in the firing line.

Mr. Dismore: Thomas Paine was one of the main architects, but he was not guillotined. He was locked up for a while, but was sprung by the then American ambassador, and ended up causing as much trouble in America as he had everywhere else.

Mr. Burrowes: I am grateful for that information, and I am willing to be corrected, but my understanding is that the guillotine fell on others who were party to early consideration of the declaration. I concede that that had as much to do with the febrile political atmosphere in revolutionary France as to the quality and relevance of the rights and declaration. I do not suggest the guillotine for the hon. Gentleman, or even the Minister, but we must be aware of the political climate and how it affects constitutional processes. It is important that we consider the context carefully.

Our current political crisis may not be on the scale of that in revolutionary France, but it demands that we urgently address constitutional issues, such as the relationship of Parliament and the Executive, and recognise that constitutional questions are immediately being thrown up. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) referred to the Parliamentary Standards Bill, and in a matter of days we will, as some would say, seek to ride roughshod over the last Bill of Rights in 1689 when considering enforcement of the code of conduct. It is important that when we strive for consensus and consideration we consider all aspects, even when we must say, “No, let’s wait, and take more time to consider matters.”

Perhaps our political crisis highlights the need for a new constitutional settlement such as new Bill of Rights, but we should proceed with due caution. It is vital to the vibrancy of our democracy and our respect for human rights to ensure that Parliament is sovereign. On the comments made by the hon. Member for Cambridge (David Howarth), it is a priority to put our house in order, and to do so soon.

Before leaving the French revolution and that historical note, perhaps we should be aware of Jeremy Bentham’s criticism of the French declaration—that it failed to provide any legal remedies to enforce rights, that those rights were too abstract to have any real meaning, and that it was favoured

“by poets, rhetoricians, and dealers in moral and intellectual poisons”.

He said that in pejorative tones, but we must keep an eye on the relevance of rights and their enforceability.

It is important to discuss the matter in Parliament, which is why this debate is welcome. The hon. Member for Hendon said that it has taken its time to come to debate, and it took 14 or so months for the Government to produce the Green Paper, but at least we have some focus on the road down which they want to take us when considering human rights, what they should be, and whether and how they should be enshrined in a new Bill of Rights. I welcome our future debates and discussions.

For too long, public perception has been that Parliament and the country are looking outside the debate and issues concerning human rights, and perhaps in some ways it resembles a game of tennis at Wimbledon—it would be a welcome place to be on this bright, sunny afternoon—with human rights being knocked about like a tennis ball. To take the Wimbledon analogy further, despite human rights being debated in Britain, British participants often seem to have little involvement and little ownership, and seem to have been spectators.

At the time of the Human Rights Act 1998, the present Secretary of State for Justice and Lord Chancellor claimed, and repeated it in the Green Paper, that the Labour Government were bringing human rights home. Those words made good headlines and carry on the sporting analogy, but they were historically inaccurate. Freedom and liberty found their home 200 years earlier in common law. To take issue with the hon. Member for Cambridge, English and British rights have formed part of our identity in the rule of law from the Saxon moot courts, Magna Carta and beyond. Those important traditions form our British identity.

I shall not stay in history, because we must examine the present architecture of human rights. It is important to recognise that a key problem—

Mr. Wills: I do not want to interrupt the hon. Gentleman’s flow, but before he leaves his historical point, will he clarify something? Is it important that British citizens have the right to enforce their rights under international conventions to which the United Kingdom is a signatory? I am referring specifically to the European convention on human rights. If so, is it better for them to be able to enforce those rights in a British court, or to have to go to Strasbourg to do so?

Mr. Burrowes: If the Minister is patient, I will, as he anticipates, go through that point with some care. He can come back to me by all means if he does not think that what I say is clear.

