On 2 July, the House of Lords debated a Motion to Take Note, proposed by Lord Wallace of Tankerness, (LD) “That this House takes note of the challenges facing the culture of human rights and civil liberties in the United Kingdom”, [HL Hansard, 2 July 2015 : Vol 762(25) Col 2177]. The debate was informed, in part, by the House of Lords Library Note of 26 June 2015, Human Rights and Civil Liberties in the United Kingdom, LLN-2015-0016. A number of valuable points were raised by Lord Wallace, including:
“ … Government have made clear their intention to do away with the Human Rights Act and to replace it with a British Bill of Rights. The question is: what values will such a Bill of Rights enable or secure that are not already enshrined in the Human Rights Act through its incorporation of the European Convention on Human Rights? Are there rights which we currently enjoy that the Government are keen to strip out of a UK Bill of Rights?” [Col 2179];
“Perhaps the real problem is not with the Human Rights Act but with the fact that it gives United Kingdom citizens a pathway to the Strasbourg court, with the ability to challenge—in Europe, no less—a decision made by government. The right to take a case to Strasbourg will not be revoked by the repeal of the Human Rights Act”, [Col 2179];
“The last published edition of the Ministerial Code states as a general principle the overarching duty on Ministers to comply with the law, including international law and treaty obligations. If, as suggested in the Conservative manifesto, the Government wish to curtail the role of the European Court of Human Rights, is the Prime Minister prepared to suspend that part of the Ministerial Code in respect of the European Convention on Human Rights, with all the consequences that would have for a Government who protest the importance of the rule of law—or would the Government renounce the convention, and with it our membership of the Council of Europe? [Col 2180];
Lord Lester of Herne Hill (LD) added:
“The Act requires our courts to have regard to Strasbourg judgments, but not to be bound by them. Our Supreme Court has been robust in recent years in subjecting Strasbourg reasoning to critical scrutiny, and explaining where it begs to differ. A valuable dialogue now takes place, and the judgments of our courts are influential in Strasbourg,” [Col 2186]
and summarizing concerns arising from the proposed UK Bill of Rights stated:
“The new Lord Chancellor and Justice Secretary, Michael Gove, is in charge of human rights policy. His predecessor, Chris Grayling, and the Home Secretary, Theresa May, are hostile to the Human Rights Act and to the Strasbourg court. So is Michael Gove’s junior Minister Dominic Raab, as he showed in replying to the Westminster Hall debate on Tuesday. On 23 June, Dominic Raab told the Commons that the Government’s “plans do not involve us leaving the convention”, but he added that “our No. 1 priority is to restore some balance to our human rights laws, so no option is off the table”.—[Official Report , Commons, 23/6/15; col. 748.].
On Tuesday, he again told the Commons the same thing. I ask the Minister to explain quite unequivocally whether leaving the convention is or is not on the table as a possibility”.
In concluding the debate, Lord Wallace said [Col 2209]:
“We have had the benefit of historical perspectives from the noble Lord, Lord Lexden, and some very keen legal analysis from my noble friends Lord Lester and Lord Marks and the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Carswell, while practical issues, particularly disability rights, were raised by my noble friend Lord Addington.
We heard a very passionate speech from the noble Lord, Lord Cashman, which brought home the real personal meaning of rights for many people. Those who heard the noble Lord’s speech will remember it for some time to come. He reminded us that one of the important issues about rights is that they are often about trying to protect minority interests against what is sometimes referred to as the tyranny of the majority. Some of the case examples given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, showed how majority interests can sometimes ignore minority interests”.
Important was the clarification provided by the Minister, on which Lord Wallace said:
“He made a number of points. He said that there is a willingness to consult. That is a far cry from some of the rhetoric at the time of the election and beforehand. If he wonders why there is concern that rights are going to be restricted, it is because of the kind of rhetoric that has driven this, and we are right to be vigilant.
He talked about enhancing rights. My noble friend Lord Marks of Henley-on-Thames gave him a wide range of additional rights that could be added.
The Minister gave a very clear indication that there is no intention to leave the convention. I think that answers the question my noble friend Lord Lester asked about whether that had been qualified by Ministers in the other place saying that everything is on the table. He seems to have made it very clear that leaving the convention is not on the table, which is welcome. I take the point he made about having regard to the devolved Administrations. We look forward to making our contribution to any consultation that takes place. As I indicated in my opening remarks, we will be extremely vigilant because there are very important rights that have been used in so many practical ways and we do not wish to see our standing as country that upholds the torch of human rights being diminished.”