Does the Human Rights Act need to be reformed?

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25 years ago, the landmark Human Rights Act changed the way in which human rights were enforced throughout the United Kingdom.

The Act gave domestic effect to the European Convention on Human Rights. The UK was one of the first countries to sign and ratify the convention in 1951.

Last year, the Government brought forward legislation for a British Bill of Rights, which would repeal and replace the Human Rights Act, but would place limitations on the interpretation and enforcement of those rights. 

Host Joanna Cherry is joined by Professor Francesca Klug who considers the impact of the Act and offers practical examples of its application, looking at the rights of people in care homes during the pandemic and changes to the scope of inquests which contributed to the establishment of the Hillsborough, Grenfell Tower and COVID-19 inquiries.

Professor Klug was part of the legal team which assisted the 1998 Government to devise the model that gave effect to the European Convention on Human Rights in our domestic law, and part of the Government's task force which oversaw the implementation of the act in its early days. She has been awarded an OBE for her services to human rights.

Joanna is then joined by the Liberal Democrat Peer, Baroness Sarah Ludford and David Simmonds MP, Conservative member of Parliament for Ruislip, Northwood and Pinner who were members of the cross-party Joint Committee on Human Rights when it published its report into Human Rights Act reform, which inspired the focus of this episode of the podcast.

Transcript

Joanna: Hello, and welcome to Committee Corridor. 25 years ago, the Landmark Human Rights Act changed the way in which human rights were enforced throughout the United Kingdom.

The Act gave domestic effect to the European Convention on Human Rights. The UK was one of the first countries to sign and ratify the convention in 1951.

Last year, the Government brought forward legislation for a British Bill of Rights, which would repeal and replace the Human Rights Act, but would place limitations on the interpretation and enforcement of those rights. Today, we're going to ask, does the Human Rights Act need to be reformed?

I'm Joanna Cherry, the Scottish National Party member of Parliament for Edinburgh South West, and I chair the Joint Committee on Human Rights.

Our Committee has 12 members, appointed from the House of Commons and the House of Lords. We examine matters relating to human rights throughout the UK, and we scrutinise Government bills for their compatibility with our human rights obligations.

Our Committee combed through the detail of the Bill of Rights bill, and in answer to today's question: does the Human Rights Act need to be reformed? We said no. Indeed, we questioned whether the Bill of Rights bill should proceed at all.

Later, we'll hear from two parliamentarians who were involved in that scrutiny work. Baroness Ludford is a Liberal Democrat peer in the House of Lords, and David Simmonds is the Conservative member of Parliament for Ruislip, Northwood and Pinner.

But first I want to speak to Professor Francesca Klug, one of the architects of the Human Rights Act.

Professor Klug was part of the legal team, which assisted the Government in 1998 to devise a model that gave effect to the European Convention on Human Rights in our domestic law, and she was part of the Government's task force, which oversaw the implementation of the act in its early days.

Professor Klug was awarded an OBE for her services to human rights. She's a visiting professor at the London School of Economics and Political Science, where she lectures in human rights, and she's an academic expert at Doughty Street Chambers.

Professor Klug, Francesca, you're most welcome. Can I start by asking you this: it's almost 25 years since the Human Rights Act was passed and it came into force in an era of optimism about universal human rights.

Could you indulge us in a little bit of time travel and set the scene for us, taking us back to the introduction of the Act.

Francesca: With pleasure, because it's hard to imagine it now maybe, but there was a kind of universal human rights zeitgeist in the 1990s with human rights seen as an essential ethical companion to democracy. Not just here, but in many parts of the world.

Notably, with the fall of the Berlin Wall and so-called Velvet Revolutions, which swept across Eastern Europe from the late 1980s, they were largely inspired by international human rights standards, strongly promoted by Western leaders, including our then Prime Minister, Margaret Thatcher.

Within the UK itself, there was a parallel growing awareness that we were one of very few democracies without any modern bill of rights or international human rights treaty incorporated into our law.

Interest in a domestic bill of rights, although certainly not without its critics had been growing since the late 1970s with quite a lot of all-party support for any bill of rights to be based on the European Convention on Human Rights or ECHR, which was then, largely uncontentious.

