Balancing freedom and security – A modern British Bill of Rights", London 2006
David Cameron (Conservative)
Life in the globalised twenty-first century world presents two great challenges to governments.
The first is to protect our security.
The rise of international terrorism, mass movements of people, the transformation in communications technology which makes it easier for terrorists to plan and co-ordinate their campaign.
All of these things make it harder for governments to protect their citizens.
And the security challenge is amplified by the willingness of today's terrorists to murder innocent civilians on a vast scale, using whatever weapons they can get their hands on - and being prepared to kill themselves at the same time.
Thwarting the plans of these terrorists is an awesome responsibility, which must be the first priority for any government.
But there is a second great challenge too: protecting our liberty.
Again, technology plays a part in making the challenge tougher.
Advances in computer science, information storage and satellite monitoring systems make it easier and easier for the powerful - whether it's government departments, agencies of the state or private businesses - to keep tabs on people.
Citizens have to deal with an expanding array of ever-more complex bureaucracies that are intruding into their lives in a way that previous generations would have considered unacceptable.
And the fight against terrorism itself necessarily involves the state taking on new powers of surveillance and enforcement.
But while the relationship between individual citizens and powerful institutions may change in response to changing circumstances, it is vital that free societies do all they can to maintain people's human rights and civil liberties, not least because a free society is, in the long term, one of the best protections against terrorism and crime.
GETTING THE BALANCE RIGHT
The fundamental challenge, then, is to strike the right balance between security and liberty.
But it's hard - extremely hard - to make that crucial judgement: how much freedom should we forego in order to be safe?
At what point does the pursuit of security start to undermine the open society that we are seeking to protect, and which is also a key to our security in the long term?
On previous occasions, I have started to set out my thinking on the security challenge.
In August last year I looked at the three key areas where we need action to fight terrorism: international relations; domestic security, and community cohesion.
And in a number of speeches and articles over the past twelve months I have looked at how we should fight crime from empowering communities and social enterprises so we can truly get to grips with the causes of crime to reforming the police so they are properly enabled to carry out their principal duty: preventing crime.
In the months ahead, I will also be examining in detail the other key aspects of the fight against crime: improving the effectiveness of the courts and the CPS, and making sure that our prisons really work.
David Davis and I are fiercely determined to protect Britain's security with tough and intelligent action to fight crime and to fight terrorism.
But in doing so, we will never be casual about our freedoms.
We understand that freedom is central to the British way of life.
It is a vital part of our history and our heritage.
We feel it in our bones.
So our approach to the twin challenges of security and freedom, and to the challenge of balancing the two, is clear.
We will be the hard-nosed defenders of security and freedom.
Both are vital to our nation's well-being.
So we should be permanently vigilant.
We should never stop thinking hard about how to protect our security and freedom as our society and our circumstances change.
I want to make a constructive contribution to that debate today.
But first I'd like to assess the current Government's approach since 1997.
HYPERACTIVE ON SECURITY
Labour's approach to security is characterised by hyperactivity.
Since 1997 there have been 54 criminal justice bills.
Some changes that the Government has introduced are necessary.
We support tougher sentences, for example.
But we have seen much legislation that is at the same time authoritarian and ineffective - legislation that fails to protect our security but which in the process undermines our civil liberties.
So we objected to the ill-judged attempt to criminalise religious hatred, which would have unacceptably restrained free speech.
We were sceptical about some of the new powers for government in the Regulation of Investigatory Powers Act.
We opposed the Government's undermining of the right to trial by jury and some of the more draconian powers proposed under the Civil Contingencies Bill.
And we strongly oppose Labour's plans for ID cards.
This is a measure that fails on every count.
It would impose a burden on citizens and intrude upon their privacy.
Yet it would do little to protect them from harm.
And now, after nine years of hyperactive legislating, Tony Blair himself acknowledges that the criminal justice system in our country is not working.
The Government has tried to be tough on crime, but it has failed.
It has tried to be tough on terrorism, but its efforts have been undermined.
Ironically, Labour's attempts to tackle crime and terrorism have been undermined in part by its approach to the second challenge it has tried to address - protecting our rights and freedoms.
HUMAN RIGHTS ACT
The centrepiece of this Government's approach to freedom and civil liberty is the Human Rights Act.
