HC Deb 06 March 1996 vol 273 cc308-16

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Mr. Jacques Arnold (Gravesham)

There is a rising tide of anger in this country at the apparently increasing number of judgments from remote European courts that fly in the face of sound common sense. Increasingly, those judgments are defying the will of the House and are overriding law passed after due consideration here and voted on by elected representatives of the British people. We must deal with that dangerous phenomenon.

We must distinguish between the judgments of the European Court of Justice and those of the European Court of Human Rights. Only yesterday, a European judgment prescribed massive compensation payments to Spanish fishermen banned from fishing in British waters, and the compensation payments are to be at the expense of the British taxpayer. Not so long ago, there was a ludicrous judgment to the effect that the Ministry of Defence should compensate service women dismissed on becoming pregnant, despite the terms and conditions of service that they accepted before entering the armed forces. Both were judgments of the European Court of Justice. That court is a separate and major problem worthy of careful consideration, but that matter is not for today's debate.

This debate is concerned with the judgments of the European Court of Human Rights. Let us consider some recent cases which highlight the problems and which have enraged a clear majority of the British population and, I am sure, of hon. Members.

First, in August last year, the European Court of Human Rights in Strasbourg ruled that the legal costs of bringing a case should be paid by the British Government to the relatives of the IRA terrorists who were killed during an operation that they were carrying out to place a bomb in Gibraltar. Let us remember that that bomb would have killed or maimed many service men and innocent bystanders.

Secondly, it was ruled last month that the Home Secretary, who is answerable to the House, may no longer determine how long juvenile murderers must stay in custody for the protection of the public and that such decisions should be passed to the Parole Board. That means that, however strongly people and Parliament feel about a particular case, there will be no redress through our democratic system.

Thirdly, as long ago as 1982, the European Court of Human Rights ruled that corporal punishment in schools infringed the rights of parents. Some schools attempted to devise a parental authorisation form, but the resultant inequities among children were such that corporal punishment in state schools was effectively abolished. That was done in response to a legal requirement, not as a result of mature reflection or of that sanction being replaced with one just as effective.

More than 10 years later, it can be argued that the current problems of indiscipline in our schools stem from that decision. We have expected our teachers to maintain an orderly school environment without the adequate sanctions to enforce it. It was a triumph of idealism, enforced by remote and irresponsible judges, over the popular will and, dare I say it, over common sense.

Only yesterday, a Ministry of Defence report was published showing that 80 per cent. of service men oppose the lifting of the ban on homosexuality in the armed services. Only 5 per cent. said that the ban should be lifted immediately. Common sense and popular opinion have spoken, yet four dismissed homosexuals are taking their case to the European Court of Human Rights. If they win, our courts, our procedures and the express wish of service men and of the House will be overruled yet again and taxpayers' money will be disbursed yet again.

There is a range of further cases in which law passed in the House has been overruled—I am thinking of anti-terrorist, contempt and blasphemy laws, among others.

Mr. David Nicholson (Taunton)

The point is that the European Court of Human Rights may well have been set up for sensible reasons some 50 years ago. I am sure that my hon. Friend knows the circumstances in which it was established, but it has become increasingly political as a court. While I have no objection to British citizens taking matters to a final court when British legislation is ambiguous or when the administration of law in this country has not been satisfactory—as I fear is sometimes the case—it is unacceptable to hon. Members and our electorate that the definite will of Parliament, as expressed in legislation, should be overruled by a foreign court.

Mr. Arnold

That is precisely what is happening—the court is overruling the House. After such cases, Ministers have all too often come to the House to amend the law, not because it has proved right to do so after mature consideration and debate, but because we have to fall into line with the latest European Court ruling. Clearly, those are cases of judge-made law, not law made by representative democracy.

Why are we getting those increasingly bizarre judgments? I believe that it is because, as with so many of our European institutions, there has been a distortion of the original intentions of the founding fathers and because circumstances in Europe have changed out of all recognition in the past 45 years.

Let us consider the circumstances in 1950, when the convention on human rights was signed. Europe was recovering from the horrifying excesses of the Nazi regime and was only too aware of the fiendish actions of the Soviet regime with its gulags. Those tragic events coloured the views and actions of the politicians who were then responsible.

