Back in the early 1980s I was a law student in Sheffield. One of my "legal heroes" then was a solicitor for the National Council for Civil Liberties, who had won an important case - Harman v United Kingdom. She went on to become a key player in the Labour Party - and was its acting Leader in 2015.
I appreciate that we are in the middle of a General Election - and you might not like her politics - but if you are preparing for an exam on Human Rights (such as the W201 Open University course), it's worth reading a speech she made back in June 2015 - during the 800th anniversary of Magna Carta. I should also note that she is a QC.
Yesterday we celebrated the anniversary of Magna Carta which laid the foundations for our democracy, human rights and the rule of law in this country and throughout the world. Today we are determined to defend our Human Rights Act.
Labour values are about social and economic rights. And they are also about the civil and political rights embodied in the Human Rights Act. British values – evolved over centuries.
But these are not just Labour values – they are British values and universal human values.
The horrors of the Second World War inevitably made people think afresh about the rights to which every human person is entitled by virtue of their humanity - and how those rights could be protected.
An international endeavour - including Britons - set out a Charter which aimed at nothing less than establishing the norms of international decency, which would apply everywhere and protect everyone.
The Universal Declaration of Human Rights – adopted in 1948 – and the European Convention on Human Rights agreed in 1950, and which we ratified in 1951, embodies those efforts.
Simple but powerful, enshrining:
• The right to life, liberty and security
• The right to a fair trial
• Protection from torture
• Freedom of thought, conscience, religion, speech and assembly
• The right to free elections
• The right not to be discriminated against
The Human Rights Act inherits and embodies those universal values, and people around the world are still fighting for the rights it contains and we enjoy today. It has done an immeasurable amount to raise standards across European countries who suffered so much in WW2 which was its aim.
The impact of the Human Rights Act has been profound.
It gives individuals rights which they can enforce here, in our courts, without having to traipse to Europe and wait years. But its impact has been much more far-reaching than the giving to individuals litigable rights - important though that is. It has precipitated good cultural and organisational change. It has changed the way public authorities reach decisions – both in respect of policies and individuals. It requires them to think not just about their own organisational exigencies but also about the rights of the individuals and communities affected by what they do.
When difficult judgements have to be made The Human Rights Act sets the framework for what has to be taken into account. The competing rights which have to be weighed in the balance. Like balancing the right of an individual to privacy against the right of freedom of the press.
Or when considering the qualification of those rights. Where there is a right but it is not absolute – such as the right to family life which is protected except where it is necessary in a democratic society in the interests of national security public safety or the economic wellbeing of the country, for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others.
Often there is no easy right or wrong decision. But The Human Rights Act makes the thought process right. That thought process is important for the individual but it is also a reassurance for institutions who make desperately difficult decisions because it allows them to demonstrate, that in making a decision, they did give proper weight and consideration to the relevant rights.
Believing in those rights is one thing. But their application is quite another. It’s hard. What those founding signatories knew – and what remains true today – is that defence of those rights has to be uncompromising. Defence of those rights will not always be popular. And sometimes will be deeply unpopular. As US Chief Justice Frankfurter observed as long ago as 1950:
“The safeguards of liberty have frequently been forged in controversies involving not very nice people”
We must defend the rights of every individual - those we don’t agree with or approve of, as well as those we do agree with and approve of. We have to protect the minority from the majority.
And we have to protect the individual from the state when it gets it wrong. I’ve experienced this myself when I was the individual whose rights were trampled by the state.
In 1981 when I was legal officer at Liberty, acting for a prisoner in a case against the Home Office, the government prosecuted me for contempt for allowing a Guardian journalist, David Leigh, to come to my office to look at Home Office documents which had previously been secret but been read out in open court as part of our case. Despite the fact that they’d been read out and were therefore in the public domain, the Home Office were so keen to suppress what they showed that they used the power of government to throw everything at me. I didn’t think I’d done anything wrong as the documents had been read out in court. But at that time Liberty was loathed by the establishment – not least for our strong stand against internment in Northern Ireland. So my solicitor told me frankly that there was no chance I’d get off. He said, “who do you think the courts will prefer – you or the Home Office?” He was right. The High Court found me guilty of contempt. My appeal to the Court of Appeal was turned down by Lord Denning. And it was only when my case was heard in The European Court of Human Rights seven years later – that I won and was totally vindicated.
The moral of my case is that if we’d had the Human Rights Act then I don’t think they would even have taken the case against me. And if they had, I’d have won in the British courts because the judges would have had to take my Convention Rights into account.
But it’s also the case that if we’d not been part of the ECHR – which is what the government now seems to want – I’d never have been able to clear my name in Europe.
I know what it’s like to be an individual at the mercy of an overbearing state as a young lawyer, who’d done nothing wrong but with my whole career and reputation threatened. But I can understand why it’s easy to criticize the Human Rights Act and why people can feel uncomfortable about it. I know what it’s like from the other side too.
I’ve been a Cabinet Minister and I know that The Human Rights Act is always going to be a nuisance to those in power because you want to get on and do things.
But it’s right that as a government minister that you should have to look over your shoulder and that your power is constrained by other people’s rights.
And it is challenging because we believe in the sovereignty of parliament - and human rights law tempers parliamentary thinking. But it should. Its right that the question is always asked - and the answer certified - “this proposal is compliant with our commitments to human rights.”
But remember that unlike other Bills of Rights in other parts of the world, the Human Rights Act does not allow judges to strike down Acts of Parliament. It creates a conversation between the judiciary and legislature, parliamentary sovereignty is preserved.