The debate can be polarised and the criticism of positions can also be polarised. People can suggest that it is just a Eurosceptic view that expresses concerns about the way in which the European Court of Human Rights in Strasbourg deals with issues. However, it is a key problem for the people in this country that the Strasbourg Court lacks proper constitutional legitimacy in this country. That is not just my view or a Eurosceptic view. It is, as I have mentioned, the view of Lord Hoffmann. He said in a lecture in March to the Judicial Studies Board:

“Whatever one may say about the wisdom or even correctness of decisions of the Court of Justice in Luxembourg, no one can criticise their legitimacy in laying down uniform rules for the European Union in those areas which fall within the scope of the Treaty. But the Convention does not give the Strasbourg court equivalent legitimacy. As the case law shows, there is virtually no aspect of our legal system, from land law to social security to torts to consumer contracts, which is not arguably touched at some point by human rights. But we have not surrendered our sovereignty over all these matters. We remain an independent nation with its own legal system, evolved over centuries of constitutional struggle and pragmatic change.”

Like Lord Hoffmann, I would not suggest that our system is perfect, but it is important, when we seek to improve the way in which human rights are applied, that we should be making those improvements in this Parliament.

Mr. Dismore: Does that not completely blow out of the water the Conservative party’s arguments about the importance of the Strasbourg Court and how important the Human Rights Act is in the UK?

Mr. Burrowes: No, it does not—far from it. Lord Hoffmann’s criticism made the point that the Strasbourg Court had not limited itself to the strict judicial discipline of interpreting and applying convention rights. He said in relation to the way in which it has applied convention rights:

“It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States.”

He went on to give examples of circumstances in which the Strasbourg Court had sought to second-guess UK regulations. He referred to the right to privacy and family life being expanded to second-guess regulation governing night flights at Heathrow. I concur with his point. The courts have a duty to apply the law vigorously, as they do up and down this land, but when they stray into the area of law-making, which is the job of elected law-makers, that needs to be rectified. That is our concern.

Another great concern of not only the Conservative party but many others is that the Human Rights Act has, by its very process, exacerbated the problems identified by Lord Hoffmann. This may not be the time to go through the details and examples, but that matter needs to be properly considered and dealt with. We need to move away from the situation in which UK judges are matching Strasbourg’s case law in domestic law. Significantly, that is not required by the convention.

Mr. Dismore: This is one of the most bizarre points; it is one of the points of Conservative party policy that I find most difficult to understand. To follow up the Minister’s intervention, how on earth can it be to the detriment of UK citizens and other people who may not be citizens to have their cases decided by a UK court and a UK judge, rather than having to go to Strasbourg to have their cases decided? How on earth can it be against their interests to have a British judge, who understands the British way of life and British circumstances, deciding a case, rather than the Court in Strasbourg deciding it?

Mr. Burrowes: I am not resiling from the European convention, but one has to recognise that there are deficiencies. There are deficiencies in the Human Rights Act. One has only to consider the case of retention of DNA samples from innocent suspects. I understand that it took more than eight years and the matter had to be taken beyond our own courts to Strasbourg in order for the Government to be forced to understand the unlawfulness of retaining those samples. That is an example of the Human Rights Act not properly protecting human rights, and the matter eventually had to be taken to Strasbourg to confirm them. One has to recognise that the present architecture is not acceptable and is not doing the job that it should be doing.

David Howarth: This is a point that I have never quite understood about the Conservative party, either. If the problem, as the Conservatives see it, is with the Strasbourg Court’s decisions, the only remedy is to change things at that level—to obtain agreement in the Council of Europe for a change to be made in the convention itself—or to leave the convention. There are no other possibilities. One cannot change the content of the convention by changing the content of domestic law. It just does not work, so what is the answer to the problem that the Conservative party and Lord Hoffmann have identified that makes sense within the architecture in which we find ourselves?

Mr. Burrowes: The answer is to ensure that we have legislation that is applied and enforced by courts and that does not resile from the principles in the European convention; we would not wish to do that. If one looks at the text of the convention, one sees deeply held British values, such as the right of the individual against arbitrary and excessive state powers. The issue is the application and interpretation of it. One has to accept that Strasbourg—

Mr. Wills: Will the hon. Gentleman give way?

