§ [Relevant document: Sixth Report from the Joint Committee on Human Rights, Session 2002–03, HL Paper 67-I and HC 489-I.]
§ Motion made, and Question proposed, That the sitting be now adjourned.—[Joan Ryan.]2.30 pm
§ Jean Corston (Bristol, East)
I am grateful for the opportunity to debate the report of the Joint Committee on Human Rights, of which I have the privilege to be Chair, into the case for a human rights commission.
I shall preface my remarks with an explanation of why Committee members are today a little thin on the ground. Two of my colleagues are unable to be present, and I want to explain why. My hon. and learned Friend the Member for Redcar (Vera Baird) has an affliction of which most of us have been aware in that she has lost her voice. She wanted to take part in the debate, but will be unable to do so. I gather that my hon. Friend the Member for Hull, North (Mr. McNamara) has just become a grandfather and has gone to see the baby. We would all agree that it is a proper use of his time to go to see a new addition to his family, although he would have liked to be present to support the Committee's report.
The origin of the inquiry was the 1998 Government White Paper entitled "Rights Brought Home", which said:
The Government's priority is implementation of its Manifesto commitment to give further effect to the Convention rights in domestic law … Establishment of a new Human Rights Commission is not central to that objective.The Government's conclusion is that, before a Human Rights Commission could be established … more consideration needs to be given to how it would work … and there needs to be a greater degree of consensus on an appropriate model among existing human rights bodies.However, the Government has not closed its mind to the idea of a new Human Rights Commission at some stage in the future in the light of practical experience of the working of the new legislation. If Parliament establishes a Committee on Human Rights, one of its main tasks might be to conduct an inquiry into whether a Human Rights Commission is needed and how it should operate. The Government would want to give full weight to the Committee's report in considering whether to create a statutory Human Rights Commission in future.After our Committee was established in January 2001, one of our first decisions was to rise to that challenge and launch the inquiry. The Committee was renewed after the general election, and we reported in March 2003. The Committee probably set a record, as its report probably had less attention from the media than any Select Committee report that I can think of. That is because, through an accident of timing, we published the day after Parliament voted to take military action in Iraq.
The inquiry took nearly two years, and we amassed a great deal of written evidence. Most of it was printed in our interim report, which was published in September 140WH 2002. We visited Auckland, Belfast, Canberra, Cardiff, Edinburgh, New Delhi, Sydney and Wellington in the course of the inquiry and took extensive oral evidence. Overall, we visited the devolved institutions and countries in the Commonwealth jurisdiction that have human rights commissions. We were particularly helped by the report of the British Institute of Human Rights, entitled, "Something for Everyone", which was funded by Comic Relief. We express our thanks to all concerned.
There is often talk about a culture of respect for human rights. It is important to discuss what that means. Human rights are not only about offering those in other countries protection from the worst excesses of anti-democratic and despotic regimes. Nor, despite occasional spats between judges and ministers, is the Human Rights Act 1998 the concern only of those in this country who are fundamentally at odds with society, or, to quote Richard Littlejohn in The Sun,
a charter for terrorists, violent criminals, drug dealers, nonces, assorted troublemakers and chancers.Human rights can be violated every day. The right to be free of degrading treatment is fundamentally disregarded when, to suit the convenience of staff, old people in a residential home are fed their breakfast while sitting on a commode, or when a terminally ill patient is denied appropriate pain relief. The right to a private life and a family life is breached when children in care are kept hundreds of miles from their siblings, or when an elderly man is left naked in public while undergoing medical procedures.
The right to life is violated by the indiscriminate use of do-not-resuscitate orders in the health system, or where traveller children have a mortality rate 10 times that of those in the settled community. The right to marry and found a family may be unfairly breached when adults with learning disabilities are indiscriminately forbidden to form intimate relationships. The right to education may be systematically denied to children from particular backgrounds who are disproportionately subject to exclusions, or where a school fails to protect a child from bullying.
The right to a fair hearing, or to receive and impart information, may be unjustifiably denied to people suffering from mental illness. Rights may be breached when a deaf person is denied an interpreter or is interviewed by someone who fails to recognise their needs. The right to peaceful enjoyment of possessions may be threatened if those entitled to state benefits are treated without respect or concern for their individual circumstances. The rights of carers to a family life may be breached by the decisions of social services providers.
When the Government introduced their proposals to bring rights home by incorporating the European convention on human rights in United Kingdom law, they hoped that that would help to nurture what was described as a culture of understanding of rights and responsibilities in our society, and not simply provide remedies in the courts for individual victims for breaches of their rights.
§ Mr. William Cash (Stone)
The hon. Lady has read out a list of matters relating to people's relationships to 141WH one another and to public authorities that are of obvious concern. Will she explain to what extent domestic legislation could provide those remedies?
§ Jean Corston
If the hon. Gentleman will forgive me, I shall come to that point later. I shall say simply that the illustrations that I gave are not hypothetical but were given in the report of the British Institute of Human Rights.
We know that the UK is not prone to gross violations of people's rights. We are relatively lucky. However, the transformation that it was hoped the Human Rights Act would bring about has not yet happened. The state and its representatives are required not only to avoid breaching those rights, but to take active steps to enhance people's capacity to take advantage of their rights. A culture of respect for human rights would give full recognition to that positive concept of rights. The key to making that a reality lies in creating a culture in public life in which those fundamental principles are seen as central to the design and delivery of policy, legislation and public services. It is not simply a burden on the state to create such a culture of respect for human rights: we all need to understand our obligations to uphold the rights of others, including the rights of those who work for public authorities. In such a culture, individuals would understand not only that they enjoy certain rights as an affirmation of their equal dignity and worth, but that this sense of individual worth should go with a sense of personal responsibility and social obligation. A culture of respect for human rights would create a climate in which such respect became an integral part of the state's dealing with us, our dealings with the public authorities and our dealings with one another other.
The Joint Committee on Human Rights believes that the development of a culture of respect for human rights could help to create a more humane society, a more responsive Government and better public services. It could, we believe, help to deepen and widen democracy. We share with the Government a belief that it is a goal worth striving for.
§ Mr. David Kidney (Stafford)
Does my hon. Friend agree that the human rights in the convention are sometimes contradictory, in terms of different people exercising their rights, and that a greater understanding of the totality of the convention would also lead to a greater emphasis on people's responsibilities to others as well as their rights?
§ Jean Corston
I entirely agree. Indeed, I will address those issues later. While establishing the case for a commission we had to ask ourselves as a Committee whether human rights meant anything for ordinary people in Britain. As I said to the hon. Member for Stone (Mr. Cash), the examples of breaches of rights are not hypothetical. Most of them come from the report of the British Institute of Human Rights, which was designed to contribute to our examination of whether there was a need for a human rights commission. As the interviewee who gave the BIHR the title for its report put it, it set out to ask whether human rights could be
something for everyone, for the good of the people.142WH The Joint Committee concluded that the Human Rights Act has not yet fulfilled its potential to be an agent for positive change in our society. We recognise that the Government are making some progress in trying to establish this positive change through the introduction of citizenship education in secondary schools, which started last September and which we hope will lead to more responsibility and understanding among young people as they embark on adult life.
The Committee believes that more work needs to be done to promote human rights as a set of fundamental ethical standards for the way the state treats its citizens and for all our social relations. Over the past two years, the Committee has been examining what has been happening outside the courts since the Human Rights Act became law, and we have found little evidence of the development of the culture of respect for human rights that the Government were aiming for. We asked why there seemed to be a failure to recognise the part that human rights could play in promoting social justice and social inclusion and in the drive to improve public services, despite the sterling efforts of the Lord Chancellor's Department to get this message across to public authorities.
We found widespread evidence of a lack of positive respect for the human rights of those who use public services, especially those who are most vulnerable and in need of protection. We also found that public authorities, such as local councils and hospitals, do not put respect for human rights at the heart of their policies and practices. They all try to do enough to avoid litigation, but not enough of them try to do more. However, the Committee does not conclude that that is a result of deliberate neglect for the most part. It is a result of a lack of leadership and a lack of help. There is not enough of a vision or an administrative framework and guidance reaching public authorities to tell them how a culture of respect for human rights might look or how it can be delivered. Our conclusion is that human rights, too, need a home and an independent champion.
The role of that champion would be to encourage a respect for human rights among public authorities as a matter of best practice rather than risk avoidance. It would promote an understanding that human rights principles provide a framework within which vulnerable and disadvantaged people can negotiate with public authorities for better conditions and treatment. It would conduct inquiries into systemic problems and encourage mediation in situations of conflict, participate in public debate and be a beacon and rallying point for the defence of human rights values when commitment to those was weak or under attack, whether from within Government or without. There is a compelling need for a commission with sufficient powers and independence from Government to promote and protect human rights in the United Kingdom. No competent Government need fear having a human rights commission. It can be a great asset.
I shall give two examples that I learned about when our inquiry was already under way. When there was communal violence in Gujarat, the Indian Government sent the chairman of the Indian Human Rights Commission there to conduct an investigation and to report to Parliament. When we had similar problems in Burnley, we had no such mechanism, and my hon. Friend the Member for Wallasey (Angela Eagle), then a 143WH Home Office Minister, was sent to report. I have the greatest respect for her commitment and expertise, but she had many other responsibilities in the Home Office. In addition, because her inquiry was conducted in the full spotlight of politics, under which people expect instant reports and instant solutions, she was hidebound in ways that would not have applied to an independent body, which would have been in a position to take its time, to examine the causes and to make recommendations to Parliament in due course.
When we were in New Zealand, I was told that some difficulty had been encountered in the assimilation of asylum seekers of a certain race in relation to the Maori population. I asked the chair of the New Zealand Human Rights Commission what action had been taken, and was told, as if it were the most obvious thing in the world, that the commission mediation service had been sent to deal with it. When the identical situation occurred in my constituency, which experienced conflict between two racial groups, one comprising asylum seekers, the police had to be called. It was not a good way of dealing with a situation that involved people who had to live cheek by jowl every day.
§ Mr. Cash
The hon. Lady's comments have prompted two questions to occur to me. She mentions a commission's powers and independence from Government. On the basis that it: is intended to be a statutory arrangement, does she have in mind any powers of enforcement? If so, what kind, including penalties? The other question is about the use of the word victim under the convention and the Act. Has she thought about the enforceability of class actions?
§ Jean Corston
The report, as the hon. Gentleman will know, refers to some of those issues. We are conscious of the fact that the Committee's priority is to make the case for the commission. We have subsequently embarked on further consultation with interested groups about the kinds of powers that the commission should have. However, we are in cross-party agreement that the main jobs of the Committee are the matters to which I have referred: the promotion of a culture of respect for human rights, inquiries and mediation support. The definition of a victim was not something to which we gave particular consideration.
Halfway through our inquiry, the Government announced their decision in principle to wind up the three existing equality commissions dealing with discrimination on grounds of gender, race and disability, and to create a new single equality body that will cover discrimination on grounds of age, religion or belief and sexual orientation. Although at first glance that might look like a separate project from the one we have been examining, the two are closely related. The right to equal treatment is a fundamental human right, and the right to enjoy other rights without discrimination is also a core human right.
We made it clear in our interim report last September that we did not believe it would be either intellectually coherent or practically effective to try to resolve the issue of the single equality body without resolving the issue of a human rights commission. In October 2002, the next 144WH consultation paper from the single equality project was published. It noted the complementary nature of equality and human rights, which it described as beingreflected in the government's vision of a society based on fair and equal treatment for all and respect for the dignity and value of each person".It went on to note the historical distinction between the focus of human rights on fundamental civil and political rights, designed to safeguard individuals in their relationship with the state, and the focus of equality legislation on social and economic protection, in particular protection from discrimination in employment and in the provision of education, goods and services. It also recognised that discrimination law is beginning to go beyond regulating relationships between individuals. For example, the Race Relations (Amendment) Act 2000 placed obligations on public authorities to promote equality of opportunity for all races across the breadth of their activities.
Similarly, one of the Human Rights Act's aims is to drive cultural change, placing obligations on public authorities and increasingly on individuals. In our report, we examined the institutional options for the single equality body and the commission we proposed to promote and protect human rights. Although there are plausible models that separate human rights and equalities institutionally, we concluded that our preferred option was for an integrated human rights and equality commission.