The Act was passed in 1998 with clear intentions.
Since 1950, British citizens have enjoyed explicit protection of a number of specific freedoms under the European Convention on Human Rights.
Britain played a leading role in drawing up the Convention, which provides for the collective enforcement of the liberties set out in the United Nations Universal Declaration of Human Rights.
The rights set out in the Articles of the ECHR include the right to life; prohibition of torture; the right to a fair trial; the right to respect for private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and association; the right to marry, and prohibition of discrimination.
It is important today for us to understand not just the fact of Britain's participation in the ECHR, but the nature of that participation.
We signed up to the ECHR in full, with no reservations.
Other countries have signed up with reservations that permit them to override certain Articles of the ECHR.
France, notably, has preserved the right to derogate from the ECHR in times of emergency under the conditions laid down by the French Constitution.
Until the Human Rights Act was implemented in 2000, any British citizen who felt that their rights had been infringed had to take their case to the European court of Human Rights in Strasbourg - a complex and time-consuming process.
So the Human Rights Act incorporated the European Convention, in its entirety - and therefore with no reservations - into UK law.
The Act was intended, in effect, to bring the ECHR home to enable our citizens to seek protection in our courts of their civil liberties under the European Convention.
The idea was to give people a clear sense of their rights in an increasingly complicated world.
On the face of it, this seemed a logical step.
Now, six years on from the Human Rights Act, we can assess exactly what the consequences have been - and their impact on the vital challenge of balancing freedom with security.
IMPACT OF THE HRA
We should start by acknowledging that some of the direct consequences of the Human Rights Act have been positive ones.
Of the hundreds of cases that have come to court involving the HRA - some 400 in the last year alone - there have been some rulings setting important precedents that we can all welcome.
One example is the right of an elderly married couple not to be separated in different care homes.
Another is the right of the families of the deceased to be represented at coroner's inquests.
But in other respects, the Human Rights Act has made things worse.
When Tony Blair talks about the criminal justice system being tilted in favour of the criminal and away from the victim, I'm afraid he's describing, in part, the consequences of the Human Rights Act.
And when he seeks more and more new powers to tackle terrorism, it's partly because the existing powers of the state are undermined by the Human Rights Act.
THE HRA AND CRIME
There are a wide range of areas in which the Human Rights Act has made the fight against crime harder.
Some are direct; some are indirect.
One example is the Assets Recovery Agency, which was set up to seize the assets of major criminals.
The agency has been forced to spend millions of pounds fighting legal challenges brought by criminals under the Human Rights Act.
This has had bogged down cases for years, and the backlog in the courts has grown to 146 uncompleted claims.
The Director of the Agency has directly blamed the human rights "bandwagon" for thwarting its efforts.
Another example of the unintended and often perverse consequences of the Human Rights Act was the case of the convicted rapist, Anthony Rice, who was wrongly released on licence and then murdered Naomi Bryant.
The Bridges Report set up to investigate the case makes clear that one of the factors that influenced the thinking of officials in dealing with Rice was a concern that he might sue them under the Human Rights Act.
Of course, there were other elements in the case that had no connection to human rights.
And it is true that any legal challenge by Rice might well have failed.
But it remains the case that officials sought to protect themselves rather than risk defeat in the courts.
The Rice case illustrates a wider trend.
Even without actual litigation, some public bodies are now so frightened of being sued under the Human Rights Act that they try to protect themselves by making decisions that are often absurd and occasionally dangerous.
The Act is also inhibiting the ability of the police to prevent crime.
We saw this recently when the police tried to recapture foreign ex-prisoners who should have been deported and had instead gone on the run.
The obvious thing to do would have been to issue 'Wanted' posters but police forces across the country refused to do so on the grounds that it would breach the HRA.
The Association of Chief Police Officers says in its guidance to forces: "Article 8 of the Human Rights Act gives everyone the right to respect for their private and family life... and publication of photographs could be a breach of that."
According to ACPO, photographs should be released only in "exceptional circumstances", where public safety needs override the case for privacy.
Remember that these were criminals who had been convicted of very serious offences and who shouldn't even have been in the UK.
Yet the Metropolitan Police said, "We will use all the tools in our tool box to try and find them without printing their identity - that's the last recourse."