And of course, had nothing to do with the EU, but was a creature of the United Nations 1948 Universal Declaration of Human Rights.

The main logic for this was that whilst the UK Government was already bound by the ECHR, citizens were unable to access their rights under the convention in our courts only at the European Court of Human Rights all the way away in Strasbourg, yet power paradoxically, the UK, including prominent and conservative MPs, had a big hand in promoting and drafting the ECHR back in the early 1950s.

So, this is what the then Labour Government meant by bringing rights home when they introduced the Human Rights Act in 1998.

Joanna: You mentioned there that before the Act was brought in, people had to go to the court in Strasbourg to enforce their rights. Can you tell us some of the challenges that people faced protecting their rights before the Human Rights Act became part of our domestic law?

Francesca: Well, there were several Joanna. First, in the absence of a Bill of Rights, people who were not lawyers had great difficulty in knowing what their rights were at all. The ECHR was very distant to most people.

The common law, which is where most of our ancient rights reside, is judge-made law, not codified or easily accessible, meaning rights and liberties were largely found in the silence of the law. That is, you could do what was not explicitly forbidden provided you knew what that was.

Second, individual rights were only as strong and enduring as the latest legislation, regulation or common law principle allowed. So, when rights were restricted or denied, they were often very difficult, if not impossible to challenge, and the courts were effectively prohibited from reviewing acts of parliament altogether.

And third, it was only possible to challenge unfair decisions or arbitrary actions by public authorities if they were illegal or irrational, which were very high bars. You couldn't challenge laws or decisions for breaching human rights.

For example, the courts couldn't overturn the then blanket ban on gay and lesbian men and women serving in the armed forces. Something which the then Lord, Chief Justice, Lord Bingham vocally lamented.

Joanna: You became involved in developing the model for the Human Rights Act, Francesca: what were you up to at the time, and how did you get involved in this particular work?

Francesca: Well, I was a senior research fellow at King's College Law School in the mid-1990s, working on a project to assert different bills of rights models around the world.

The then Shadow Labour office team sought our help among others, to develop a model for incorporating most of the rights in the European Convention on Human Rights into UK law in the form of a Bill of Rights, but without overturning parliamentary democracy.

This was crucial. While there was a fair degree of all-party support for a bill of rights based on the ECHR, as I've said, there was almost no appetite for an American styleBill of Rights with a judicial strike down power that could overturn acts of parliament.

Our task, therefore, was to devise a model which worked with the grain of British parliamentary democracy.

Joanna: And do you think you succeeded in doing that?

Francesca: Well, I think it remains the case that the Human Rights Act does not allow acts of parliament to be overturned, so that the courts can declare that an act breaches human rights, but it's up to Government and Parliament what they do as a result.

Joanna: And there was a specific angle for us on the Joint Committee on Human Rights, wasn't there? Can you tell me about that?

Francesca: Yes, indeed. Before the Human Rights Act, there was actually no select committee on domestic human rights at all.

And precisely because the Human Rights Act maintains parliamentary sovereignty, and was intended to encourage a kind of dialogue between the executive legislature and judiciary, an all-party joint select committee, drawn from both houses was considered vital to ensure meaningful parliamentary engagement and debate, including oversight of Government implementation of human rights.

Joanna: I want to ask you a bit now about the impact of the Human Rights Act because talking about the Human Rights Act can sometimes be a bit theoretical. Can you tell us about some of the tangible successes that the Human Rights Act has brought about as a matter of practicality?

Francesca: Well, when I first set up my LSE research project in the early noughties to monitor and evaluate the Human Rights Act, we could distribute a list of the main beneficiaries in four pages of A4.

Now, several trees would have to be sacrificed, yet most people will probably only be aware of a small number of the most contentious cases. So, I'm going to focus on the less publicised examples, if I may.

Besides procedural changes, for example, to make tribunals fairer, most successful cases have generally involved dignity, fairness, or justice.

Under dignity, there are numerous examples of individuals or their families challenging their standard of care, including lack of consultation before closing residential homes, inadequate protection against risks of self-harm or suicide, arbitrary detaining autistic young people, or challenging COVID guidelines, which imposed “do not resuscitate” notices without consultation on so-called frail people.

