Rt Hon Lord Lilley

    Mr. Peter Lilley (Hitchin and Harpenden): Early exchanges in the debate between the Minister and hon. Members raised a conundrum that we need to resolve. Except in one instance when the Committee makes general comments on the state of human rights, it will come into play only if an Act is found to be non-compliant by the courts. The Labour Government intend to introduce only Bills whose compliance with human rights legislation they have certified, so why do we need the Committee?

    There are two possible answers; they will naturally affect our judgment as to whether the resolution is correctly framed. The first is that the courts may find old legislation non-compliant. Even though the House and the country have been perfectly satisfied with it and do not feel that it infringes human rights in any way, some judge may decide that it is non-compliant.

    Secondly, the Government may misjudge whether their legislation is compliant. The reason for that is because the application of the human rights convention is essentially subjective. Human rights are what the relevant judges decide the convention means. That is a subjective judgment.

    There are no absolute and incontrovertible human rights. A balance must always be made between one right and another. We can say that there is a right to free speech, but that may conflict with a right to privacy; we have to achieve a balance between the two. In the past, we have recognised that that balancing process is, in essence, political; it has to take into account practical realities–the temper and mood of the country, past experience and so on. Hence the decision was taken by the people‘s parliamentary representatives in this place and not by the courts or by unelected people who could not be turfed out if they got the judgment wrong.

    There are no infallible rules by which a given convention–rather abstractly and vaguely phrased–can be applied in practice, so we are reliant on the subjective working of judges‘ minds. I shall return to that point in due course.

    Mr. Redwood: I agree with my right hon. Friend, but he should note that paragraph (2)(a) does not limit the Committee to discussing issues on which we may be deemed to be in disagreement with the convention. The proposal is so wide ranging. Does he not see that the Committee could also set out its own agenda, which might be different from that of the convention and of the Government? Would there not then be an even bigger muddle?

    Mr. Lilley: My right hon. Friend is correct. That was the exception to which I referred when I pointed out that the Committee would normally come into play only when there had been a finding of non-compliance. I shall not follow my right hon. Friend down the avenue of how the Committee might interpret the power that, for some reason, it will be given under this proposal.

    As I understand it, normally, in considering whether any Act of Parliament infringes human rights, judges will interpret the Act not as it has been written but as they think it ought to have been written to make it compliant with the European Convention on Human Rights. If they cannot torture the Act‘s wording into compliance with the convention or with what they think it means, they will rule that it is non-compliant.

    The Government will then draft an order to make that legislation compliant. The Committee will examine that order, and say whether or not it agrees with it or whether it should be amended. It will not be able to amend it; it will be able only to suggest amendments. The Government may then take those suggestions on board, or not, as the case may be. They will then put to the House their final draft of the order necessary to make the legislation compliant. The House will be able to reject or accept that order, but not to amend it.

    Mr. Hayes: My right hon. Friend seems to be saying that the Committee is either superfluous or highly intrusive. To paraphrase my right hon. Friend the Member for Wokingham (Mr. Redwood), it is either too broad or too narrow. If so, and if the Committee is to be intrusive, surely it will be doing the bidding of the courts rather than the bidding of the House. That is certainly the implication of what my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) is saying.

    Mr. Lilley: That may well be an implication of my remarks which my hon. Friend has drawn from them, but it was not the direction in which my argument was heading.

    My point is that the six Members of Parliament on the Committee will be the only Members of the House who will have any opportunity, and then only indirectly and with the Government‘s say-so, to amend the order that the Government put before them. The legislation allows the Government to amend primary legislation in response to a ruling from the courts by an order, and if I am correct, and doubtless the Minister will intervene if I am not, the House will not have the chance to amend that change to our primary legislation. It is only as a half-hearted response to the fact that we are faced with a fait accompli–the courts driving the Government to introduce an order that is not amendable–that the Committee is being set up to provide the spurious pretence that amendment is possible.

    Mr. Hayes: I hope that my right hon. Friend will agree that his proposition and mine are not mutually exclusive. It may well be that the Committee will do the work of the House in the sense that it replaces the House, but it is also doing the bidding of the courts. The worrying thing about the Committee is that if it is not superfluous, as we all hope it might be, it will be highly damaging.