Mr. Burrowes: In a moment. One has to accept that Strasbourg Court jurisprudence has in many ways gone too far and gone beyond what our country and our courts should properly be applying. It is important that we have a Bill of Rights and that we have the opportunity with a new Bill of Rights to consider a Bill that can be properly compatible with the European convention on human rights, but is not bound by Strasbourg Court jurisprudence.

Mr. Dismore rose—

Mr. Wills rose—

Miss Anne Begg (in the Chair): To whom is the hon. Gentleman giving way?

Mr. Burrowes: To the Minister.

Mr. Wills: Shortly we shall have a vote and the hon. Gentleman may want to reflect on what he is saying. I would be grateful for just a little clarification. First he seems to be saying that there are deficiencies in the Strasbourg jurisprudence and that needs to be changed, which is the point to which the hon. Member for Cambridge (David Howarth) referred. Next he seems to be saying that he does not resile from it; he thinks that it is a wonderful thing and it embodies British values; and the problem is the way in which those rights have been brought home in the Human Rights Act. If he is in fact making that last point, can he be specific? Where specifically are the deficiencies in the drafting of the Human Rights Act? I am not talking about specific cases, in respect of which he may take issue with the judges. Which bits of the Human Rights Act would he like to be redrafted? Can he give us some clarification on that?

Mr. Burrowes: I do not propose to go into a debate on all the schedules to the Human Rights Act. We had that debate at the time. We scrutinised it and, from the Front Bench, we predicted the confrontation between the judges and the Executive in relation to a number of issues. The Minister does not wish me to, but I could go through real examples of where the Human Rights Act has failed this country’s interests. There have been instances in which the Human Rights Act has not properly protected human rights. There are examples in which it has not gone far enough and in which it has been deficient. We need to ensure that we have a Bill of Rights that is properly compatible with the European convention on human rights—

Sir Alan Beith: Will the hon. Gentleman give way?

Mr. Burrowes: I wish to take this argument further. We also need a Bill that is not wholly bound by the Strasbourg Court jurisprudence. That is not necessary; the convention does not require it. We need better to define the ECHR prescriptions and ensure that those principles are expressed so that they are relevant to all people. We need to ensure that we do that because when one considers the way in which the Government have dealt with human rights in the past 10 years—the right hon. Member for Berwick-upon-Tweed made a point in this regard——they are found wanting. That is an important context.

Sir Alan Beith: In a genuine search for truth, I want to establish whether the hon. Gentleman is proposing that we pass a new British Bill of Rights so that people can have a choice between two routes—either invoking the European convention in both British and Strasbourg courts or applying a British Human Rights Act. I shall leave aside the question of how one might impact on the other. Will we have a choice, or will the British Act depend on us abandoning our signature to the European convention on human rights?

Mr. Burrowes: What is needed is clarification. The answer is no to choice and no to abandoning our signature to the convention. We need to clarify how the ECHR applies to UK citizens. Such clarification would be welcome. Indeed, our debate highlights how welcome it would be.

Mr. Dismore: Will the hon. Gentleman give way?

Mr. Burrowes: No, I wish to make further progress.

What the Government seek in wanting to draw up a new constitutional settlement is important. We should consider their record over the last 10 years in seeking to enshrine freedom under the law. Do they have the credibility to take it forward, given that they have been willing to bypass basic legal principles in the name of administrative efficiency and control?

The Government have proposed detaining suspects for up to six weeks without charge; control orders; a plethora of criminal justice legislation, with a new piece of legislation every six months; and they have tried to remove judicial review in asylum cases. They have attempted to limit trial by jury at various times; and they have changed the burden of proof in some criminal cases to facilitate conviction. Those actions highlight an important transformation over the past 10 years.