Those who are sceptical of that integrated model fear that it would lead to tension within the institution. It certainly would, but there will in any event be tensions between six equality strands within a single equality body with or without human rights responsibilities. Even without responsibility for human rights protection, the single equality body will find that the rights of the minorities it protects can conflict. The new body, regardless of whether it has responsibility for human rights, will need to develop a culture in which the tensions can be resolved.
On the positive side, with the human rights responsibilities conjoined with the equality functions, using a human rights framework could provide a methodology to enable the differences to be reconciled. Some people fear that an integrated body would simply have too much to do. Any new single equality body faces a formidable challenge. We should also recognise that putting human rights in the mix will be an addition to rather than a multiplication of the challenge. It certainly seemed to work in Australia.
The champions of each of the six equality strands may express fears that their concerns will be the most controversial, least recognised or least popular. There are also concerns that the priorities of the human rights agenda could swamp or marginalise those of the equality agenda within an integrated institution. It is undeniable that a broad human rights remit would bring with it additional competing concerns to be reconciled with scarce resources. At the same time, we should recognise that in practice, while some issues would clearly engage discrimination issues and others would engage human rights issues, many would engage both: for example, an inquiry with an age focus and a human rights dimension; or a human rights inquiry with a strong focus on race, religion and belief.
145WH The integrated commission may have the ability to adopt a more holistic approach than two separate bodies could, for example, to a situation involving discrimination on grounds of age, systemic failure in services to people with a disability and deprivations of fundamental rights.
The practical question whether to have one or two bodies must, however, be considered alongside our main principled disquiet about both models for two separate commissions. That disquiet is that those models would create an institutional divide between the equality agenda and the wider human rights agenda, weakening the principles of the interdependence and indissolubility of human rights.
Perhaps the strongest argument for bringing the equality body and the human rights body under one roof is that each would gain energy and inspiration from the other. If the focus of the organisation were to be on taking a lead in promoting a culture in Britain that respects the dignity, worth and human rights of all its members with all their differences, that would seem to favour an integrated structure for equality and human rights.
We had to consider the issue of devolution. There are problems to be resolved in matching the Committee's vision to the reality of the devolution settlement. We do not propose to interfere in the current institutional arrangements in Northern Ireland. In Scotland, there will be issues about how to integrate the work of the proposed Scottish human rights commission with the body that we propose.
There are two obvious solutions. One is to establish a separate Scottish equality body. The other is to have a variable geometry, with the human rights and equality commission dealing only with reserved matters in relation to Scotland. It should not be impossible to devise a protocol between the two bodies to ensure comprehensive coverage of human rights issues— coverage that would not be provided by having a human rights commission in Scotland that was a devolved body only.
In Wales, there did not appear to be a strong clamour for a separate human rights body, and it would be difficult to configure one within the devolution settlement. However, there needs to be a distinct Welsh identity within the body we propose, not least because it will have to address the specific cultural rights issues relating to bilingualism.
§ Mr. David Heath (Somerton and Frome)
The issue is the limitations of the powers that are devolved to the National Assembly for Wales. England and Wales share a common jurisdiction, and to divide a commission's responsibilities within a single jurisdiction would be a recipe for a great deal of confusion.
§ Jean Corston
The hon. Gentleman is entirely right, in terms of the common jurisdiction. It would also be right to say that, after our visit to Wales, it was clear that it was not a burning issue to the extent that it was in Scotland.
§ Mr. Cash
I admit to being a little puzzled. Why would the people of Wales not consider the abuses that the hon. Lady described at the beginning of her contribution to be—in her words—a burning issue? The people of one part of the United Kingdom are not so different from the others. If the case that she has put for a human rights commission has any validity, it ought to apply to everybody.
§ Jean Corston
The Committee is proposing a body for England and Wales; there is going to be a separate body in Scotland; and there is a separate body in Northern Ireland. We were seeking to find a way of accommodating the devolution settlement to create a human rights commission for all the peoples of the United Kingdom, while recognising the difficulties with regard to reserved powers in the various jurisdictions.
In conclusion, I believe that the Government should seize the opportunity to create a human rights and equality commission to emphasise that human rights are for everyone, and that equal treatment and respect for individual dignity are the concern of us all. Building a culture of respect for human rights is an ambitious vision, and there are many barriers to achieving it. The greatest of those is ignorance. In such a culture, people would be better informed about their rights and what those rights would mean in practice. The most vulnerable would be better protected from violations of their human rights. Government and those who work for them would promote and protect human rights standards, and we would treat each other with dignity, fairness and respect. To help to build that culture, we need a human rights commission.
I was fortunate to be assisted by the Joint Committee on Human Rights, whose membership comprises Members of this House and of the other place, cross-party and of no party. We hope that when the Government announce their next round of decisions on the new arrangements for the promotion of equality they will set out clearly their plans for establishing a human rights and equality commission. We want an assurance from the Minister today that the issue will not be dodged.
§ 3 pm
§ Mr. Richard Shepherd (Aldridge-Brownhills)
I am grateful to have served under the distinguished chairmanship of the hon. Member for Bristol, East (Jean Corston). We were well served by the Clerks and some of the most distinguished and clever advisers one could imagine. However, I am the author of the minority report. I am grateful for the education that the House provided in nominating me to serve on the Joint Committee on Human Rights, as I begin to understand something about the culture of human rights.
As the Chairman said, the terms of reference of the JCHR are to consider matters relating to human rights in the United Kingdom. The fundamental rights to which Parliament has directed our attention are the convention rights as defined by the Human Rights Act 1998, which largely incorporated the European convention on human rights into UK law. However, those convention rights do not provide an exhaustive definition of the international human rights provisions relevant to the United Kingdom. They go far beyond the 147WH political and civil freedoms that have characterised our sense of liberty and personal autonomy, what the international community refers to as "first-generation human rights".
The UK is a signatory to many international conventions, covenants and other treaties which, although they are not directly justiciable in the United Kingdom courts, or at least at present subject to determination in individual cases by bodies such as the European Court of Human Rights, impose certain obligations on the UK Government in international law. By some definitions, there are more than 100 such international instruments relevant to human rights, if the optional additional protocols to various instruments are counted separately. All of those form part of what the JCHR report refers to as the culture of human rights.
In seeking to embrace those second and even third generations of social and economic rights, the Joint Committee is committed to a profound and radical programme that has never been subjected to national or democratic scrutiny. Indeed, the instruments have not even been scrutinised by the Joint Committee itself, nor have they been measured against our existing national law by the Committee. All the obligations have been assumed by the United Kingdom by the exercise of the royal prerogative and, as I said, have not received detailed democratic scrutiny and the legislative endorsement of the House of Commons. Although the instruments have not been incorporated directly into law, and therefore do not give rise to legal rights and obligations that can be directly enforced in the courts of the United Kingdom, like any other treaty they bind the UK as a contracting state in international law subject to any lawful reservations entered by the state.
The fact that no body, with the exception of the European Court of Human Rights in respect of the European convention on human rights, can authoritatively adjudicate on the compatibility of the United Kingdom's actions with these instruments does not mean that the rules are not binding. Incompatible action is contrary to international law, but in the absence of an effective judicial remedy, the rules contained in the instruments are examples of what have been called rules of imperfect obligations, that is, rules that are obligatory but breach of which does not attract the imposition of a formal sanction by a judicial body.
However, despite not having been enacted in national law, the instruments are capable of having an impact on the law in the United Kingdom. The effects are broadly similar to those which the European convention on human rights had before it became part of domestic law in the United Kingdom through the Human Rights Act 1998 and the devolution legislation.
So far as it is relevant to the convention on the rights of the child, Lord Bingham described them in the pre-Human Rights Act 1998 period as follows:First … where a United Kingdom statute is capable of two interpretations … the courts will presume that Parliament intended to legislate in conformity with the convention and not in conflict with it …Secondly, if the common law is uncertain, unclear or incomplete, the courts have to make a choice … they will rule, wherever possible, in a manner which conforms with the convention and does not conflict with it.148WHThirdly, when the courts are called upon to construe a domestic statute enacted to fulfil a convention obligation, the courts will ordinarily assume that the statute was intended to be effective to that end …Fourthly, where the courts have a discretion to exercise … they seek to act in a way which does not violate the convention.Fifthly, when … courts are called upon to decide what, in a given situation, public policy demands, it has been held to be legitimate that we shall have regard to our international obligations enshrined in the convention as a source of guidance on what British public policy requires."—[Official Report, House of Lords, 3 July 1996; Vol. 573, c. 1465–67.]
§ Mr. Cash
My hon. Friend's expert description of the position and statements of Lord Bingham deserves careful attention. Does my hon. Friend accept that irrespective of the general sweep of Lord Bingham's comments, it still remains an absolute that, provided that it is express and unambiguous, the United Kingdom Parliament can legislate inconsistently with the Human Rights Act 1998? Therefore, subject to the question of whether the European constitution will override those arrangements, we can still arrive at decisions that are thought to be expedient and right for the United Kingdom.
§ Mr. Shepherd
I believe that the courts still maintain the principle of the supremacy of Parliament, so my hon. Friend is right.
To continue the example, the European Court of Human Rights has used the convention on the rights of the child as a guide to the proper interpretation of rights and obligations under the European convention on human rights as they apply to children, and national courts in the UK have followed that example, as they are required by section 2 of the Human Rights Act to take account of the Court's judgments when interpreting convention rights. In doing that, UK courts have the authority of Parliament through the Human Rights Act, but there is no direct parliamentary authority for taking account of treaties in the ways outlined by Lord Bingham.
Furthermore, Parliament has no real power to control the treaty obligations to which the UK subjects itself. The House of Commons Procedure Committee noted in July 2000:The power to make treaties is a prerogative power vested in the Crown and exercised on the advice of the Secretary of State for Foreign and Commonwealth Affairs in consultation with other Ministers; there is no constitutional requirement for treaties to be laid before or approved by Parliament. While many treaty obligations necessitate the introduction of primary or secondary legislation which must be passed by Parliament, treaties which require no such legislation … or which require only secondary legislation subject to negative resolution … may come into force without any parliamentary debate having taken place.As is the case with almost all other international agreements to which this country is a signatory—two of the most significant examples being the United Nations charter and the Washington treaty establishing NATO—the UK's ratification of the convention on the rights of the child has never been formally voted on by Parliament.
To sum up the position in national law, the provisions of the convention on the rights of the child do not have the force of those of the European convention on human rights, which have become part of the law in the UK as 149WH mediated through the Human Rights Act and the devolution legislation. In its concluding observations published on 4 October 2002, the UN Committee on the Rights of the Child observed that:While noting the entry into force of the Human Rights Act 1998 which incorporates the rights enshrined in the European Convention on Human Rights into domestic law".it wasconcerned that the provisions and principles of the Convention on the Rights of the Child—which are much broader than those contained in the European Convention—have not yet been incorporated into domestic law.It encouraged the Governmentto incorporate into domestic law the rights, principles and provisions of the Convention to ensure compliance of all legislation with the Conventionand
a more widespread application of the provisions and principles of the Convention in legal and administrative proceedings".I shall quote what the then Minister with responsibilities for children and young people, the distinguished right hon. Member for Southampton, Itchen (Mr. Denham), said when the Joint Committee asked him about the prospects of incorporation, because that is at the heart of some of the concerns about the process on which we have embarked. He said:
In terms of incorporation certainly we are not looking to incorporate the Convention or, indeed, individual elements of it. It is really framed, virtually all of it, in very aspirational language and not in the sort of language that seems easy to put into primary legislation although I think it is possible to point to areas where legislation we have enacted is helping to enact the spirit of the Convention, for example the statutory guidance on listening to young people in schools which is part of last year's Education Act".Despite the democratic deficit in the ratification process, the Government have assumed obligations under the convention, which include the duty to implement its provisions to the maximum extent possible within the United Kingdom, to publicise those provisions and to make periodic reports on its implementation. In addition, and more importantly, it will undoubtedly have legal effects and be used by the courts like any other treaty in the ways outlined by Lord Bingham.