Recent successes promoting fairness have included allowing nearly 2,000 unmarried cohabiting parents to claim bereavement benefits to help them bring up their dependent children on their own, bringing them in line with widows and widowers who have had this right for many, many years.

And regarding justice, it's actually the victims of crime rather than defendants, importantly, including women and girls who've most benefited from the positive legal obligation on the police, introduced by the Human Rights Act to both protect people from serious crime, and adequately investigate credible allegations once a crime has occurred.

Inquests have been transformed, Joanna. Before the Human Rights Act, the scope of an inquest could be very narrow. Now, there's a requirement for inquests, following deaths involving public authorities, which could involve just negligence as much as culpability to be independent, effective, and meaningfully involve next of kin.

It's these similar factors that have contributed to the establishment of the Hillsborough, Grenfell Tower and COVID-19 inquiries.

Joanna: Can I ask you this, Francesca: do you think there are any areas of the Human Rights Act that haven't worked so well?

Francesca: Well, that's a very fair question, and rather than rely on my own judgement, I'll defer to former appeal court judge, Sir Peter Gross, who at the request of Boris Johnson's Government, carried out an independent review into the Human Rights Act published in December 2020.

His overall conclusion was that the Act had generally worked well, benefited many, and fulfilled its three original objectives. He recommended retaining the Act, not repealing it, but with relatively minor, yet practical reforms.

Now, there's no doubting, there was a lamentable lack of education and information when the Human Rights Act was introduced, which is unusual, looking at the introduction of Bills of Rights or their equivalents in other countries.

Joanna: Thank you. Now, the Government has said that it wants to repeal the Human Rights Act and replace it with Bill of Rights. Bills of rights are usually associated with an increase in people's rights. What impact do you think the British Bill of Rights bill, if enacted, would have on people trying to enforce their rights?

Francesca: The Bill of Rights bill still includes the basic text of the European Convention on Human Rights. So, in that sense, it's fair to say there is little change.

However, there is far more, what could be described as micromanagement of judges' interpretation of the texts. Critics have called it a rights removal bill because there are three significant ways where it will restrict current protections.

First, the bill would introduce a new hurdle for individuals seeking to claim their rights in the courts known as a permission stage.

Now, there are already defined limits of eligibility before someone's case can be heard under the Human Rights Act, but this extra new filter requires claimants to demonstrate they have suffered a significant disadvantage, which shifts the burden onto them to demonstrate the merits of their claim before case has even been heard.

Second, there were aspects of the Human Rights Act that would be removed completely, including the interpretive power, which enables courts to read legislation so that it is compatible with human rights.

Now, this is a standard clause in Bills of Rights the world over. So, it's very surprising that a measure titled a Bill of Rights would seek to remove it.

It's actually been used quite infrequently, but common-sense benefits have included interpreting the reference to husband and wife in Tenancy Law to include same sex couples and providing equal treatment to unexpectedly bereaved women in the context of fertility treatment.

So, this interpretive power has extended crucial protections to excluded groups, and it will be taken away altogether.

Third, but perhaps most significantly, clause five of the proposed Bill of Rights prevents our courts from determining new positive obligations, the ones I previously described on public authorities, to take proactive steps to protect our human rights and even potentially, restricts the application of existing positive obligations.

Among many others, this could affect bereaved families from seeking justice for their loved ones through the most effective inquests and public inquiries I've already described, and could weaken police accountability for repeated failures to investigate violence against women and girls, affecting people like the victims of the serial Black Cab Rapist, John Worboys, who used such positive obligation to require the police to thoroughly and effectively investigate sex crimes.

Joanna: Now, the Government has said that the new Bill of Rights is an opportunity to affirm the supremacy of UK courts over the European Court of Human Rights.

But one impact of the Human Rights Act is that more human rights cases have been decided in the UK courts instead of Strasbourg, and the United Kingdom also has the lowest rate of judgments made against it in the whole Council of Europe.

Do you think the Bill of Rights would maintain that record?

Francesca: I'm afraid I don't think it will. So, Peter Gross's independent review affirm that whilst our courts have always been free (always) to diverge from ECHR case law, the Human Rights Act has reduced the number of cases which the UK lost before the European Court of Human Rights, and also, facilitated UK courts contributing to Strasbourg case law, which is actually very valuable for us.