The late Duncan Sandys, then the right hon. Member for Streatham, told the House on 13 November 1950: The Government may, of course, say that human rights in this country are so safe in their hands that no outside protection is needed. We need not argue about that today. The fact remains there are certain countries in Western Europe with large Communist elements, which attach the greatest possible importance to the support which this Court can give them in certain circumstances. Robert Boothby, the then hon. Member for Aberdeenshire, East, said in the same debate that the Communist tactic is a brilliantly devised technique of infiltration, treason and ultimate violence, and the destruction of the non-Communist world by the fomentation of disputes. Against this technique, which exploits all methods of democracy, there is only one answer—the Charter of Human Rights."—[Official Report, 13 November 1950; Vol. 480, c. 1412–27] But, for all those concerns expressed at the time, the view of the House remained that human rights in this country, for which hon. Members have fought for centuries, were safeguarded. That fact was best summed up the following week by Sir Hartley Shawcross, the then Attorney-General, who said: I think we are entitled to say that the law of this country has always been in advance of the laws of most other countries in regard to human rights."—[Official Report, 20 November 1950; Vol. 481, c. 16.]

Mr. David Martin (Portsmouth, South)

It is important to remember that when the court was originally set up, it was aimed at citizens of countries which did not have the parliamentary institutions that we have, but which had the most reprehensible and horrible regimes, with no individual redress for the lack of human rights. In practice, the convention has been applied because we respond to international judgments and often add extra measures to them. The convention has been applied in countries that are responsive to their people, as this country is, and it has been misused to clobber us on various occasions when it was originally intended for regimes very unlike our own.

Mr. Arnold

Yes. That is especially so, because the convention was signed when Germany was just emerging from its terrible experience on human rights and when France was recovering from the Vichy period, which saw considerable infringements in human rights. Those countries are western and civilised countries in the long term.

Today, Europe is totally different. Totalitarianism has gone, be it in the fascist form of Franco in Spain or Salazar in Portugal, or of the communist variety in Poland or the then Czechoslovakia and all points east. Membership of the Council of Europe and the European Union is dependent on democracy and human rights credentials. All new entrants from central and eastern Europe that have thrown off the yoke of communism are subject to those tests.

We have developed non-governmental organisations such as Amnesty International and a series of others, which investigate and publicise such matters and bring facts to the attention of sovereign national Parliaments. However, those very organisations are themselves part of the problem. If they fail to win cases in the British courts, they use the European Court of Human Rights process as a means to override British courts. They foster many appeals to the European Court of Human Rights with a classical British efficiency, frequently funded by legal aid.

Such organisations are increasingly working through the European courts, and operating on a narrow, legalistic approach rather than bringing their cases to this democratic House. They are further encouraged to do so because European Court decisions effectively overrule the House through the requirement to implement consequential legislation. The reverse is not true. The cost to the British taxpayer is immense. Not only is legal aid incurred, but the cost of the defence case has to be paid. In the two years from 1993 to 1995 alone, the cost was a direct expense of £300,000 of taxpayers' money.

What are we going to do? The mere words "human rights" are such that mention of change brings forth terrible accusations of fascism, and Governments fight shy. However, the cases that I have raised today are not examples of a defence of human rights. They are politically correct judgments by remote and technically irresponsible judges. The place for political judgments is here in the House of Commons, where judgments and decisions are made by elected representatives of the British people.

We should fire a warning shot over the bows of this juggernaut. We should take a leaf out of the book of United Nations agencies reform, and look at the example of UNESCO. That organisation became inefficient, arguably corrupt, and in many ways ineffectual. We withdrew from membership. I believe that we should deal with the European convention on human rights in the same manner. It has become an anachronism, with its terms drawn too widely, which have been defined in a manner ever more detached and bizarre by the judges.

We, the mother of Parliaments, should determine that the Government should exercise their rights under article 65 of the European convention on human rights and denounce our participation, which would come into effect six months later. We lost a magnificent opportunity recently, when the Government could have refused to ratify protocol 11 and could have refused to renew our adherence. They did not.

The fundamental question before the House of Commons is whether we intend to uphold our sovereign rights and our centuries-old responsibilities to defend the right of the individual, or whether we shall increasingly cede those sovereign rights to unelected bodies that make pseudo-judicial but nevertheless political decisions. It is time that we faced up to our responsibilities in the House and to the British people.

1.14 pm
The Minister of State, Foreign and Commonwealth Office (Sir Nicholas Bonsor)

I am extremely grateful to my hon. Friend for raising this issue in the House today. The Government are, of course, aware of the concerns that he mentioned. I know that those concerns are widespread, and I shall deal with them a little later.

It is important to start by putting the entire issue into its full context. I wish to emphasise the clear importance that the convention has as an international instrument for the protection of human rights. I remind the House that, in 1950, Winston Churchill supported the court's establishment when he said: We have the Charter of Human Rights and we must have a European means of defending and enforcing it". He argued that there had to be means whereby human rights abuses can be brought to the test of impartial justice. That statement is as true today as it was then.