With treaties in the traditional sphere of international relations, such as the Washington treaty, the lack of a requirement for explicit parliamentary consent may be acceptable, as that conforms to the traditional division of functions between the Executive and the legislature. However, when the same procedure is used for international instruments that will alter the internal law of the UK, or at least affect how the laws are interpreted and applied, that lack of parliamentary consent is no longer acceptable.
§ Mr. Cash
I shall try to amplify one of the points that my hon. Friend is making. In the context of the proposal, which I understand the Government have acceptable in principle, that the European Union should be endowed with a legal personality in relation to the making of treaties, is my hon. Friend concerned that the arguments that he has advanced, quite correctly, about the manner in which treaties are made in the United 150WH Kingdom would be considerably stronger if the EU had legal personality and negotiated those treaties in the same fashion?
§ Mr. Shepherd
In part, my hon. Friend must be right, but the prospective treaty and change in the law to which he has referred will come before Parliament, will be legislated and will be considered according to the democratic accountability process.
I said that the lack of parliamentary consent was no longer acceptable. There is an inbuilt danger that mechanisms and structures designed to protect the broad concept that is called human rights will come into conflict with democracy and accountability. Although there is widespread agreement that a number of fundamental rights should be respected when those rights are expressed in general terms, the real difficulties come with the detailed interpretation of the general principles. That is perhaps the point alluded to by the hon. Member for Stafford (Mr. Kidney). When human rights are applied to concrete situations, it is often the case that one person's right is another person's burden, or that a right, if interpreted in a certain way, can impose a serious burden on society as a whole. The interpretation of the scope of human rights often involves political value judgments on which there is legitimate scope for disagreement across the political spectrum or in society.
The question, therefore, is not whether human rights should be protected, but how they should be protected in a way that is compatible with democratic accountability. This country has one of the longest traditions of respecting and upholding fundamental rights and liberties. That tradition has been firmly based on the principle that it is the people's representatives in Parliament who have the primary role of protecting the liberties of the citizen. It can be argued, and I often have, that the way in which Parliament fulfils that task could be improved. However, the problem with hiving off the protection of that culture of rights to courts and bodies such as the proposed human rights commission is that that further weakens the role of Parliament and further detaches decision making in this sphere from accountability to the electorate.
§ Mr. Kidney
May I put an alternative view to sound the hon. Gentleman out? I have been waiting patiently to hear him argue that we are hiving off a responsibility that parliamentarians should keep for themselves. According to his argument, the courts, by virtue of their rules of interpretation, will apply conventions from outside Parliament, and the Government will approve conventions by treaty, without Parliament's consent. The only people not in the loop will be parliamentarians. Does not he agree that the report envisages the commission producing reports to Parliament and, indeed, to the Committee on which he sits? That will empower parliamentarians to have a greater influence in such matters.
§ Mr. Shepherd
The hon. Gentleman omitted the one group of people about whom I am concerned. The classes to which he referred exclude the electorate. We are the representatives of the electorate—the people out there, whose passions and opinions are part of the balance of arguments on what are often social issues. 151WH That is what is fundamentally missing from the construct before us, as I shall explain. That is the burden of my argument.
One aspect of the proposed commission causes particular concern because it links in with the problem of a democratic deficit. It is proposed that the commission would take into account international treaties and agreements, in addition to the ECHR. It would also take account of a wide range of non-treaty materials, such as recommendations or resolutions from international committees and bodies. That is a serious challenge to democratic accountability and undermines the United Kingdom's long-standing constitutional rule that international treaties and agreements are not a source of law in this country, unless and until Parliament approves and gives force to them.
Such international agreements, resolutions and recommendations are not arrived at through a democratic mechanism. Few, if any, have ever been debated or approved by Parliament. In practice, many will not even have been considered and approved by Ministers. The details will be known only to diplomats and experts. The majority of such instruments will be unknown to the wider electorate and, indeed, to most members of the Joint Committee on Human Rights.
Under the Committee's proposal, however, the commission would invoke that ill-defined body of materials to influence and control the behaviour of the Government, public bodies and possibly Parliament. The fact that international obligations have been assumed without Parliament's concurrence or consent will be used to argue that Parliament should go along with them, regardless of the wishes of the electorate.
Ironically, the Committee's proposal to establish the commission is founded on the so-called Paris principles, which were promulgated by the United Nations Commission on Human Rights. Parliament has never approved that set of principles.
The fact that there are, by some definitions, more than 100 international instruments that impose obligations on the British Government and are relevant to human rights is not an argument for empowering a commission to give effect to them in the way that the Committee's majority report suggests. Rather, it is an argument for bringing democratic scrutiny to bear before more such obligations are assumed and, indeed, for Parliament to review existing obligations to ascertain whether they are indeed necessary or desirable.
The elevation of the social and economic concerns adumbrated in international instruments that have not been considered through the democratic process and of which most democratically elected representatives are unaware would pre-empt Parliament's historical purpose of ascribing priorities and allocating public finance. Through their accountable representatives, the people should determine such matters by commission, not omission.
The value of non-governmental organisation pressure groups that advocate social and economic change is not disputed; they represent a vital dynamic in our society, and their advocacy is an essential part of informing and leading public opinion. However, the determination of public policy should remain with the people and be expressed directly through Parliament.
152WH The Prime Minister recently recognised that neither statute nor international treaties are immutable. Outside and, more recently, inside Parliament, he has said that the Government are prepared fundamentally to examine our obligations under the ECHR.
§ Mr. Kidney
The hon. Gentleman has just given a strong endorsement of the role of non-governmental organisations in promoting education and understanding of public policy. Why does he exclude the human rights commission from that endorsement?
§ Mr. Shepherd
One is part of a public process of citizens taking on the advocacy of special interests: freedom of information, public concern at work, or disability groups. It is not a campaign set up and organised by the state. I give a cheer to those campaigns that are not part of the Government, but are emanations of citizens' individual judgments and decisions on major matters of public policy. They are entirely different.
The Human Rights Act 1998 came into effect in England and Wales in October 2000, and so there have been just over two and a half years of experience of its operation. There is still uncertainty about its implications for public policy and its effect on the democratic mandate. Our laws and the processes by which we arrive at them are the mirror of our culture. It is always possible for a Government to seek to enact the provisions of all or any of the international instruments—political, economic or social—that constitute what is called human rights.
The convention rights as set out in the 1998 Act reflect most of the essentials of what our constitution has long understood as our political and civic liberty. Those were not determined by the charter, but evolved through our legal and constitutional history. In a real sense they represent the finest emanation of our political culture and define our sense of liberty.
It should be understood that Plato's guardians, sitting as a court in Strasbourg, do not secure our liberties. The custodians of our freedom are the people themselves who, through the institutions—both Houses of Parliament, our common law and our independent judiciary—have fostered, developed and safeguarded that culture of liberty. It is the spirit and the custom of the people that developed and advanced the civic and political principles incorporated into the European convention long before it came into existence.
There needs to be a wider public understanding of how the web of treaties and instruments, which have never been democratically considered, is used by the European Court of Human Rights and, consequently, by our national courts and judges to develop a case law far beyond the declarations set out in the convention.
By bringing to bear social and economic considerations through such treaty obligations which, I emphasise again, have never been endorsed by our traditional democratic and accountable process, the European Court of Human Rights has created a body of law that is not based on any democratic mandate, and one that can frustrate and nullify that mandate. The Court's judgments form part of our law far beyond any reading of the convention rights. That legal framework circumvents what has been traditionally our constitutional process and, by detaching accountability for law from the consent of the governed, it undermines the central purpose of our legislative process.
§ Mr. David Kidney (Stafford)
I am not a member of the Joint Committee, but I am enjoying the debate enormously. I want to make one small point, and I hope that I will not detain hon. Members for too long.
For a long time, I have been convinced of the need for a human rights commission in the UK, so it is delightful to me that, at long last, a parliamentary Committee has produced a report that recommends the establishment of such a commission. I therefore disagree entirely with what the hon. Member for Aldridge-Brownhills (Mr. Shepherd) said, much though I admire his independence of thought and his speech. I shall make a case explaining why my view differs from his.
I thought that the Human Rights Act 1998 might be the stimulus for the establishment of a commission and, when it was debated, I asked Ministers whether a commission would be set up at that stage. I was disappointed that the 1998 Act did not involve any such thing. As we read in the Joint Committee report, the Government are not yet convinced, some five years later, that there should be such a commission. There is some convincing still to be done, and I hope that the debate will help to do that.
The Human Rights Act has brought modest successes in its wake. Every Bill produced since it came into force now carries a Minister's certificate stating that the Bill complies with the Act. That is a start, and the Joint Committee on Human Rights was created following the Act. Another positive gain, to which the hon. Member for Stone (Mr. Cash) referred in a sense, is the bringing home of the enforcement of our existing legal rights that protect our human rights in that our domestic courts can now pronounce on European convention issues when dealing with cases in the UK courts.
Some constituents now ask me at my advice surgery if their problems—typically with health treatment, education or dealing with the police—can be solved by referring to their human rights, if nothing else. Sadly, they are often disappointed. It is interesting to note that, in the report, the Joint Committee reviewed evidence of the public's awareness of their human rights since 1998. Unfortunately, they found that the awareness raised as a result of the Act has since ebbed, which is worrying.
The report acknowledges that much more needs to be done if we are to reverse the ebbing away of people's awareness and increase their understanding of what human rights mean. We must educate people, which brings me to the point made by the hon. Member for Aldridge-Brownhills when he said that I had omitted the electorate from my list of organisations interested in human rights. The reverse is true: the human rights commission would have the role of assisting and promoting education about human rights and where they fit into people's daily lives, schools, educational institutions and public bodies.
There is a valuable role to be played in raising awareness about human rights. This week has been a particularly good week for raising awareness, as anyone who has watched the television will know. It has been difficult to miss some programme or other about human rights. In the brief time in which I watched television—I assure hon. Members that I watch television only briefly—I saw a programme about the abuse of people's rights in residential homes for the elderly and several 154WH programmes, or rather the tail end of them, about abuses involving elderly people in our communities. I caught the last minute of the programme before the news today at 1 o'clock, which highlighted the abuse of family members, be it physical abuse or simple criminal abuse such as the theft of parents' funds.
§ Mr. Cash
I am bound to ask my neighbour and the Member who now represents a considerable number of my former constituents a simple question about the criminal matters to which he has just referred and other infringements of peoples' rights, a question I put to the hon. Member for Bristol, East (Jean Corston). What domestic law could not be made to remedy those problems?
§ Mr. Kidney
The hon. Gentleman has just helped me to move on to my next point, but I will answer him directly. We undoubtedly have a well developed legal system of tribunals and courts in this country to which people can turn for help. It could also be argued that no one is excluded, as we have a system of legal aid. If he reads some of the submissions made to the Joint Committee—I was not a member of the Committee, but I read the submissions to it—he will see that several organisations say that many people do not assert their legal rights through the courts for one reason or another. Age Concern is such an organisation that comes instantly to mind. It says that many elderly people do not make complaints at all, even though some of them suffer dreadful abuse. There is nothing wrong with the courts. Indeed, one of the roles of a human rights commission would be to help people to assert their rights through the courts. However, the courts alone are not enough. That is the message of the report.
As well as assisting people to take their arguments to the courts, the commission could help people to resolve disputes in alternative ways through mediation, conciliation and so on. That would be a valuable role. Before I took over from the hon. Member for Stone as the representative for the Stafford constituency, I was as a solicitor in private practice. Whenever a person took a case to a tribunal or to a court and won, it would be at an incredible cost. There would be the time spent in preparation, the anxiety about getting there and all the uncertainty—for example, if the win were financial, would it cover all the costs?
A typical example is an employment tribunal case. What use is the decision that a person was wrongly dismissed if the person has not had a job in the intervening 12 months and does not get his job back as a result of winning the case? Those are substantial matters that affect people's lives day in, day out, yet they are never remedied.
§ Mr. Cash
In the interests of developing the relationship between the hon. Gentleman and myself—we have shared more or less the same constituents—I shall refer to at least two such cases. One involved an elderly couple who were separated and, more recently, I had to refer a serious matter involving the death of a child to the General Medical Council. In both cases, it was quite clear that there was an abuse of rights, but they were resolved because I was able to use the facilities 155WH that were available. I am puzzled as to why we need a human rights commission to achieve these practical results.