Now, this is unlikely to continue in the same way under the new proposals. As the all-party law reform group, Justice has commented, rather than bring rights home, it sends rights back to Strasbourg. 

Joanna: And of course, if the United Kingdom was to withdraw from the European Convention and Human Rights, we would also breach other international agreements including the Good Friday Agreement. That's right, isn't it?

Francesca: Yes, that is right. It was the Attorney General, Victoria Prentis, who recently said the European Convention on Human Rights is embedded in the Good Friday Agreement.

The Justice Secretary has maintained that because there are currently no proposals to withdraw from the ECHR, the Good Friday Agreement is in fact, not affected by the Bill of Rights bill.

However, the Good Friday Agreement does commit the British Government to both incorporate the ECHR into Northern Ireland law and give individuals access to remedies for breaches of the European Convention in the domestic courts.

Now, it's very difficult to see, for all the reasons I've explained, how the Bill of Rights would not restrict the people of Northern Ireland from receiving remedies for breaches of the European Convention in their home courts in certain circumstances.

So, to sum up, a new Bill of Rights, which mandates the courts to override or ignore certain ECHR principles is indeed likely to breach the Good Friday Agreement as well as create legal confusion, not just in Northern Ireland, I should say, but in Scotland and Wales, where the ECHR is also part of the devolution settlement quite separately from the Human Rights Act, but would now apparently, be interpreted differently depending whether you're looking at this new Bill of Rights or the original devolution law.

That will cause confusion and is why the Governments of Scotland and Wales have written to the Justice Secretary defending the Human Rights Act and opposing his new measure to introduce a bill of rights.

Joanna: Well, thank you, Francesca. That's been a really interesting and very clear exposition of the difference between the Human Rights Act and the proposed Bill of Rights bill, and I'm really grateful to you for joining us today. Thank you.

[Jingles Playing]

I'm joined now by two parliamentarians who were part of the Joint Committee on Human Rights as we examined the Government's proposals for the reform of the Human Rights Act and for the Government's Bill of Rights legislation, which was introduced last year.

David Simmonds is the Conservative member of Parliament for Ruislip, Northwood and Pinner, and Baroness Sarah Ludford is a Liberal Democrat peer. She recently left our committee and is now a member of the European Affairs Committee in the House of Lords.

Hi, Sarah. Can I ask you about the Human Rights Act in general terms? In some quarters there are some rather negative perceptions of the Act. Indeed, even within Parliament, we often hear the Human Rights Act described as a block on policy, most recently with the channel crossings.

Do you think these perceptions are accurate?

Ludford: Well, no, I don't. I mean, I think the Human Rights Act is one of the best pieces of legislation of our post-war constitution. I think it was excellent that it was incorporated into domestic law in 1998.

It brought rights home and made it easier and simpler for people to get their rights respected or if not respected, then at least, to get redress for breach. And I would like to see (all Governments) regard the Human Rights Act and indeed, the European Convention on Human Rights, which inspired it as an assistance to policy development.

So, if they respect the Human Rights Act from the beginning, they're going to have less problems down the track.

Joanna: And you were still a member of the Human Rights Committee when we published our reports on the Government's proposed reforms to the Human Rights Act in the Bill of Rights bill. Do you think the Government's planned reforms would achieve what the Government say they are setting out to do?

Ludford: Well, of course, it's somewhat difficult entirely to discern what the Government wants to do.

I think that the committee and your splendid chairmanship, Joanna, produced an excellent report. And it was important that like all JCHR committee reports, it was unanimous. It was achieved by consensus from across party membership of the JCHR.

So, I think the Government ought to consider our report (I still say “our”) as carrying weight. And certainly, if they think that it's going to simplify in any way the enforcement of human rights in the UK, they are very much mistaken.

It's not only going to make it more difficult, the proposed Bill of Rights bill, whose fate we're not entirely sure of at the moment. But it would make it more complicated, more difficult, both for the courts and of course, for individuals. It puts a series of obstacles in the way of individuals enforcing their human rights.