Sometimes we all know that defending the Human Rights Act can feel challenging because it can involve European judges protecting the rights of an unpopular individual from an elected authority, or protecting the rights of an unpopular minority from a popular majority.
But it is the right thing to do. As Supreme Court Judge Brenda Hale said:
“Democracy values everyone equally even if the majority does not”
We have to recognise that there is an inherent susceptibility for those who have power to extend it, to over-reach, and ultimately abuse it. And that is irrespective of how legitimate that power is and how they acquired that power and how strongly they believe they are doing the right thing.
So we do need to have our executive and our legislature set within a framework of human rights.
And, individuals do need to be able to court to directly enforce their convention rights.
And we do need to have an international framework for our own judiciary. Our judiciary is independent and uncorrupt. It is admired around the world. But it is not infallible and it does get pressurized by government.
Having judicial oversight from a group of judges from outside our country is a check on them but also an important bulwark for our judiciary against the temptation of any government to tamper with them. Each individual jurisdiction benefits from the constant dialogue between the national and the international judiciary.
We here understand that there can never be any complacency - there has to be eternal vigilance in defending these rights. No country should ever feel so confident that it can regard itself to be in a “post-human-rights era.” Compliance with basic norms of human rights is not a state that you reach, and then you don’t need anymore. It requires constant vigilance for the rights of individuals, constant guarding of the rights of minorities, constant restraint on those who have power.
The government can’t “amend” some of the convention rights but still keep our place in the Convention. And leaving the convention would have serious and far reaching consequences.
As I’ve said, I think it’s important - for our own sake - that our human rights framework is set within an international system. But it’s also important for the human rights of those in other countries.
Our commitment to human rights has to operate here at home. But our commitment is equally to human rights for people in the rest of the world. If we were to walk away from our international human rights treaty obligations, we would deprive ourselves of the ability to press other countries to accept high levels of human rights compliance. And we cannot say to others in Europe - particularly Eastern Europe - that they should stay within a European framework but we have somehow outgrown it, or don’t need it anymore.
One of the most important aspects of the international framework of human rights law is precisely so that governments can’t have their own definition of human rights. In seeking to do this, our government will be giving the green light to countries who abuse human rights to do the same.
The European Convention on Human Rights is just one of a network of treaties we have entered into enshrining the same rights such as the UN convention against Torture and the UN Convention on the rights of the child. To leave the European Convention raises questions about our willingness to comply with those other commitments on human rights.
But standing up for human rights goes beyond our moral authority abroad. It’s about our character and identity as a country. Do we really want our country to no longer consider it necessary to adhere to and shape common norms of decency and justice abroad. I would say no.
We are here today not only because we care about human rights but because we feel they are under threat. The Government has signaled that they want to fundamentally undermine the Human Rights Act. This is what lies behind the announcement in the Queens Speech that they would be consulting on a “British Bill of Rights”. We think that even the consultation is the start of a slippery slope.
You can’t be a bit in favour of human rights and a bit against it. You have to be clear and resolute about it.
The Prime Minister has already indicated that their plans will be delayed – so no bill in the Queen’s Speech but a promise of a consultation paper in the Autumn. No doubt this delay is not just because they have a slim majority and know there’s a lot of opposition to their plans. It’s also because their plans are incoherent. As I’ve said, they can’t opt out of some human rights but still be in the European Convention.
They are also politically and constitutionally destabilising. The complete incorporation of the European Convention is written into the Good Friday Agreement and The Human Rights Act is written into the devolution settlement for Scotland. Amending the Human Rights Act would destabilise those settlements and have serious constitutional consequences undermining the Good Friday Agreement in Northern Ireland and the devolution settlement in Scotland.
We will protect human rights. We are determined
• that human rights legislation should not be watered down,
• that its limits should not be narrowed,
• there should not be any circumstances where there should be a “opt out” from some of the human rights contained in the European Convention
• and that we should remain within the framework of the European Convention on Human Rights
There is a broad alliance of people and organisations in this country who will defend human rights. We will be part of that but we will work with those of other political parties because support for the Human Rights Act is not just the preserve of the Labour Party. There are those in the Tory party who believe in this just as strongly as we do and articulate it clearly – as did William Hague when he said
“The belief in political and economic freedom, in human rights and in the rule of law, are part of our national DNA. Where human rights abuses are seen to go unchecked, our security and our prosperity suffer as well. And how we are seen to uphold our own values is a crucial component in our influence in the world.”
He articulates how human rights are part of, not at variance with, our British values and matter for our place in the world.
There are MPs in all parties who support human rights. There are peers of all parties and who are in no party who will defend the Human Rights Act.
In my role as interim leader of the Labour Party I give you my assurance that we are going to be clear with the Prime Minister that he must not go ahead with this. I’ve today written to the Prime Minister demanding that he drops these plans and I’d like to invite you to co-sign the letter.
Together we can send a strong signal that he mustn’t publish the consultation paper, he mustn’t publish a draft bill, he mustn’t entertain the idea of leaving the ECHR.
What an irony that yesterday the Prime Minister was presiding over the celebration of Magna Carta at the same time he’s planning to undermine the Human Rights Act. No wonder that though he mentioned human rights in South Africa – and preyed in aid Nelson Mandela – and mentioned human rights in India – and preyed in aid Ghandi – he could not bring himself to mention Europe and our Convention.
But we believe that, together, we can prevent the government eroding human rights. Their policy is intellectually incoherent and, worse, it’s wrong in principle.
Though Labour is in opposition, not in government, we believe that in this case, on an issue of such profound importance, they can and should be held back.