§ Mr. Kidney
For every successful outcome there are probably dozens of cases in which that never happens. People do not know. Part of the role of a human rights commission is to assert that it is natural for people to stand up for their human rights and solve their difficulties, we hope, at an early stage and in an informal way in which nobody is upset.
I have set out the reasons why a human rights commission will help. What will it look like and how will we set it up? As the hon. Member for Aldridge-Brownhills said, a set of principles already applies around the world. Indeed, the report points out how the Government are not slow to comment on how other countries are performing against the Paris principles. There is nothing wrong with us deciding what we should do here with reference to them. The report goes on from those principles and sets out what the Joint Committee believes should be the powers and functions of a human rights commission. There is a full list on page 54.
I move on from that to talk about the relationship with equality bodies, which has become a hot issue, as my hon. Friend the Member for Bristol, East (Jean Corston) pointed out because of the Government's determination to develop our current rights commissions. We have three at the moment: the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. The Government are looking at adding three more and having commissions on age, religious beliefs and sexual orientation. With six rather than three, the question is whether there should be an overarching body or one body to replace all six. I believe that the rights commissions and the human rights commission go together. I should like to see one body. That is important for a number of reasons.
First, it would stop the proliferation of different bodies and the confusion about whether a problem should be taken to one or to another. In practice, many people have problems that cross the boundaries of the various organisations. A human rights commission is the answer for members of the public who need help or want to know where to turn. Of course, it must respect the sensitivities of the groups of people who wish to be helped and of the different organisations and commissions that already exist to help them. A single organisation will bring benefits in terms—I am sorry about the jargon—of there being a single gateway for the public to enter and of its ability to focus its assistance on the areas in which it is needed. It will also be able to provide extra assistance in a complex case, a case of high public interest or a case in which a lot of people are affected and a lot of input is needed to direct resources.
§ Mr. Shepherd
Nowhere has it been stated what a human rights commission means. Does the hon. Gentleman believe that it is a body of information, or is it a narrowly focused body that deals with amelioration? Does he accept that the commission should have access to the entire body of United Nations instruments, some 156WH of which might involve economic or social arrangements with which he might disagree as a legislator and the representative of the people of Stafford?
§ Mr. Kidney
I am not going to enumerate what I think human rights are, because there is a great discussion about that in the report and in the submissions that were made to it. If I understand the hon. Gentleman correctly, he is saying that there is a growing body of international conventions and treaties that impose or grant such rights, and that it is difficult for us all to know how many there are, where they are and what they say. He seemed to suggest that there is an elite group that knows the totality of the issue, while most of us do not. If our Parliament has ratified a treaty, I expect the rights that it embodies to apply in this country. If that happens, I am concerned if nothing changes. When he quoted the report of the United Nations Committee on the Rights of the Child that criticised some of our legislation and public bodies' practices, he quoted its second report on the position of the United Kingdom. The first report contained all the same criticisms, and the second report complained that our Parliament had taken no notice of the first one.
§ Mr. Shepherd
That report does not identify the legislative deficiencies of the United Kingdom. It makes general comments on the state of play. One can only weigh that up by asking what the legislative provisions are. By and large, we do not have a failure of governance in this country. One can exercise one's rights and they will be enforced by the courts. The problem is that the Joint Committee has no idea of the details of the international instruments. I tried to find out through the United Nations whether we are compatible with them and where the legal deficiencies are. It was unable to give an answer, as there is no mechanism for doing that. It would have had to work through the 100 or so instruments to find out.
§ Mr. Kidney
I do not agree that the second report of the United Nations Committee on the Rights of the Child relating to the United Kingdom does not specify the legislative areas in which we are deficient; it does. The many lobby groups for children's rights in this country have identified a programme of work that would need to be carried out by Parliament to put us right in terms of the convention rights. I differ from the hon. Gentleman in that I believe that the specialist assistance that parliamentarians would receive from a human rights commission would assist us in making the changes in this place to ensure that those rights were properly embedded in our law and properly available to our constituents.
If there were a single human rights commission, members of the public would not be confused about who was there to help them and there would be no problem with the delineation of duties. When the need arose, such as in a complex case or one with a high public interest, or if many cases were involved, adequate resources could be brought to bear. That is why I would like to see a human rights commission.
We should take more seriously the issue of human rights and age, but I ask people to bear in mind that it should include all ages and not just one group. Human rights start before birth and involve complex issues such 157WH as research into infertility treatment and surrogacy. The issue covers children in care—childhood cannot be given back to them afterwards—and those of working age who are discriminated against because of their age. In my constituency, that problem is particularly acute for those in their 50s who have lost one job but cannot find another, even at a time of low unemployment when employers are pressing for more workers. At the other end are the elderly—particularly those who rely on others for their daily care—and the abuses that they can suffer. A range of age issues needs our serious attention.
I conclude by saying what a pleasure it was to see the publication this week not of the sixth but of the ninth report of the Joint Committee on the need for a children's commissioner for England. That is relevant because the ninth report, which harks back to the sixth report, points out that a children's commissioner for England would probably be best placed in the human rights commission, a conclusion with which I wholeheartedly agree. Children's rights is one more issue on which the Government of the day have dragged their feet; children need a voice, a source of advocacy and help and, although the position is different in Wales, we have not yet risen to that challenge in England. It is time that we did so.
§ Fiona Mactaggart (Slough)
Like my hon. Friend the Member for Stafford (Mr. Kidney), I am not a member of the Joint Committee, but I am glad to be able to participate in the debate. I congratulate the Committee on a serious piece of work. I say that not only because it was well done, but because I want it to make a difference—and there is a chance that it will. It could make most difference on an issue that the Committee focused on early in the report: a culture of rights. We have already heard that what is meant by a culture of rights is not clear, so I thought that I would try to make it clearer and say why such a culture is important.
If we had a real culture of rights, rather than the bogus one that we often see, we could shift public opinion substantially, which would be a good thing. We could do that in two ways, but the report focuses on only one: shared rights and how rights can read from one group of people to another. The second involves clashes of rights and what should be done if two groups of people, or even two individuals, find a conflict between what they or the law perceive to be their human rights.
My experience 20 years ago as general secretary of the Joint Council for the Welfare of Immigrants turned me on to the issue of shared rights. I represented a group who were reviled in the community. Public opinion was against them, but I often found that connecting the sorts of discrimination that they faced was helpful. For example, at that time British women were prohibited under immigration law from living in the country of which their husbands were citizens. I found that by connecting that right with other people's rights to enjoy family life, some of the toleration of discrimination that had existed towards that group of people began to offend the wider community. Others could see how, if they were prevented from enjoying such a right, they would be deeply offended.
158WH More recently, I have been faced with Muslim constituents rightly arguing for more effective measures to protect them from religious discrimination. I have been able to shift their views on gay rights—an issue on which that group are not particularly tolerant—by illustrating that the rights mechanisms for which they are arguing are rights for which gay people too are arguing. That approach can build greater tolerance and better connections across communities.
The days when I worked with Joint Council for the Welfare of Immigrants were not long after the Smethwick by-election, when the Tory slogan was:If you want a nigger for a neighbour, vote Labour.I sometimes think that we have not learned as much as we should when I look at recent election leaflets about asylum seekers, but it is inconceivable that any mainstream party would now use phraseology such as that. That is not only because society has moved forward, but because we have changed public opinion through equality legislation and through mechanisms comparable to the mechanism for which the report argues. Changing public opinion is a really important job for a human rights commission.
The model for a human rights commission should not be based on rights enforcement. The organisation that we should look to is the Electoral Commission, which has done good work on, for example, changing election methodology and ways in which different political parties can open up their systems. That work has changed how the Government go about their business. However, the commission has not enforced changes in election law; it has, rightly, left that to Parliament. That is the sort of commission from which we can learn lessons.
The most important issue is human rights conflicting with one another. I will take a United Kingdom example. Regularly in Northern Ireland the human rights of the loyalist community to conduct traditional parades—a matter of freedom of expression—are cited. Equally, arguments are advanced for the human rights of Catholic communities through which the traditional parades go: those rights include the peaceful enjoyment of family life and freedom from intimidation. The rights of the two groups are in conflict, and during the marching season we see those conflicts managed in various ways on our televisions. Those conflicts are often not managed well. I am a fan of the Northern Ireland Human Rights Commission, but I think it has failed in that particular task. That is a great pity, but I accept that it is the most difficult part of its job to get right. The big difficulty in dealing with human rights in Britain is dealing with those moments when the human rights of one section of the community conflict with the human rights of other sections of the community.
The Committee has done a very good job in looking at how public institutions fail people's human rights. Some old people's homes do not guarantee rights. The human right that always works me up is the right of older people to family life. Homes often have impossible visiting arrangements for the families of older residents.
The job that we are failing to do is to consider what to do when rights conflict. We need a commission because that is not a job that can be dealt with properly by the courts. People have a right that is being abused and 159WH might be able to make a court case, but we do not have a mechanism to deal with the matter. The report deals with that to some extent.
My hon. Friend the Member for Bristol, East (Jean Corston) spoke about conflicts in communities. At times in my constituency violent street battles take place between young Sikh and Muslim youths. The problem has been very hard to resolve, but we have managed slowly to develop peacemakers within those communities to begin to resolve it. Some of the mediation proposals might help, but I am not talking only about mediation.
How do we help people to understand that rights are not a one-way street? There are moments when one's own human rights might conflict with those of others. If we created a society in which we properly understand that, we would have created a society in which we face fewer of those moments that I imagine every hon. Member here faces. I had one at my constituency advice surgery the other day: a mother said, "I have a human right for my child to go to that particular school". People believe that a culture of rights gives them the right to do what they would prefer to do, but of course it does not. It protects their rights from abuses and it creates a context in which some of the conflicts can be mediated.
That is why I think that the hon. Member for Aldridge-Brownhills (Mr. Shepherd) is concerned about content as opposed to process. I recognise his long-held and deep concerns about the processes, which he explained well. However, in my view, the Joint Committee's proposal is a serious way of dealing with his concerns about the context of our rights.
It seems to me probable that a human rights commission will be charged with the rights that are reflected in the European convention on human rights and in the Act that was the product of the "Bringing Rights Home" White Paper. It is proper that other international human rights instruments—which, as the hon. Gentleman rightly pointed out, introduce issues of economic and social rights—should influence it.
The reason why I cannot deliver to that mum the human right for her child to go to that school is that the school's capacity is not infinite. She failed in a perfectly proper process of appeal in which she was able to put her case on why her child should go to that particular school rather than another. Sometimes schools' appeals procedures could be more open, and we might properly examine the human rights issues involved in that. Many parents feel that it is a very secret procedure—that justice is not seen to be done—but it is a proper mechanism none the less.
We should create a context to help people to understand that rights quite properly conflict, that they are not a one-way street, and that there is a mechanism to examine ways to resolve moments of conflict. They should be properly debated and if they require legislation, that is the job of Parliament. Then, we will begin to create a culture of rights, which will include a much better respect for the rights of other groups and individuals in the community.
That is why we need a body like a human rights commission. I do not think that such clashes can be resolved within our adversarial judicial system. I am not a lawyer, but from my observations I do not think that 160WH there is a mechanism to do that. Beginning to do it can make a real difference. I noted how during preparation for the new state of South Africa, a massive human rights education process was undertaken, dealing with exactly such matters. In that country, people are acutely aware of the conflicts of rights. The process has been one of political education as well. It has engaged people even more with their democratic systems.
My response to the hon. Member for Aldridge-Brownhills is that although the creation of a human rights commission would not resolve all of his genuine and correct concerns about some of the mechanisms through which we engage in international treaties and take on obligations without proper scrutiny, it will give us a new mechanism to enable the people of this country to participate in debate and scrutiny and ensure that we properly represent their concerns about rights. As such, I commend the report and urge the Government to take it seriously and act urgently. Unless we adopt such a mechanism soon, we will not have a proper device for dealing with instances when rights conflict. Until we have that, we are not properly protecting the human rights of our citizens.