    Mr. Lilley: I am sure that my hon. Friend is right. The Committee will almost be institutionally biased, if I may coin a phrase, in seeing its role as simply deciding whether the Government have correctly interpreted the will of the courts and succeeded in rendering legislation compliant, in the courts‘ view, with the human rights convention. There is no positive compulsion in the Committee‘s terms of reference, as laid down by the motion, but that is how things will work out in practice and it is the only way in which an all-party Committee could operate, except in the most exceptional circumstances.

    We are faced with a situation in which the Government are pretending to provide the House with at least some means of influencing the orders that they will place before it, and that means that only the Committee, and the six members of it who are drawn from this House, will have any chance of influencing the detail of the order put before the House.

    That is monstrous in two respects. First, six Members are far too few. The Committee should really be of the whole House. If the motion is not passed tonight, we would have the chance to table amendments to that effect. Secondly, the Committee should have the power not just to suggest amendments to the Government, but to vote and insist on amendments to the Government‘s proposed Standing Order. I would like us to move in that direction.

    We all know that, in practice, once this House is faced with a finding by the courts of non-compliance in respect of a piece of legislation that it has passed, although notionally retaining sovereignty, as the Minister tried to convince us it would, it will not reject or repudiate the finding, say that it intends to allow the legislation to stand or alter it in ways that do not at least try to remove the courts‘ objections.

    The House will not do so because if it did it would be held up for vilification by the media as opposed to human rights. No one would ask to whose definition of human rights the House is opposed, or whether it has a different, possibly higher, better, freer view of human rights in such circumstances. It will be labelled by the courts as against human rights. So, de facto, sovereignty has been surrendered and rendered inoperable by the procedures of the underlying legislation. The motion does nothing to restore sovereignty to the House, as the Minister pretended. We should be very clear about that.

    Mr. Hayes: We have come to the nub of the issue. My right hon. Friend seems to be saying that the Committee is a palliative, a pretence. In practice, the Government and this House could in no way overrule the decision of the courts for the reasons that he has given. We are setting up the Committee to make the matter look better, acceptable–to make hon. Members think that they have had some involvement, when in fact they have had almost none.

    Mr. Lilley: Yes, having been castrated, the House has been given the chance to pretend that it still has some role to play in the harem. It has not–at least not one that will be much fun. All this matters a lot because we are empowering courts to review and consider legislation and, effectively, to require the House to alter it if the courts think that it does not meet their beliefs of what human rights should be.

    I was much struck by the comments of Hayek in “Law, Legislation and Liberty”, in which he says that, normally, the legal profession is the most conservative of professions, which will try to interpret things in line with the status quo–except when it is driven by a new legal philosophy. Then, he says, lawyers become members of the most radical of professions, altering law in every jot and tittle to bring it into line with their new philosophy.

    Unfortunately, our legal profession is increasingly dominated by the philosophy of political correctness and of positive rights rather than the traditional view of procedural rights. So, we are likely to find ourselves with a legal profession introducing increasing numbers of rulings to the effect that the laws passed by this House do not meet their idea of the law of the country. They will be proposing that there are legal rights to a job, for example. If measures under the Government‘s new deal do not automatically give people a job of the type to which the courts think that people have a right, the Government will be required to change that legislation.

    We could find all sorts of positive rights emerging, for example, in the sphere of employment employers might be deemed to have a duty to employ people–rather than simply not to discriminate against them–because they belong to some class that is under-represented among the firm‘s staff. Can we imagine the Committee amending an order that a Government–

    Mr. Lilley: Sensing that you were about to bring me back to that point, Madam Deputy Speaker, I had reached it just as you rose to your feet. The precise matter to which we must give attention is whether or not the Committee would behave in a way that would improve matters. In the powers and duties given to the Committee, I perceive no evidence that would convince me that the Committee would ever help us to stand up against a legal profession that is empowered by the Human Rights Act and motivated by political correctness to overhaul the law.