Baroness Hale of Richmond (CB)

My Lords, I, too, thank the noble Lord, Lord Alton, for initiating this debate and for his terrific speech in introducing it. Perhaps I should declare an interest. I was privileged to be among Her Majesty’s judges sitting on the Woolsack to hear the Queen’s Speech in 1997, and I well remember the quiver of excitement with which we greeted the announcement that her Government intended to legislate to incorporate the convention into UK law. This was not, or not just, because of the intellectual excitement that a new set of legal toys would be given to us to play with; it was because we were going to be given the tools to protect the fundamental rights of some of the most vulnerable people in the country. By then, it had become apparent that UK law did not always live up to the convention standards. Others have mentioned the vital part that the UK played in setting up the Council of Europe and the convention, but some have described this as the “export theory of human rights”: foreigners needed them because they did not have them; we did not need them because we already did, so the European convention was seen as embodying all the rights which UK people already enjoyed. Unfortunately, this was not always the case. The UK was losing an average of 18 cases a year in the European court before the implementation of the Human Rights Act. Turning the convention rights into UK law meant that we judges could speak the same language and use the same concepts. Our law was enormously enriched thereby, and far fewer cases went to Strasbourg as a result and very few succeeded. I should remind your Lordships that it was the UK that invented the principle of constitutional interpretation that constitutional documents are a living tree, capable of development within its natural limits. As others have reminded us, the convention has done a great deal of good for vulnerable and disadvantaged people such as children, families, people with mental disorders and disabilities, victims of crime, and people who suffer discrimination for no good reason but because of, for example, their sexuality, their ethnicity or the colour of their skin. It was the convention which insisted that children whose parents were not married to each other were entitled to the same family relationships as children whose parents were married. It was the convention which insisted that if the state wished to remove children from their homes to protect them from abuse or neglect, the process had to be fair to everybody involved, both children and their families. It was the convention which insisted that people with mental disorders and disabilities should not be deprived of their liberty without proper safeguards and the opportunity to challenge it. It was the convention which insisted there should be no discrimination in the enjoyment of the convention rights because of a person’s sex, race, colour or other characteristic such as sexuality or disability. The survivor of a same-sex relationship should have the same right to remain in the family home as did the survivor of an opposite-sex relationship. That is the essential purpose of all human rights instruments, whether contained in international treaties such as the convention or in the written constitutions of almost every developed country in the world: to guard against the infringement of a person’s fundamental rights simply because they belong to a group which the majority does not like. As I ventured to say in a judgment given in this House when it was still the highest court in the land: “Democracy values everyone equally even if the majority does not”. To conclude, that is why it was especially shocking when this Parliament legislated to exclude a particular group of unpopular people from the protection of their human rights. Human rights are universal and should belong to everyone.