§ Mr. Shaun Woodward (St. Helens, South)
This is an important report that comes at a critical time for human rights in our society and throughout the west. I pay tribute to fellow Joint Committee members. We did not all agree all the time but we had an interesting journey in experiencing human rights throughout the United Kingdom and elsewhere in the world. I learnt a great deal and want to put on record my thanks to the Clerk and officials who serve the Joint Committee. They are a great credit to the House.
The events of 11 September held a mirror up to us all, not only in this country and the United States, but throughout the world. It forced us to see the consequences of advanced terrorism and prompted several responses. The paradox is that, while we are committed to creating a culture of freedom, democracy and human rights for others around the world, particularly at the moment in Iraq, human rights at home and in the United States are under what might be described as pressure.
We live in a time when we are exporting democracy and human rights, which serve us well and protect us. Homeland security exists in the United States to protect its citizens from the practices of fundamental terrorist regimes but the current situation involves sacrifices of some of our liberties to protect our rights to life. In discussing the importance of creating a human rights commission, it is relevant to see it in a wider context. That context is undoubtedly putting our own human rights under pressure.
It is essential to recognise how much the Government have done in the past six years. There have been huge advances in willing a stronger human rights culture, and it would be foolish not to recognise that from the start. As hon. Members may remember, I was in a different political party at the beginning of the 1997 Parliament. Along with voting against the minimum wage, that party was not content with the passage of the Human Rights Act 1998. The Conservatives probably do not now want to repeal the minimum wage legislation or the 161WH Human Rights Act, which goes to show how much has been achieved in six years through a courageous decision by the Labour Government when they came to power.
I regret that I did not recognise the merits of the Human Rights Act, and I must say again that life is a learning experience. What we learnt on the Joint Committee taught me just what a difference the Human Rights Act has made. The problem is what remains to be done. There is an important distinction between what can be done through legislation and establishing a culture. Legislation does not create a culture; it gives a culture parameters within which it can flourish and be nurtured. The purpose of a human rights commission, to judge by the evidence we heard, is to be one more tool in protecting human rights and ensuring that human rights issues are raised not only in the courts but at other levels. It is strange to reflect that, when we are telling the rest of the world that it needs to embrace human rights, we have not had the sense—I think that that is the appropriate word—to recognise that it would be good to ensure that our own garden was in order before we started to look at those of others.
Some members of the Joint Committee did not agree that we should have a human rights commission and that is an understandable point of difference. Although I do not share that view, I recognise that it is held as a matter of conviction and principle. Others object to the proposal as they might have done to a human rights commission in Northern Ireland a decade ago, but that Commission has been an important part of the peace process and it continues to play an important part in reconciling minority groups within the whole culture of Northern Ireland. Most people in Northern Ireland, from both sides of the historical divide, say that the work of that commission has been substantively important and not significant only at the margins.
Those who object to a human rights commission might have said the same thing in relation to Scotland a decade ago. I pay tribute to the Government for establishing a Scottish Parliament, one of the consequences of the constitutional changes that they have made in the past six years. It is significant that the Scottish Parliament has responded to the Scottish people by saying, "Those people want a commission and we think it should happen." A Human Rights Commission has been established in Northern Ireland and commissions are proposed for Scotland and other parts of the country. Should not the people of England, who have the same needs, enjoy the same rights?
I believe the Government's commitment, in respect of the Human Rights Act, to creating a culture of human rights, but in what way are the people of England different from those of Scotland or Northern Ireland? It surely cannot be argued that Northern Ireland is a separate case because of its troubles historically. The conclusion would be that, if in the near or long-term future the peace process continued to work well, the Assembly should wind up the Northern Ireland Human Rights Commission. I do not think that the Government, or the Northern Ireland Assembly would advance such an argument.
162WH Where does that leave people in this country? Arguably, they are in a considerably weaker position. My hon. Friend the Member for Slough (Fiona Mactaggart) spoke about some minority groups that, rightly, feel heavily discriminated against. The Government can take huge credit for their democratic principles in making constitutional changes, but the creation of Parliaments and Assemblies elsewhere is not enough. Those are the big changes, but they need to be followed through with significant changes to the infrastructure.
My hon. Friend referred to the ninth report of the Joint Committee published this week on the case for a children's commissioner. I understand that the Minister may not wish to comment on that matter this afternoon—it may be on a small scale in comparison with creating a Parliament in Scotland or a Welsh Assembly—but for the several million children of this country the absence of a children's commissioner is significant. It is interesting, and to the credit of the Government in creating the new constitutional changes, that the Welsh Assembly has created, enshrined in law and taken to its heart the Children's Commissioner for Wales.
Where devolution has been carried through, the devolved institutions want to create bodies to enshrine principles in law and to create a culture of human rights or children's rights. However, having had the necessary huge will, principle and commitment to create the big institutions, we are nervous about following through.
In relation to the children's commissioner, I have some experience of the matter because I was a founding trustee of ChildLine and because of my long association with it. It cannot be argued that we do not need a children's commissioner in England. Opposition Members worry about going too far with rights. As Esther Rantzen, the chairperson of ChildLine, said, people do get frightened and newspapers do stir up trouble when we talk about children's rights, so let us talk about children's needs. Children have significant needs, as I have seen at ChildLine. We have had more than 1 million kids counselled for sexual, emotional and physical abuse and bullying in schools. Those issues need to be raised, and not only in the courts. It is often far too late when matters reach court. In the most tragic cases, the children are dead. Those issues need to be raised much earlier.
An umbrella organisation is required that can take those issues up on behalf of children. That is the role that commissions can play, whether for children or for human rights. It is critical that commissions be independent of Government. This Government and the Labour party have a proud tradition in the fields of social justice, fairness and equality, but some people look at the Government and are slightly nervous about the fact that we have become a bit tentative on the equality front. That is not a criticism. Sometimes, there can be good arguments for being tentative but, sometimes, when the case is made, there is a need to go further and to show commitment.
§ Mr. Cash
I have listened carefully to the hon. Gentleman but I am still puzzled, and not only on the point that I have already made about why we would not be able to provide whatever legislation was required to address these myriad problems. I am also deeply 163WH concerned about the range, extent and dimensions of human rights. Just now, the hon. Gentleman distinguished between a human rights commission and a children's commissioner but, if one looks at the Human Rights Act, one sees that there is almost no area of life that could not create yet another commission. Where do we draw the line?
§ Mr. Woodward
The hon. Gentleman makes an important point. That is obviously a criticism that we have heard. I believe that, if the Government intend to bring together the three existing equality commissions, which include the Disability Rights Commission and the Equal Opportunities Commission, the rightful place for a human rights commission is within an equalities commission. We in the Joint Committee found that there was wide scope for debate on the exact relationship between the two within one institution. Indeed, we only just, on balance, took a view that it was best to bring all the commissions together. My personal view, to answer the hon. Gentleman's question, is that it is very difficult to distinguish between an issue to do with equality and an issue to do with human rights. After all, the right to be treated fairly and equally—not to have special privileges or special treatment—seems a fundamental right that we could all expect to have.
That brings me back to the importance of the institution's independence. I do not want to rake over the coals, and I do not raise the issue for the purpose of political posturing, but let us take discrimination and the issue that has caused such controversy for the Conservative party and the Government—the repeal of section 28. If we believe that people have a right to be treated fairly, we have a problem supporting something that makes that tougher for people who are gay. In an advanced democratic western culture, we should consider the desire to remove discrimination a good cause. It is sometimes troubling when political parties want to get behind discrimination. Some did so for what they regarded as principled motives—I disagree with their principles—but some were not quite so principled and it was clearly gross political expediency that motivated them.
None the less, what we needed over section 28 was an independent body that said, rightly, to either a Conservative or Labour Government, "This is discrimination. It is wrong and it should be removed. People are suffering, kids at school are being bullied, teachers, who might themselves be gay, are being bullied and young people are taking their lives because of it." This is not a political point. For those of us who thought that it was right to repeal section 28 some time ago, it is not even a human rights point. When one receives a letter from the parent of a teenager who has killed himself, it is not a matter of human rights, it is a question of life and death.
It is easy to trivialise such issues, to say that it concerns a minority group and that only a few people are affected. However, once one has read a letter from a parent whose child died because he or she was gay and was discriminated against, even one case is worth fighting for.
The hon. Member for Stone (Mr. Cash) asks where we should draw the line. I am not going to draw a line. The point of creating a human rights commission is that it would be able to advise us on where the lines are and, 164WH in many cases, where they need to come down. We need to recognise the value of all our institutions. We might wish to improve the work of the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission; presumably that is the Government's purpose in considering merging them into one equalities commission. However, I do not think that anybody in his right mind would say that the work of the CRE, DRC or EOC is not important or will not continue to be important. If we establish a human rights commission, people will say exactly the same.
Of course, legislation was needed to create those institutions, and it will be needed to create a human rights commission. Such institutions take on the business of nurturing a culture—they make it wider and deeper—and of advancing issues of social justice. A human rights commission would do much in that regard.
In our travels, we went to Australia, where we had a profound experience with the human rights commission. The Labour party there looks proudly on the achievement of the past Labour Government who were responsible for its creation in the way that, perhaps, our Government look at previous Labour Governments and say that one of the great achievements of the Attlee Administration was the establishment of the national health service. It is interesting to note that one of the first things that the not now so new Liberal Prime Minister wanted to do was to get rid of that commission. However, he found that he could not—the organisation was valued across Australia, not just by Labour politicians but by many in the Liberal party, too. It was supported with the warmth of feeling that people in this country have about the NHS. They thought that it was absolutely essential.
Some hon. Members may be familiar with the film "Rabbit Proof Fence", which looks at the way in which babies were taken away from Aborigine families from the early to the middle part of the previous century in order for some quasi-eugenics project to be practised. It is very moving and deeply disturbing. How did the subject come to light? Was it because political parties decided that it was a good campaigning issue? No. It was because the Human Rights and Equal Opportunity Commission in Australia took it up.
I return to the question of where I would draw the line. I would not draw the line—any more than a politician in Australia would be foolish enough to draw the line. The line should be drawn by those who feel that their human rights, their sense of social justice and their sense of being able to live in a society that is fair, are in some way being abused. They are the people who must draw the line and a human rights commission would help us to consider that.
It was interesting that Mr. Howard's Government did not get rid of the Human Rights and Equal Opportunity Commission and I understand why the Australian Labour movement is so proud of its past. The hon. Member for Aldridge-Brownhills (Mr. Shepherd) spoke about our laws and our processes being a mirror of our culture. He is right, as he is on so many matters, although we disagree on this one. The absence of legislation to create a human rights commission and the processes that would be carried out by one, mirrors what we lack, not what we have. It therefore feels uncomfortable that, at a time when we are telling others 165WH to establish democracies and to protect human rights, we ourselves are nervous about establishing a human rights commission.
We have a wonderful young people's and children's unit and huge credit must go to the Ministers and staff who work on it and do a tremendous job. However, any pretence that that unit could do the same as an independent children's commissioner is stuff for the birds. People can talk to the Welsh commissioner about that, or to every charity that works for children if they do not believe me.
The work that the Joint Committee has done and the evidence that it took from people is interesting. My hon. Friend the Member for Slough mentioned discrimination. I suppose that some people in this country do not want to recognise the rights of minority groups. Some people take a similar view on prisoners—they think that the best thing to do would be to lock them up and throw away the key. I do not share that view but there are some people—we have all met them—who do.
It is regrettable that some take a similar, rather despicable view about some asylum seekers or about those who seek to become economic migrants to this country. I welcome such migrants to this country and I am sure that other hon. Members do, too. However, we all know of people who have an unfortunate view of people with a particular skin colour or those from particular countries, because they think that such people might be misfits.
There are also people who take an unpleasant view of people who happen to be gay, bisexual or transsexual. I encountered such people when we were repealing section 28. When I changed political parties, my brother—now sister—Lesley ended up on the front cover of The Sun and on other newspapers because he was a "freak". That was the term that was used about Lesley, who did not choose to be born inside the wrong body. He had the courage in his early 40s to change his body and to become a woman. For some reason, however, our culture decided to paste this person, who had gone through the most terrible, agonising childhood and early adulthood, on the front page of a newspaper and call her a freak. Actually, that happened because she happens to be my sister and I changed political parties, which apparently justifies such treatment.