We should also consider the increase in administrative penalties, imposed without trial; I think of the antisocial behaviour order and the fixed penalty notice. The Government have also taken intrusive powers to acquire and retain national databases giving detailed information on the law-abiding; and the law has often been dominated by trivia, with the Government devoting time to regulating on minor matters. The context is important. Ever more of our individual freedoms are being taken by the state, thus undermining individual responsibility and neighbourliness. The breakdown in the rule of law over the past 10 years is making us less safe and is eroding confidence in what was once the best and fairest justice system in the world. That is relevant, as one has to ask whether the Government have the credibility to take the matter forward. I give two examples from the Green Paper on the subject.

The first is about good administration, which is referred to in paragraph 3.39. The question is whether administrative principles lead to good administration being justiciable. We should remember how the Government have treated the parliamentary ombudsman over the last few years. They rejected her recommendations and as a result have undermined respect for that office. Such Government failures could lead to a groundswell of concern that they are not doing their job properly. Not respecting the role of the ombudsman could lead to support for some justiciable rights on such matters.

The second example is in relation to jury trial, which was referred to by the hon. Member for Cambridge. A good argument can be made for a right to jury trial to be enshrined in a bill of rights, but where do the Government stand on the matter? They have a bad history in seeking to remove jury trial. Despite votes to kick out Government proposals on limiting jury trial, they still continue to perpetuate the debate. Indeed, paragraph 3.30 states:

“There is also a legitimate debate over whether some cases, particularly serious fraud cases, are simply too complex to present properly to a jury and therefore, jury trial is an unreliable way of delivering justice in those cases.”

The Government are still lukewarm about that important principle. Perhaps additional support is needed to ensure that it is enshrined in a Bill of Rights, given their ambivalence on the subject.

In some ways, that is in contrast to the commentary and consideration of the Joint Committee’s recommendations on whether economic and social rights should be incorporated in a new Bill of rights. However, I recognise the scepticism of the right hon. Member for Berwick-upon-Tweed on those rights being justiciable, particularly on whether they would weaken rights that should properly be included in a Bill of Rights.

Concern was expressed by the Joint Committee, and must be expressed again, on how those rights would be enforced. The Government do not seek to go down that route at this stage in the continuum, but where do they wish to go? It is a matter of great concern, given that we want to reassert the authority of Parliament, that the Government should think of abdicating responsibility for deciding how scarce resources should be allocated to unelected judges.

In an article in The Sunday Times on 22 March, the Minister referred to “constitutional expression”, saying that

Words certainly can have power: they can raise hope. Constitutional documents may contain symbolism and lead to aspirations, as well as enforceable rights. However, words without legal force will mean us ending up with those imaginary rights that Bentham thought would lead to anarchy in France. I do not suggest that that would be the case today, but would it not further perpetuate people’s disconnection with Parliament?

People believe that Parliament should be the place to deliver such economic and social rights, scrutinising legislation to ensure that duties are explained and delivered. However, such rights would not deal with what many people say they want when answering polls on whether they want a decent house or a decent health service. Do they want to see such things properly shown and exhibited in a constitutional settlement rather than having the Government delivering them?

The Government would have us believe that a quiet revolution is in place, that it will lead us to a next stage, and that all is rosy in the constitutional garden. Thankfully, legislation on the subject will not happen until after the next general election. We should certainly agree on that point, because we shall then have a new Parliament. We shall then have a new Government—one that has not been guilty of constitutional vandalism in that garden, has not been trampling on centuries-old liberties and has not been engaging in over-regulating conduct.

Although the Government want us to deliberate on the matter and discuss it—we should try to reach consensus—we will not be able to reach that new dawn of constitutional change if the Government do not recognise the importance of restoring trust and confidence. That trust and confidence has been broken by excessive state prescription and a lack of respect for the need to restore tradition, freedom, justice, liberty and tolerance. The Government have failed by neglecting that need, and it will indeed take a general election for it to happen.

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