And ironically, in a way, because we have a Government that finds the word “European” a bit toxic wherever it attaches, it would lead to more cases going to the European Court of Human Rights in Strasbourg, which is the ultimate arbiter of the European Convention on Human Rights.

So, if you want less interference by European organs in British domestic affairs, well, then surely, the last thing you want is more cases going to Strasbourg. We'd be back to where we were 25 years ago with people having to go to Strasbourg to get their rights enforced because they didn't have the channels of redress under UK domestic laws — England and Wales and Scotland, Northern Ireland. And so, it's entirely counterproductive.

And indeed, of course, we had the independent Human Rights Act review under Sir Peter Gross, and he, of course, gave evidence to the JCHR in the course of our inquiry.

And he produced an excellent exhaustive report saying “Maybe you could have one or two tweaks, but essentially, the Human Rights Act is working well. It ain't broke, no need to fix it.” And his report and that of his review team has been ignored in a frankly disgraceful way.

So, the system is working and there is no need to fiddle with it. And I'm sorry, but I have to see the attempt by Dominic Raab as ideological as I'm afraid quite a lot of the proposed legislation we're getting these days is.

Joanna: David, we've heard already from Professor Klug and from Baroness Ludford, and I think it's fair to say that both of them are fans of the Human Rights Act and not fans of the British Bill of Rights bill. Can you tell us where you stand on these issues?

David: Hi, Joanna. I'm generally a fan of the Human Rights Act, but I understand from  listening to the evidence that we heard in particular from the Justice Secretary, that the Government does have some concerns, in particular about this concept of a margin of appreciation, where in their view, sometimes, courts have gone beyond what Parliament originally intended when the legislation was passed in interpreting it for the purposes of individual cases.

And it's clear that that is something which does deserve a look. I think certainly when the committee took the evidence about that, it was something which struck me as important because we need to make sure in a parliamentary democracy that we are broadly in line in terms of how the courts are interpreting legislation, and what the nature of the political debate was about.

Joanna: What is it that you think the Government are actually trying to achieve with the British Bill of Rights, and do you think it would succeed in achieving what they’re setting out to do?

David: Bills of Rights based on the evidence we've taken about what happens in other countries that are members of the European Convention on Human Rights are generally about updating and expanding human rights legislation.

So, increasing the protections that people's human rights have, and increasing the duties and the powers of public bodies and ensuring that those rights are respected and enforced.

And it seems here, we have a difficult situation because I think the view of the Government of some in the public policy space is that the Human Rights Act actually goes beyond that.

In fact, it creates rights and duties and powers that go beyond what Parliament had actually intended. So, clearly, the origins of the concept of a Bill of Rights were to try and regularise the situation of bringing human rights law and its interpretation in the UK into line with what in many views, Parliament had originally signed up to and intended when the legislation was passed.

And it seems to me that there are a number of areas, in particular, the growth of the online world that simply were not factors to the extent they are today when legislation was passed. So, there are good reasons to begin to think about updating people's human rights to reflect that that is the case.

Joanna: One of the central aspects of the Human Rights Act is that it requires public authorities like local Government, and the police for example to act compatibly with human rights when they’re making decisions.

What impact does that have for public authorities and for people trying to enforce their rights?

Ludford: Well, I think it's had a positive effect. We've seen it in the case of violence towards women and girls, notably, in the appalling case of John Worboys who was the notorious black cab driver.

And the failings in the police investigations led to numerous victims, whereas if they'd done a good job in the first place, that might have been avoided. So, the positive obligations on the police to investigate properly, we've had positive obligations on coroners to carry out inquests.

And also, something that the JCHR has covered in the last few years, the rights of people in care homes. We found during the pandemic that obviously, there was so much distress caused to both the residents of care homes and their families, because visits were not allowed, and in many cases, unnecessarily prevented.

And so, the Human Rights Act has an impact there in obliging care homes and local authorities and other providers to ensure that the human rights of residents and families are respected.

So, this myth, sometimes the opponents of the Human Rights Act try to imply that it's somehow all airy fairy and it doesn't affect ordinary people.