I do not like to refer to people's personal lives and I recognise that, since I have brought my sister in, people may like to bring all that up again. Why did I do it? I did it, first, because I wanted to put on record the courage and bravery with which she withstood media intrusion and, secondly, because I wanted to ask what the hell was going on. We think of ourselves as an advanced, civilised society, yet we pick an individual living in complete obscurity in a small rented flat in Cleveland and paste them on front pages of a few tabloids because they are connected with me, a politician. I think that that is a gross intrusion. A human rights commission would look at such cases. Although the press in this country is terrific and we need a free press—I do not argue against that—we sometimes get things wrong. I get things wrong and I am sure that even you, Mr. Deputy 166WH Speaker, occasionally get things wrong. However, there are moments when it is good to have an institution that pulls us up.
There are issues that such a commission would look into. The commission would be an important part of forward movement on the constitutional arrangements that the Government have considered, much to their credit. If we look back over the past 50 or 60 years, we see the recognition that one cannot change things just by laws; one must change things by culture, too.
In 1945, there was a seminal moment in the history of human rights around the western world and elsewhere. Getting to the point at which we are today has been a struggle. Both in creating a modern culture of human rights in which we decided to learn a great deal from the atrocities of Nazism and world war two, and in subscribing to the idea of a new legal order in which human rights might be universal and supreme over and above the respective national legal systems, we have made a real advance as a civilisation. It is no longer a defence to say, "I was only following orders", as the Nazis did, because we say that international norms within human rights are greater than the national legal issues relating to sovereignty in particular countries. That was a great moment. There are consequences for sovereignty in advancing a culture of human rights, which is a good thing.
In an advanced democracy, we need to recognise that some sovereignty may need to be subsumed to those international norms. The courts have been a guardian in such instances and are increasingly so. It is interesting that they are increasingly attacked for doing so. A human rights commission would pick up some of those issues but not all those tests and challenges need to take place in the courts and the judiciary. The human rights commission would be an element in advancing the culture, not only the legal framework.
In conclusion, I see little for us to fear in the rights of individuals being enhanced. The institution may be troublesome to the Government but it is a price that the Government and all of us in this great country should be prepared to pay.
§ Mr. Deputy Speaker (Sir Nicholas Winterton)
It would be appropriate to recognise the attendance of the hon. and learned Member for Redcar (Vera Baird), who is a member of the Joint Committee but cannot speak because of a throat infection. I hope that the Chamber does not mind me mentioning that. She is an expert in this area.
§ Mr. David Heath (Somerton and Frome)
That was an entirely appropriate comment Mr. Deputy Speaker. We have had an excellent debate on this important subject, opened by the hon. Member for Bristol, East (Jean Corston) and contributed to with powerful speeches on both sides of the Chamber. I noticed a pre-emptive contribution from the Minister in the press this morning, which we should perhaps read into the account so that we know the position from which she starts before having been persuaded by the strength of the contributions to the debate.
I pay tribute to the Joint Committee, which has been doing tremendous work on behalf of the House. Hon. Members who sat with me on the Standing Committee 167WH that considered the Criminal Justice Bill know that the Committee chaired by the hon. Member for Bristol, East was prayed in aid many times during the course of our proceedings, sometimes effectively and sometimes less effectively. Nevertheless, its contribution to the debate was considerable and important, particularly in respect of home affairs and also in the context of the present Administration.
A great deal of nonsense has been spoken about the Human Rights Act 1998 over the past few years. I would like to place on the record my belief that if the first Labour Administration are remembered for anything, it will be for putting that Act on the statute book. It was an extremely important piece of legislation. It has not produced the dire consequences that some people were happy to suggest. Those who like to think that the European convention on human rights was some sort of invention or bizarre aberration on the part of the European Commission on a dull Wednesday afternoon in Brussels are clearly wrong.
As we know, the convention has lasted for 50 years. It was a creature not of the present European Union, which of course was not in existence that long ago, but of the post-war settlement where the British Government's contribution was integral to its construction. The fact that we have subscribed to that convention for so long, yet until 1998 British citizens could take action only through a court remotely situated in Strasbourg, was an absurdity that did not take the provisions of the convention seriously.
When I first came to the House, I was a member of the Select Committee on Foreign Affairs. One of our first reports in the previous Parliament was on human rights in the context of foreign affairs, and I was conscious that we were quick to adjudicate on human rights issues elsewhere in the world but much slower to examine the application of human rights in our country.
I am a great believer in the Human Rights Act. Its provisions are now justiciable in British courts, which is as it should be. That is not to decry the arguments adduced by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) as regards other treaty obligations. He is right that they do, indeed, represent obligations placed on the British Government, that they were signed under the royal prerogative and that they have not been through Parliament. He and I have debated the issue previously, and I entirely agree that the royal prerogative is inappropriate. The issue should be dealt with by a sovereign Parliament. Irrespective of changes in primary legislation, Parliament should agree and ratify that which is agreed by the Executive. That is the proper way to do things.
I disagree with the hon. Gentleman only in that I reach an entirely different conclusion on the basis of his argument. For me, the logical conclusion is not that there is no role for a human rights commission but that there is a need to incorporate other human rights treaty obligations into British law so that they become justiciable in the English and Scottish courts. The commission could have an educational role, promoting understanding of the implications of Parliament's decisions on such issues.
§ Mr. Shepherd
Part of the burden of my argument was that it is difficult to form a judgment in the absence of an 168WH understanding of what the treaties do and what we have signed up to. That is an essential part of the issue. Of course, every treaty entered into by royal prerogative should come before the House of Commons and receive line-by-line scrutiny so that it at least has democratic endorsement. However, without knowing what all these treaties amount to, my conclusion as regards a human rights commission is that we should be as diffident as the former New Zealand Prime Minister, Sir Geoffrey Palmer, who preached caution, and the Attorney-General of India, who expressed caution in the early days of the implementation of the Human Rights Act. It is not prejudice that motivates me, but a spirit of inquiry and the need to know what we are talking about.
§ Mr. Heath
I am grateful to the hon. Gentleman, but his spirit of inquiry could only be assisted by a commission in the form that the Committee proposes. However, we may have to differ on that.
There is some consciousness of the Human Rights Act and its consequences. As the hon. Members for Stafford (Mr. Kidney) and for Slough (Fiona Mactaggart) suggested, people who are happy to cite a supposed right under the Act regularly turn up at all our surgeries. They do so in support of whatever contention they may be putting to us, be it their inalienable right to stop their neighbour having a bonfire or to book a five-a-side football pitch at the local sports centre whenever they want. Sadly, they are often wrong in asserting that they have such rights. Nevertheless, something has clearly happened to the national consciousness to cause people to believe that there is something to which they can have recourse if they feel that the state is acting inappropriately in its dealings with them.
§ Mr. Cash
The hon. Gentleman and I have a rather curious relationship, in that we quite often agree despite our political differences. That said, he may have noticed an article by Joshua Rozenberg in The Daily Telegraph today—although perhaps he does not read that newspaper. The article examines the role of the European Court of Human Rights at Strasbourg, and compares it with the European Court of Justice in Luxembourg. That brings me back to the point made not only by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) but by the hon. Member for Somerton and Frome (Mr. Heath) about the way in which the activity of the Court will expand those treaty obligations. I would like an answer to a question about the legal personality of the European Union, on the basis that—
§ Mr. Deputy Speaker
Order. I suggest that the hon. Gentleman brings his intervention fairly swiftly to a conclusion.
§ Mr. Cash
The hon. Member for Somerton and Frome probably knows what I am about to say, because I have said it already. How will the legal personality, the European Court, and the application in the European Court of Justice of the general principles of the Convention on the Future of Europe enable us to make sense of the arrangements?
§ Mr. Heath
I am grateful for the hon. Gentlemen's intervention, although I believe that it was longer than 169WH the first part of my speech. He and I both know that we have not yet had confirmation of what the European constitution will contain, and so we are talking hypothetically. It is therefore perhaps idle speculation, given the existing strong disagreements between member states about what should be part of the European constitution, to try to work out what its justiciability is.
I will, however, restate the point that the more we incorporate into British law that which is determined by treaty, the more we will have a framework of English or Scottish law as a bulwark against any amendments external to that enactment within the House of Commons or the Scottish Parliament. That seems to be an appropriate way of dealing with the matter.
There is a certain consciousness of the Human Rights Act 1998, and it is more often used for rather fanciful defences than for its true purpose. I believe that our courts have been good at interpreting what the human rights obligations mean. They have not been afraid to make it clear when they disagree with Ministers in their interpretation. However, I believe us to be deficient in encouraging the entrenchment and the reinvigoration of human rights throughout our society and public life. I would like to see that occurring as a natural concomitant of the passage of the Act, and the Committee chaired by the hon. Member for Bristol, East draws our attention to that point in its report. We should concentrate on that area and on the key role that the human rights commission would play.
As has been said, there are other factors to be taken into account. One key factor is the Government's commitment to establishing an equalities commission, encompassing the roles of the existing commissions. I welcome that and believe it to be a sensible move, because it will establish a stronger and more relevant body. However, human rights considerations must underpin the work of that equalities commission, irrespective of whether it should incorporate the role of a human rights commission. The equalities commission should have an expanded role that enables it actively to take forward human rights considerations in pursuit of its equality objectives.
I suggest to the hon. Member for Bristol, East that she might look favourably and carefully at the debates in another place on the Equality Bill in the name of my hon. and noble Friend Lord Lester of Herne Hill. A natural concomitant of establishing an equalities commission would be to consolidate legislation so that we had a firm body of statute on which the commission could work. That process is to be hugely recommended, and although I appreciate that adding yet more Bills from the Home Office or the Lord Chancellor's Department into a parliamentary programme may test even the most astute business manager, I nevertheless believe that it would be well worth considering.
That leaves us having to decide whether a human rights commission should be self-standing or have a federal structure. It is extraordinary that we are again being led by the other nations of the United Kingdom. In that respect, as in many others, England and Wales find themselves lagging behind. I do not know whether that denotes indolence by our Parliament or our Government, or whether it suggests an arrogance that 170WH assumes that everything in England will manage itself. The hon. Member for Aldridge-Brownhills is right that we have a proud history in our defence of liberties, but I wonder whether we are complacent about it. Do we not see the gross inequalities that constantly develop in this country, and the abuses and discrimination that are there for all to see, which we should properly address? I suspect that the situation is a little of all those things, which is why the report is so valuable.
I agree with the Committee that the form of a commission should follow its function. The function has to be determined first, and it must give the commission the freedom to act not only on behalf of individuals in response to complaints but in its own right, so that if it sees an abuse it can take matters forward. It must have the freedom to initiate in matters of education and training, which is another important role, and it should be able to commission research and studies. It must also have the freedom to advise whom it will on its recommendations. I would like to see it have a role as amicus curiae, being directly involved in the legal system.
A commission could usefully give courts expert advice on its interpretation of statute or of our human rights legislation. A commission should also have the freedom to challenge what the House of Commons does, what the courts may do and what public bodies may do in their implementation of human rights legislation. Again, I agree with the Committee; I do not seek a body that is principally adversarial or litigious—that should not be its role. However, it should have the right to challenge; it should be able to produce a report that says, "Whoever you are, be ye never so high, you are wrong in the way that you are carrying out that function."
Although I understand the Committee's concern not to create a rival body for legislative scrutiny, I would extend its capacity at least to being able to challenge a Minister's signing off legislation as being in compliance with human rights legislation. Indeed, that should apply especially to subsequent changes to legislation, which often do not receive the same sort of certification, but which ought to because we often rewrite Bills entirely in Committee or on Report.
As many hon. Members said, a commission must be independent of Government and free of outside interference. Its structure must therefore reflect that. I agree with the Committee that it should be a statutory body rather than a non-departmental body in type, and that it should be more like the National Audit Office than the normal sort of quango that advises the Government elsewhere.
The hon. Member for Slough made an important point about conflicts of rights. I note that the recommendation is that the commission should not have an adjudicating role. However, to use the phrase of the moment, in developing road maps towards reconciling competing rights, the commission can act not as a final arbiter but as a means of encouraging the thinking that would enable a final arbitration, either in the form of revised statutes or Executive action, to be put into place. That is an important role.