Winston Churchill saw the European movement, especially the parts that are now represented by the Council of Europe and the European Court of Human Rights, as the central unifying elements in post-war Europe. The sentiment that he expressed is indeed true today. He went on to say: The Europe we seek to unite is all Europe; and in our Movement we must strive, by every means in our power, to help bring about conditions in which our fellow-European, now living in the satellite states of Russia, will be united with us. Of course, it is one of the great changes in recent years that those states are no longer under Russia's yoke and can seek the way and the means to become free in a true sense and to justify their positions in a democratic community by guaranteeing the rights and freedoms of their peoples. I have to say that in some instances, as the House knows, that has not yet been fully achieved. We believe that the convention is an extremely important part of the continued pressure on those countries to seek to achieve that goal.

The convention is now the code of good behaviour for the wider Europe. That is not just rhetoric. The new democracies are using the convention as a benchmark for their legal and political systems and they are amending their laws and practices to bring them into line with its standards.

Mr. David Martin

On the subject of legal principles, the difference between our country and others is that—in our definition of impartial justice—the sovereign Parliament has always had the last word on any decisions in court. The way that the European Court of Human Rights operates denies our centuries-old tradition that in the end the sovereign Parliament has a say. That is part of our definition of impartial justice, to which Sir Winston Churchill referred.

Sir Nicholas Bonsor

I accept that our country has been streets ahead—of most of the countries to which I referred earlier—in the establishment of justice and in the way in which we have been accustomed to applying it. None the less, the fundamental underlying principles whereby liberty is guaranteed are universal and international. I do not believe that my hon. Friend would wish to see a situation in which the House denied the application of international standards of justice and individual liberty.

We insist that respect for human rights and democratic principles forms part of the European Union's trade and co-operation agreements with third countries. There is a clause to such effect in all treaty documents now issued by the EU under trading arrangements. The limitation of the convention is not as narrow as perhaps some of my hon. Friends might have thought. We are using it as a mechanism to spread the principle of the freedom of the individual and the underlying message of the convention beyond the European bounds. As such, the convention is a useful tool to try to establish both democracy and freedom across the entire globe.

Under the Dayton agreement on Bosnia, for example, the convention is applied there directly. The convention is thus serving an important practical purpose, in an attempt to restore freedom and liberty to that very troubled area of Europe. The convention is playing a critical part in the re-establishment there of the kind of freedoms that we are discussing today. That is the crux of the matter. I accept my hon. Friends' concerns, but this country was one of the convention's original signatories and the first to ratify in 1951. If we now denounced it, that would have a devastating effect on the chances of establishing the convention as a basis that other countries are prepared to adopt.

The convention's role as a bulwark to protect the rights of the individual and to provide the yardstick whereby democratic values were to be established and measured was clearly enunciated by Duncan Sandys in 1949, when the draft convention first saw the light of day. Where I differ from my hon. Friend the Member for Gravesham (Mr. Arnold) is that I believe that that role applies today as it did originally, whereas my hon. Friend was suggesting that the world has changed so much that we should withdraw from it and change our views on the convention's underlying message. I cannot agree.

Mr. Jacques Arnold

My hon. Friend said that human rights standards are imposed in a number of European Union commercial arrangements, which is precisely my point. The convention, with its system of interfering courts, has become an anachronism. We should take steps to bring about reform. Even the founding father said that there was no problem with the human rights record of this country or with the powers and determination of the House to uphold the rights of British citizens.

Sir Nicholas Bonsor

I agree with my hon. Friend that it is time to review the terms of the European Court of Human Rights. I shall return to that aspect later.

The United Kingdom is fully familiar with the rights guaranteed in the convention, which include freedom of speech, freedom of assembly and the right to a fair trial. The first protocol also safeguards the right to peaceful enjoyment of possessions and requires that the philosophical and religious convictions of parents must be respected in the choice of their children's education.

As a founder member of the convention, the UK signed up to two optional articles covering the right of individual petition and compulsory jurisdiction of the European Court in 1966. In the time that has elapsed since, a number of cases have been held against us. However, the relatively high number of applications from the UK and the relatively low number of complaints upheld is a healthy sign of the level of awareness of human rights issues in the UK and of the Government's record in fulfilling their international obligations—not things of which we should be remotely ashamed.

The vast majority of cases brought under the convention are rejected in early stages and never see the light of day. Of those that did reach the European Court, it found against the Government in 40 cases. Countries such as France, Austria, Italy, Belgium, the Netherlands, Finland and Switzerland have much higher figures than the UK, considered either by head of population or by the length of time that we have accepted the right of individual petition compared with those countries' much shorter time scales.