Well, I think if you’re a victim of a rapist or are a person who has a family member who has died in suspicious circumstances, and you want a proper inquest and accountability, obviously, the Hillsborough, the tragedy at Hillsborough, and as I said, residents of and family of care home residents — these are all very close to home situations where the Human Rights Act has assisted people to get accountability and to get their rights respected. There’s nothing airy fairy about that.

Joanna: David, what’s your response to that question?

David: My background before entering Parliament was in local Government. I did a lot of work as an assessor on equalities impact assessments and equality standards for local Government. And this is one of the areas where there certainly seems to be a good deal of debate about the operation of human rights legislation.

And in particular, the extent to which it creates positive obligations for public bodies. And clearly, at the time when the European Convention of Human Rights first came into being, the big concern across Europe was the wholesale abuse of people's human rights by state actors that had taken place during the Second World War.

And the thinking behind it was very much, how do we protect people from a situation where the state seeks to abuse their human rights? Now, clearly the world has changed since then.

We've seen wholesale changes in all sorts of different things, including people's personal relationships, the way in which they relate to their children, the way in which their property is governed and concerned  with within the law. And so, it is important that we update that.

But clearly, the question then becomes, do public bodies have an obligation simply to respect someone's freedoms and someone's rights, or do they have a positive duty to promote those?

And if so, what might be the boundaries of such a positive duty? And we can see in the context of a local authority that has, for example, educational responsibilities, that those things will often come into conflict.

If you look at an issue like child safeguarding, I'm aware of situations where a local authority has respected the view of a child who said that they don't wish to be taken into care, they wish to remain with their family during their childhood, who has then subsequently taken legal action and said the local authority should have ignored my wishes and should have taken me into care in order to promote my wellbeing and my human rights.

Now, clearly, in that situation, the local authority has acted in good faith as best it possibly can, but there is some debate about the relative priority of those different obligations and how those would play out. And frankly, I think that is not something which is clear either in the existing legislation or in the context of the convention itself.

Joanna: During our inquiry on the Bill of Rights bill, the committee heard that the bill could leave certain people such as the victims of domestic violence or crimes such as those carried out by the serial rapist, the taxi driver, John Worboys could leave people who were victims of those sort of crimes without a route to securing justice.

Are you able to explain why some of our witnesses express those concerns and what the Government says about that, and what it wants to do about this?

David: Clearly, the question that's in dispute is whether those public bodies could have been persuaded to take action by other routes.

I think most reasonable people would've thought that if the police, for example, had received a complaint of that nature, that they would've been proactive in investigating the matter, in bringing someone to justice and bringing criminal charges where there was evidence of an offence having taken place.

And we’d be surprised that that was not the response of those public bodies initially until this matter came forward. And I think for me, having heard the evidence and the arguments on both sides of that, I do consider that to be something that is somewhat unresolved in the current legal context.

And it's unresolved because it isn't clearly possible to know after the fact whether a different approach would've resulted in the appropriate action by those public bodies. But clearly, the use of Human Rights Act legislation did enable those things to be investigated. And that is a justifiable concern.

If you were a member of the public who had a good case where you'd been a victim of a serious crime and it was not being taken sufficiently seriously, what route would you have for ensuring that justice was done?

And I think we need to get to the bottom of that issue, find out where those boundaries lie in order to understand what needs to be changed, if anything, in the legislation that we currently have.

Joanna: On a separate but very important issue, some of the people we heard evidence from expressed concern that the Bill of Rights would destabilise the Good Friday Agreement.

Can you tell us why they took that view, and looking to the other nations of the United Kingdom, what impact might the bill have on devolved Government in Scotland and Wales?

Ludford: Well, on the Good Friday Agreement, obviously, the requirement to respect the European Convention on Human Rights is written into the Good Friday Agreement, and one can absolutely appreciate why since a lot of the conflict in Northern Ireland has been one about whether and whose rights were being breached.

So, it was a very important move to embed respect for human rights in the Good Friday Agreement, and was a big achievement. So, anything that puts that at risk is, in my view, irresponsible as are other things happening around the Good Friday Agreement and the situation in Northern Ireland.

I'm not an expert in Northern Ireland affairs but I think we are all highly conscious of how delicate and sensitive the situation is. And if you pull one brick out of the wall, you risk destabilising the situation, which is the last thing that certainly any Government ought to want to do.