§ Mr. Shepherd
I appreciate that we are under pressure of time. The problem is that the ultimate adjudicator is the European Court of Human Rights. When the hon. Gentleman says that we can change the statute in these conflicts of rights, as adumbrated by the instruments, they can be adjudicated upon by the European Court in Strasbourg.
§ Mr. Heath
Courts can always adjudicate. That is the case for any statute that we care to make here. I do not think that that relinquishes either the desirability or the validity of trying to find ways of reconciling conflicting rights without recourse to the ultimate court of decision in this matter, which he rightly points out is in Strasbourg. That is a valuable function.
In conclusion, is the function that we envisage for a human rights commission of value and is it necessary? I believe that it is both valuable and necessary if we are to see the desired change in culture. Are there other ways of achieving that? I am not clear that there are. I am not clear that any amount of further legislation changes basic understanding and the culture within which we determine these things as a society. We need an adjunct to legislation that goes beyond that to illuminate, advise and take forward the principles that are enshrined in legislation. How will such a commission relate to Northern Ireland and Scotland? It is not beyond the wit of man to develop acceptable working relationships that do not undermine arrangements that are already working in Northern Ireland and will soon be working in Scotland. I am pleased to see that my former hon. Friend is back in the Scottish Executive as the Minister for Justice. With him driving things forward, we will no doubt see a swift resolution in Scotland.
The last question is whether the human rights commission can be part of the equalities commission. On that, I am agnostic. I can see merit in having a single commission. I can understand the arguments of those who say that the basic equalities principles of the equalities commission might be distorted, and that it would work better as a closely related but separate body. Whatever happens, the work of the two commissions would have to be co-ordinated; in addition the equality commission would have to have a human rights relevance. I do not want duplication; I want fortification in the actions that are taken. I should be grateful if the Minister would give us her thoughts on the subject. I should be grateful also if she could give us some thoughts on the timetable for the equalities commission. Will the Minister tell us whether she has given any serious consideration to the consolidation of equality of legislation in the Equality Bill? Will she also tell us whether she sympathises with the Committee's able proposal for a human rights commission? I suspect that she does, although the decision rests with the Government.
§ Mr. Deputy Speaker
Before I call the spokesman for the Opposition, I remind the House that there will be a Division in the main Chamber at about 5.5 pm. There may be two Divisions. If so, I intend to allow 15 minutes for the first Division, but if the Divisions run into each other, I shall allow only 10 minutes for the second Division, unless the Government and Opposition spokesmen conclude the debate beforehand, which I doubt.
§ Mr. William Cash (Stone)
I hear what you say, Mr. Deputy Speaker.
Some important points have been made in an important debate about matters that go beyond the question of human rights. On the Government's website about the human rights commission, I note that one of the most frequently asked questions is:Why is the Government not setting up a UK Human Rights Commission?That was on the website this afternoon, 10 minutes before I came into Westminster Hall. The answer is:At present the Government is not convinced that it is necessary to create a UK Human Rights Commission. The Government is not ruling out doing so in future. Some detailed issues would need to be resolved first, such as the functions and structure of a Human Rights Commission and its relationship to other bodies working in the field of human rights.The next question is:But the Government is establishing a Human Rights Commission in Northern Ireland?The answer is:This is one of the outcomes of the peace process and is justified in the special circumstances of Northern Ireland.I do not know to what extent that remains a matter of record, but I copied it from the website 10 minutes before we came into the Chamber. No doubt, we shall hear from the Minister what decision, if any, the Government have decided to take.
I have heard many interesting arguments this afternoon about preventing abuses. When I try to boil them down, however, the net result is that, like motherhood and apple pie, we are all in favour. However, when I ask questions about enforcement, who will legislate and the extent to which the law could be overridden by international treaties introduced through the EU's legal personality and applied by the European Court of Justice—under the current proposals the general principles of the European convention on human rights will have to be applied through the European Court of Justice, which I do not doubt will happen as there is a serious problem of reconciliation between Strasbourg and Luxembourg—other substantial questions arise about the dimension of the subject matter within the framework of the convention, not to mention all the other international treaties, to which my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) referred.
I entirely accept that there are problems of racial tension and conflict. Those who know a lot about me will know that I am greatly concerned about ensuring that people are not unfairly discriminated against. I must also say that things happened in Zimbabwe during the Iraq war that left an extremely unpleasant taste in the mouth, as did the Government's comparative lack of obvious concern to do anything about them. I feel strongly that, when we talk about human rights, which are generated from within the frameworkof international-EU law, we must focus on the need for the United Kingdom to improve its performance, and improve people's means of redress. That continuous process has been part of our democratic process since we became a democracy in the mid-19th century.
The suffragette movement emerged from protests and campaigns. I am all for protests, campaigns, and freedom of speech. I have indulged in much of that 173WH myself. However, the question of whether a human rights commission would contribute to the process of improving the rights of people in a practical sense—compared to an educational sense—gives rise to concern.
I do not disagree with the necessity to remedy abuse or to improve the quality of redress. However, I am sceptical about the extent to which those matters would be improved by a human rights commission without powers of enforcement. One is left with an almost indefinite range of matters that could be considered, making it very difficult to draw a line, as the hon. Member for St. Helens, South (Mr. Woodward) admitted. He would leave it to the human rights commission to draw the line. That could result in a substantial industry in its own right. As I am a solicitor, the Law Society has sent me a parliamentary brief on this subject, in which it entirely endorses the concept of a human rights commission. I understand that view, but I have reservations about the nature of the proposals in the report because I am not convinced that they will provide the solutions to the examples that have been given in the debate.
Over and again, during interventions, I have asked why we need to have a panoply of legislation and a human rights commission to deal with something that we could legislate for through our parliamentary process. I would like to have an answer to that question. I cannot understand why—with all the legislation that we have—it has not been possible to deal with the problems that are cited in the report.
§ Jean Corston
With legislation, if people are seeking to assert their rights, they have to go through the judicial process. A victim must be identified; a victim cannot always be found; or a victim may not wish to be identified. Would it not be better to spread the culture of human rights, so that litigation becomes unnecessary?
§ Mr. Cash
I have great difficulty with the opaqueness of that argument. The purpose of the legislation is to provide a remedy for a victim. That person may wish to remain anonymous, but want to translate their concern into a generalised social engineering process in which the human rights commission takes up the issue and puts it right by examining it and disseminating the outcome of its deliberations. However, I do not see why that should not be done by our Parliament. That is why we are here. I have serious doubt that there is any added value in a commission. I am not trying to be unduly negative. It may sound as if I am being extremely sceptical—which I am—but I just do not see any added value, except for the applicability of universal rights and laws, which is a philosophical or jurisprudential question. I do not see why we should not be expected to find remedies within our own legislative system, as we have done for centuries.
§ Fiona Mactaggart
The hon. Gentleman asked for an example of added value, so I can perhaps offer him one that I found out about today in a conversation with a colleague in the Tea Room at lunchtime. She described a situation in her constituency in which two young women 174WH who had come to Britain to be married were effectively kidnapped by the family of the husbands. They were kept in a cellar, not properly fed and used as skivvies.
My colleague has tried to persuade her local police force to mount a prosecution against the family because laws are being breached. However, every time that she has attempted to do that, the police have failed to prosecute, either because of pressure from social services or concerns from the families. There has not been a mechanism to deliver justice to the victims in that and similar cases. Something such as a human rights commission might be able to examine such cases and produce a better system of justice.
§ Mr. Deputy Speaker
Order. I should say with a touch of humour that the hon. Gentleman may like lengthy interventions, but traditionally the Chair does not.
§ Mr. Cash
I understand that perfectly well, Mr. Deputy Speaker.
The hon. Lady refers to the delivery of justice, and I agree that justice should be delivered in the situation that she described, which is why I welcome the manner in which she expressed herself. However, we must recognise that a commission could not do what she wants. It could give such a case publicity, but so can the press or a Member of Parliament. Indeed, you have just done that—you can raise that case with a Minister.
§ Mr. Cash
I am sorry—the hon. Lady can do that. However, a commission could not achieve the justice to which she refers. That point must be made.
The other important point is about victims, which I mentioned earlier in an intervention. The word "victim" is used in the Human Rights Act 1998, because it follows from the European convention on human rights. However, as I said earlier, part of the problem is that legislation does not allow for class actions. It occurred to me that one way of dealing with the problems would have been to include provision for class actions in the proposals. The hon. Member for Bristol, East (Jean Corston) has not yet said, but she may be able to tell us why the report does not address the limitation in the scope for class actions.
There is also the question of the extent to which enforcement should be part of a process to make the human rights commission fully effective. There are a number of significant and unresolved questions that ought to have been addressed in the report. The Minister may have further thoughts on that subject.
I read with interest a useful parliamentary briefing from the Disability Rights Commission, which has not been referred to so far. It said that it is in favour of the proposals for a human rights commission. However, the Disability Rights Commission says at the end of its report—possibly because it is not entirely convinced that what it would like to happen would actually happen—that some of the problems that it faces could 175WH be dealt with by regulations that would be made under our legislative procedures. I would have thought that, if that were the case, that would deal with the practical problems that the Disability Rights Commission describes. The hon. Member for Bristol, East properly referred to a number of significant examples in which disabled people have been abused. If there is the power to make the adjustments under the disability regulations, I sincerely hope that those matters will be taken up and remedied. That is another example of the point that I am making.
I hope that I am not over-emphasising my point, which is that we should be practical and not just resort to what would effectively be a more generalised exercise in education and information. Yet another Government agency would be built up, or at any rate an agency that, even if it were independent from the Government, would effectively mean that there was almost no point at which one could decide where the lines would be drawn in the vast arena of human rights. Almost everybody could say that they had a right to be heard and to have their particular case, grievance or cause for redress examined by the human rights commission. I see very practical problems.
I do not wish to be entirely negative, because there are serious abuses which need to be resolved and for which the legislation at the moment appears to be inadequate. We have to address that, but I suggest that we do so as a Parliament and do not hand the problem to some agency or rely on international treaties—to which my hon. Friend the Member for Aldridge-Brownhills referred—or the European Union, or even the European convention on human rights.
An important aspect has not been mentioned. Lord Hoffman made it clear in the case of Simms and O'Brien a couple of years ago that we are able to legislate inconsistently—provided that we do so expressly and unambiguously—with any legislation that falls within the remit of the Human Rights Act 1998. On that principle, in theory, we would be able to repeal the whole Act. Other similar judgments have followed. The 1998 Act is not entrenched in the way that some people might have thought. That is worth bearing in mind. If it is not entrenched, and the human rights commission is to be set up with a series of statutory functions—that is the object of the exercise—one needs to take that judgment into account. A human rights commission set up in response to the report would be given functions that would be subject to subsequent enactment by this Parliament, unless—and this is the big "unless"—the legislation itself were to be subsumed by proposals under the European Convention. It would then be the European Court of Justice that would decide whether we would be in a position to make the changes that we might like. There are some important issues lying at the heart of this matter.
§ 5.5 pm
§ Sitting suspended for Divisions in the House.5.30 pm
§ On resuming—
§ Mr. Cash
I would like to move on to the problem that arises between the creation of a human rights 176WH commission and the understandable desire to produce a body that is capable of monitoring the Government in relation to human rights. Despite being in opposition and not agreeing with what the Government say, my concern is about the extent to which such a commission—funded publicly and on a substantial scale, given the range of functions that would be essential to the carrying out of its powers—would be in conflict with the Government.
In its report, the Joint Committee says that a commission would be a great help to Parliament and to the courts. I fear that it might also form a kind of trade union resistance to changes in the law that would move against human rights legislation. I refer to a couple of recent examples, to the Home Secretary's reservations about the direction in which the whole industry is going, to the role of judges and judicial activism and the implementation of European legislation and all that goes with that. I do not need to go into it in detail; it is all on the record.
Practical problems arise, and the Government have to be able to make decisions. In fairness to them, I suspect that they have had to take a deep breath before the Home Secretary has said some of the things that he has said. The Prime Minister has also had to say things in respect of issues that would come within the remit of a human rights commission. I can see the potential for serious conflict in, for example, matters relating to asylum.