Up to May last year, France and Italy—which recognised the right of individual petition only in 1981 and 1973 respectively—incurred in the case of France 30 violations before the European Court and 51 before the Committee of Ministers, and in the case of Italy 83 and 347. The number of decisions awaiting remedial action is 40 for France and 330 for Italy.

Our successes often receive no publicity, as is so often the case. The phrase, "The Government win again," is apparently not one to which it is easy to make our media pay attention. There have been many useful decisions. In the context of Northern Ireland, it was extremely helpful to have it confirmed by an independent tribunal that special emergency powers are in line with convention standards. That happened in the case of Margaret Murray, which involved holding a suspect for interrogation. The same happened in other cases, such as that of Kelly, which involved the shooting of a joyrider, and Brannigan, when the question arose of the validity of the UK's derogation from the convention. The court upheld the fairness of our system of planning appeals in the Bryan case, and the immunity from libel action of Department of Trade and Industry inspectors in the Al Fayed case. Most recently, the Commission has rejected several complaints from pit bull terrier owners about the provisions of the Dangerous Dogs Act 1991. Where there are areas of contention, it is useful for the Government to have a non-UK arbiter acknowledging that this country is acting fully within the convention and reassuring world opinion.

Of course, I accept that there has been disquiet over some judgments, and that disquiet is fully shared by the Government. My hon. Friend mentioned several cases, so I shall not repeat the details. It is worth pointing out that we were particularly unhappy with last September's Gibraltar judgment on McCann, and we made that abundantly clear on several occasions in the House. It is worth bearing it in mind that the judgment was taken by only a narrow margin, and that the court found against the Government on one point only—the control and organisation of the operation. The court rejected the more significant claims that our law had breached the convention, that the inquest procedures were inadequate, that the killing of the three terrorists was premeditated, and that the action of the soldiers was in violation of the convention. In all those critical areas, the court found for us.

We should also remember that the court rejected the applicants' claim for compensation on the ground that the persons who were killed were terrorists intending to plant a bomb. The Government were left with the duty to pay costs, which we did in accordance with our practice of obeying international law. I repeat that we were not happy with that judgment. We were also profoundly unhappy with some other judgments, to which my hon. Friend referred.

My hon. Friend did not raise the question of parliamentary scrutiny in this debate, but he frequently does so. I am aware that some hon. Members have questioned why—given that the convention affects the British people so directly—Parliament was not consulted before the Government decided to renew the two optional articles in January. If we had done so, that would have been contrary to previous practice. We have never at any time since 1966 put the question of renewing the articles to the House—although we kept the House fully informed, as we have on this occasion.

Mr. Jacques Arnold

May I intervene on that point?

Sir Nicholas Bonsor

I have only three minutes left. I shall give way to my hon. Friend if there is time when I conclude my remarks.

The disquiet that we all share about some of the judgments of the Strasbourg court prompted the Government last year to review most carefully our continued adherence to the convention. There is a fundamental distinction between our dissatisfaction with certain judgments and our attitude to the European convention on human rights. The convention has our full support. We played a crucial role in drafting it, we continue to support it, and we believe that it remains an extremely important tool for ensuring that human rights are observed by the wide international community. However, we want changes—and I shall briefly outline them.

We want to ensure that judgments are not made against our national interests, while maintaining the defence of individual liberties within our society, and we want changes that ensure that the Strasbourg institutions take all relevant factors into account. To that end, we have in mind improvements in Strasbourg's fact-finding procedures. We should like to sharpen the focus on the principal and relevant issues before the court. As a first step, we are proposing that the court considers introducing a new procedure under which it would make known its main areas of concern early enough for them to be addressed at hearings. If we had known the critical issue in the Gibraltar inquiry, we could have rebutted some of the facts on which the court based its judgment. That change would be a significant step forward in preventing the repetition of such an outcome.

We also want to ensure the quality of judges on the new permanent court that will be set up under protocol 11, probably in a couple of years' time. Good selection procedures for judges are important, and we want to start discussions soon in the Council of Europe, to see whether we can ensure that the court's judges are of the highest international calibre.

We shall argue for maintenance of the common standards of the European convention on human rights. At the same time, we shall seek wider and more consistent recognition of the need to respect different circumstances, traditions and laws and the ways in which standards are implemented in different countries. That, of course, will be extremely significant should the question of homosexuality in the armed forces arise. It is important that the standards of our approach to our military forces and the needs of the country are fully taken into account by the court when it reaches its conclusion. It is essential that these changes are in place before that occurs.

Mr. Deputy Speaker (Sir Geoffrey Lofthouse)

Order. Time is up.