So, I mean, it's just a good illustration of why the observance of human rights was certainly regarded in the Good Friday Agreement 25 years ago as good government to put that in. And I would extend that across the whole of the UK, and indeed, the whole of whole of Europe.

Joanna: Your thoughts on that David? 

David: The question of its place in those kinds of agreements is very, very topical at the moment. We know that the Good Friday Agreement had within it, I suppose, two significant elements.

One was of course, the UK's membership of the European Union, and the other one was the European Convention Human Rights.

And clearly those do different things, and the process of Brexit has thrown up very significant issues which are currently being played out on the economic front that enormously impact on the way in which Northern Ireland and its place within the United Kingdom is decided.

In respect to the European Convention on Human Rights, clearly, there are, especially for those people who were caught up either directly as victims or through family members in the period known as “The Troubles” who will need to seek justice, where they would want to see that those rights which are inalienable human rights are appropriately safeguarded.

Now, clearly, in the event that the United Kingdom were to say in some way that they sought to set that aside, then that access to justice would potentially be lost. So, it is something absolutely fundamental.

Now, there's always the question, and I think the point was pushed by you, Joanna, when the Justice Secretary was in front of the committee: was there any view that the UK would ever leave the European Convention? His answer to that was no. In his view, it would not leave the convention. It was not the policy of the Government to do so.

But Parliament cannot bind its successors. So, in theory, a future parliament could take a different view on that. And the challenge that that throws up, of course, is that this doesn't merely underpin issues to do with the criminal law. It is written into a number of international agreements that are fundamentally important.

And clearly, that also includes the status of the devolved administrations, and I think a live topic at the moment. For example, its respect of the rights of children where Scotland and Wales have taken particular legal steps to protect children from physical assault.

There's no indication that the Government in England is minded to go down the same route. A previous Prime Minister, but (for) one was seemingly quite opposed to that. And therefore, we need to have a think about is it appropriate to get into a situation where people have different legal protections within the same country.

Is that appropriate? Is that right? My personal view is it's not, we should be equally ensuring that people are protected, and their rights are respected in every part of the jurisdiction.

Joanna: And I suppose it's the case also that the European Convention and Human Rights is an integral part of the devolved settlements in Scotland and Wales.

So, if we water down people's access to human rights under the convention across the UK in relation to reserved matters, and you could find yourself in a situation where people in Scotland and Wales had better rights than people in England in relation to many areas of domestic policy. Do you think that would be desirable?

David: Well, it's clearly undesirable. It's something that we see signs of already. Now, we know, for example, that [in] London, British law is seen as a very desirable place in which to go and settle things like libel claims and divorces.

So, we know internationally, people who have no particular connection to the United Kingdom choose to seek to settle those disputes using the courts in this country because they have greater powers, greater protections, through that process than they would using the law that's available to them in their own country of origin.

And the idea that you get into a situation where people will be seeking to make a claim to a protection or an obligation under the Law of Scotland or under the Law of Wales because they have a connection to those places when they are resident in England or vice versa, gives rise to an obvious set of significant legal tangles.

So, it seems to me it's one of those things where as a country, we should be seeking ideally to have our legislation in lockstep in each of those places, so we don't create a situation where either we have legal tourism (people seeking to take advantage) or indeed the opposite of people seeking to defend themselves against perfectly justifiable claims by arguing that the law in one part of the United Kingdom is lesser than the law in another part.

Joanna: In relation to human rights?

David: In relation to human rights, and of course, potentially, if we're to expand the implications and the interpretations of the Human Rights Act, that would begin to impact on a much broader level of people's lives as well.

[Music Playing]

Joanna: My thanks to all my guests today. Join me next time on Committee Corridor when we'll be considering the current state of the criminal justice system in England and Wales, and speaking to the legal commentator, Joshua Rozenberg KC.

Over on the House of Lords Podcast, the Lord Speaker, Lord McFall, is interviewing members of the House of Lords, including Lord Dobbs, who until recently, was a member of our committee.

Find all our past episodes by searching UK Parliament plus Committee Corridor. If you're enjoying our podcast, please spread the word.

I'm Joanna Cherry, MP, and this has been Committee Corridor. Thank you for listening.

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