In my dossier here, I have a transcript of what the Prime Minister said about asylum in an interview on 26 January. He talked aboutfundamentally looking at the obligations we have under the convention of human rights.It is an extensive statement. In the past week, the Home Secretary has raised the question of whether suspected terrorists should be held for 14 rather than seven days. Problems arise out of article 3 of the convention on human rights. In addition, we have a big concern: there is a serious clash—it is not evolving; it is already in being—between the judiciary and Government over human rights. I hope that we can avoid all that; it will not do anybody any good to have a collision between the judiciary and Parliament. However, that is on the way if it is not here already.
Other questions relate to the extent to which the role of Parliament will be subject to a reverse takeover should the Convention proposals become part of our constitutional arrangements. That raises questions on entrenchment, and implied repeal, in cases such as Thoburn and Lord Justice Laws' judgment, the Ellen Street Estates case with Lord Maugham, which goes back a long way, and the Factortame and the Simms and O'Brien cases that I mentioned. They are seminal questions.
That whole raft of matters is not much discussed. I can understand why. Not unnaturally, Parliament does not enjoy going through the case law. However, when it comes to discussing the constitutional basis for the establishment of a human rights commission and its statutory functions, we are bound to bump up against some of those more fundamental questions. Then we have the question of what resources will be needed. I suspect that much more will be needed than we start with—we had the same problem with the Electoral 177WH Commission. There is also the matter of its range of functions and the desirability of its acquiring powers of enforcement.
When we consider the case for a human rights commission, we hear much of culture. I understand why that word has been used, but the Oxford dictionary defines "culture" asthe customs, institutions, and achievements of a particular nation, people or group.That is not what we are debating. We are dealing with universality—not a particular nation, people or group, but universal rights. That has certain resonances with Tom Paine. I shall give a flavour of that by quoting the words of Edmund Burke, just to show how some of these things have evolved. In his "Reflections on the Revolution in France", he said:We know that we have made no discoveries, and we believe that no discoveries are to be made, in morality, nor in the idea of liberty, nor many of the great principles of government which were understood long before we were born … In England … we have not been drawn and trussed in order that we may be filled like stuffed birds with chaff and rags and paltry blurred shreds of paper about the rights of man.I do not think that we would go that far today, but how do we manage to remedy abuse yet ensure that people's rights are protected without creating a vast agency or bureaucracy and consuming vast amounts of taxpayers' money—and all for a purpose that could be dealt with by Parliament? That is the essence of my argument, although I listened with respect to the arguments from the other side of the debate. Speaking personally, I hope to achieve the same result.
I do not want to give the impression that I would not want those serious matters to be properly remedied. However, when subjected to a rather more sceptical and forensic analysis, the more general arguments in the report come down to one basic point. As the principles are established and as the commission gets up and running, people will suggest that it can deal with all the abuses and the other matters that need to be catered for. I simply wonder where it will all end.
I doubt whether the commission would assist the courts in determining human rights questions, because the courts are quite capable of doing that for themselves. There are serious problems about whether, if a commission were established, it should be a federal system or a single body. A federal system would probably ensure that the existing bodies do not lose their current status, and that is another problem that is self-explanatory. People always want to defend their own arena, and I understand that.
I am extremely dubious about the relationship between the commission and Parliament. The hon. Member for Bristol, East referred to the question of reporting to Parliament; that is not accountability. The report states:A requirement to consult Parliament on the appointment of commissioners would act as a guarantee of independence and democratic accountability.I have to pass on that one; I do not believe it. In practice, therefore, there are severe doubts about whether the proposal is practical. I wait to hear what the Minister has to say.
§ The Parliamentary Secretary, Lord Chancellor's Department (Yvette Cooper)
We have had an extremely good debate on a complex issue, with some excellent and thoughtful contributions from many hon. Members.
I begin by paying tribute to my hon. Friend the Member for Bristol, East (Jean Corston) and to her Committee for their superb work, not simply in producing the report, which was the product of two years of detailed research and consultation, but for the huge assistance that they provide to the House and the Government in the detailed scrutiny of legislation.
A considerable amount of work passes through the Joint Committee because of the quantity of legislation and because of the work that it does in addition to its several inquiries. It is a tribute to the commitment of the members of the Committee and their staff that their work is of such a consistently high quality. I express my thanks to them, on behalf of many in the House, for the work that they do.
We should recognise how far we have travelled in the past few years. The European convention on human rights was drawn up more than 50 years ago and was signed by the UK Government 50 years ago this year. It was drawn up by British lawyers, among others, and reflects the values of the British political tradition and common law, including respect for life and liberty, freedom of expression, freedom of assembly, privacy and family life and many others.
The incorporation of the European convention on human rights into British law with the passing of the Human Rights Act 1998 will be seen in retrospect as one of the most radical and progressive acts of the first term of the Labour Government, and the hon. Member for Somerton and Frome (Mr. Heath) was right to remark on it. It means that the UK courts can join in the development of jurisprudence on these issues and, more important, that the decisions we take, the laws we pass in the House and the decisions taken throughout the public sector and in society are judged against a set of values and standards that we have set ourselves and that Parliament has debated. However, as hon. Members have said, there are still considerable areas in which we need to make progress. It is clearly the case that there are still many vulnerable people, often those who are weak, poor or dispossessed, who need stronger protection for their human rights against discrimination and poor treatment.
My hon. Friend the Member for Bristol, East set out forcefully examples of circumstances in which rights have not been respected. My hon. Friend the Member for Slough (Fiona Mactaggart) argued strongly about difficult situations in which rights conflict and in which powerful clashes between individuals, individuals and communities and different communities can involve human rights questions. She is right: the human rights tradition is not simply about individual entitlements, but about how we arbitrate fairly between competing needs and interests. We should be clear that the culture of human rights is not about selfish unconditional entitlements, nor is it about the classical concept of freedom or freedom from interference by the state. The culture of human rights is a much more complex and progressive framework for recognising reciprocal obligations and competing rights and needs in a just and proportionate way.
179WH It is important, as several hon. Members have pointed out, that the culture of human rights is about everyone. Often much is made of it simply being about rights for defendants or prisoners. My hon. Friend the Member for Bristol, East was right to highlight issues relating to the elderly and children. I have recently had conversations with someone in Victim Support about the work that it is doing to take up cases relating to the Human Rights Act 1998 and to use the human rights framework to promote respect for victims.
My hon. Friend the Member for St. Helens, South (Mr. Woodward), in a moving speech, pointed out that we have made much progress on this issue, but clearly there is more to be done to develop the culture of values around respect for human rights.
Considerable work is under way. The Audit Commission has done much work and is doing further work to follow up its earlier findings. The human rights unit in the Lord Chancellor's Department delivers free and popular training events up and down the country to public authorities and the voluntary sector. The unit also provides free publications, runs a helpdesk for members of the public and supports a project that teaches young people throughout the country about the values in the 1998 Act that underpin citizenship. Also, work is under way to promote citizenship in schools as part of the national curriculum.
We should not forget the work done by the many bodies in the non-governmental sector, such as the British Institute of Human Rights, Justice and the Citizenship Foundation, to provide training, events and materials, all of which contribute to building the culture of human rights.
As I said, there is much to be done; we recognise that we are on a journey. The Joint Committee on Human Rights has recommended that the next steps should be to incorporate human rights into a single commission that includes all the equality bodies. The report is strongly argued and extremely well researched. I welcome the report and the debate that we have had today.
As my hon. Friend the Member for Bristol, East pointed out, the Government set out during the passage of the 1998 Act that we would consider the need for a human rights commission. Since the Joint Committee began its inquiry, my hon. Friend the Minister for Social Exclusion has announced a scoping project—last May—to consider the future of equality machinery. It considers whether there should be a single equality commission incorporating all equality interests, in the light of the need to introduce anti-discrimination legislation to protect the aged and to protect religious beliefs and sexual orientation. The terms of reference for that project include a requirement toconsider the relationship between possible new arrangements for promoting equality and those for promoting and protecting human rights more widely".That was followed by the consultation document "Equality and Diversity: Making it Happen", the responses to which the Government are considering carefully.
We have seen developments in Northern Ireland and Scotland, with the creation of the Northern Ireland Human Rights Commission, which was part of the 180WH peace process following the Good Friday agreement, and the Scottish Executive's decision to set up a human rights commission.
The Joint Committee's inquiry clearly took note of all those developments, and the report reflects many of them. The Government have not yet taken any decisions on the role of human rights in a possible single commission, but we are giving the Committee's report very serious consideration. This timely debate will make an important contribution to the decisions that need to be made across Government on this important issue. Therefore, I cannot give an extensive response to many of the issues that have been raised; I shall simply make a series of observations on some of the points, in no particular order
First, there is clearly agreement that we need further support for the most vulnerable in society, for those in greatest need and for those who have the fewest people to advocate on their behalf. Many hon. Members made a powerful case as regards what needs to be done beyond legislation and litigation. In that respect, we must think in terms of the broader creation of values, whether across the public sector or society as a whole. That includes respecting the needs of the vulnerable and providing frameworks to arbitrate between competing needs.
The case for promoting the culture and values of human rights is clear-cut. In part, our task is to challenge misconceptions and to clarify that we are talking not only about individual rights but about responsibilities and reciprocity. It is also about challenging the broader misconception that human rights is about one group rather than another.
Secondly, there are many different views on how we achieve such a cultural change and on which institutional structures have an impact. Indeed, some people argue that institutional structures do not make a massive difference in many areas. For example, the Electoral Commission does immensely important work, but no one should expect it to solve all the problems of low turnout at elections. Clearly, political parties have much wider responsibilities in that respect, and there is a much wider debate in society and the media.
Hon. Members mentioned the national minimum wage. Society's attitudes towards it have changed in a way that would make it extremely difficult for the Conservative party to repeal it. Again, that is the result of a much wider debate across society, not simply of the work of a commission or an institution.
On the other hand, one might argue that institutions can effect and support change. For example, the Equal Opportunities Commission has clearly played a powerful role in reinforcing and supporting the Equal Pay Act 1970—it was controversial 20 years ago, but is not now—hand in creating a culture that supports equal pay and opposes discrimination on gender grounds. Therefore, there is a series of different views on the issue.
Thirdly, there are issues relating to the relationship between human rights and equality. Again, some people would argue that the traditions involved in human rights and equality are different and that they have developed differently in the British political tradition, while others would argue that there is an awful lot of overlap. I agree with my hon. Friend the Member for St. Helens, South that there are underlying links between 181WH equality and human rights issues. In the end, both traditions are based on the idea of giving people equal respect on the basis of their common humanity. Whoever we are, whatever we do, whatever our characteristics and whatever communities we belong to, there is something valuable about according us all equal respect on the basis of that humanity alone. That is common to both traditions. However, there are different views on the issue, and we shall need to take seriously the views of the commissions that already exist about the right relationship between equality and human rights.
My hon. Friend the Member for Stafford (Mr. Kidney) made important points about a single gateway for the public. Others have suggested having a single point of advice for the public services, too. Those issues must also be taken into account.
Fourthly, I should address some of the points made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). We are not talking about undermining democracy, whether the issue is the Human Rights Act or the commission. As the hon. Member for Stone 182WH (Mr. Cash) suggested, the Act gave elected representatives in Parliament the final say. It is a very sophisticated support for democracy. Democracy is strengthened by public debate and by public checks on what we do. Such things remind us of the need to respect fundamental democratic values in the interests of democracy, particularly in times of stress and insecurity. The Government still have much to consider. These are important debates, and this debate has made a very important contribution to our consideration. We need to recognise that we must all champion the Human Rights Act and the values of human rights.
Whatever decisions are taken about commissions, none of us must walk away from our responsibility as politicians to champion the values and culture of human rights across society. Wherever there are those who are vulnerable, treated badly, suffering and those who suffer most from inequality, they will need people to speak up for them. The Human Rights Act provides a great framework within which that can happen, but we all still need to speak up for them as well.
§ It being five minutes to Six o'clock, the motion for the Adjournment of the sitting lapsed, without Question put.