THE HRA AND TERRORISM
The Human Rights Act has a similarly damaging impact on our ability to protect our society against terrorism.
One of the most obvious ways in which our Government can help prevent terrorist outrages in Britain is to deport foreign nationals who threaten our security.
It is clear that we should have the right to take away the right to live here from those who want to do our country harm.
Yet the Government is finding it increasingly difficult to do this.
The difficulty is not caused by the Human Rights Act.
But the Human Rights Act has made the problem worse.
The key factor here is the European Court of Human Rights judgement in the Chahal case in 1996.
The court in Strasbourg ruled that the British Home Secretary cannot balance the human rights risk to an individual if they are deported against the security risk to the UK if they stay.
This applies once it is established that the person to be deported is at substantial risk of suffering torture or inhuman or degrading treatment.
It is worth reminding ourselves of the words used in that judgement:
"The activities of the individual in question, however undesirable or dangerous, cannot be a material consideration."
This European Court judgement, made in 1996 before the Human Rights Act has been used as case law in British courts since the Human Rights Act.
This has made it harder than it otherwise would have been for the Government to deport dangerous terrorists.
Home Secretary Jack Straw discovered this in the Singh and Singh case in 2000.
His judgement was that these two men, who had committed no crime under British law, were nevertheless a serious threat to our security.
But a British judge, guided by the Human Rights Act and its requirement to use ECHR jurisprudence as a precedent, ruled that the Home Secretary could not make that judgement.
The Special Immigration Appeals Commission was not happy about having to follow the ECHR jurisprudence. Mr Justice Potts, when giving the judgment, said: "law abiding citizens of the United Kingdom might reasonably feel disquiet about a state of affairs which permits international terrorists proved to be a danger to the national security to remain here".
He was not permitted to balance the security of our country against the risk to the individuals concerned if they were deported.
More recently, the deportation issue was brought into dramatic focus by the case of the Belmarsh detainees.
There is no admissible evidence that these individuals, all of them foreign nationals, have committed a crime under British law for which they can be prosecuted.
However, there is sufficient intelligence material relating to their danger to our security that a judge was persuaded, under the auspices of the Special Immigration Appeals Commission, to detain them.
In that situation, there is clearly a strong case for deportation.
But because of the interaction of the Human Rights Act and the nature of our participation in the ECHR, that is not possible.
In the specific case of the Belmarsh detainees, the Government has sought a solution through its policy of control orders.
But it has been an incredibly costly, time-consuming and complicated process.
And this is where, just as with the criminal justice system, we also need to consider the indirect impact of the Human Rights Act.
Before the Chahal case, and before the Human Rights Act, if a Home Secretary had considered a foreign national to be sufficiently dangerous, that individual could be deported without undue delay.
Today, not only can the individual not be deported.
The lengths to which the authorities have to go even to detain them are so great that many serious suspects are allowed to remain here at liberty.
Think about the message that sends to terrorists and their supporters around the world.
It is practically an invitation for terrorists and would-be terrorists to come to Britain, safe in the knowledge that whatever crime they may have committed in their home country and whatever suspicion there may be that they might be planning a terrorist attack in the UK or elsewhere they won't be sent back to their country of origin and may not even be detained, because the process is so complicated and time-consuming for the Government.
Of course I accept that each individual case needs to be judged on its merits.
And of course Britain must never endorse or collude in human rights abuse in other countries.
But a British Home Secretary must have more flexibility in making a judgement in the public interest, balancing the rights of terror suspects against the rights of British citizens.
At present the jurisprudence from cases such as Chahal prevents this happening.
And the Human Rights Act compounds the problem.
I believe it is wrong to undermine public safety - and indeed public confidence in the concept of human rights - by allowing highly dangerous criminals and terrorists to trump the rights of the people of Britain to live in security and peace.
FAILURE OF THE HRA TO PROTECT OUR RIGHTS
But while the Human Rights Act has had a number of unwelcome direct and indirect consequences for our ability to fight crime and terrorism, even in its own terms it has not actually proved to be effective in protecting fundamental rights in Britain.
It has not protected the right to trial by jury.
It did not prevent the right to free speech from being undermined in the Government's legislation on religious hatred.
WE NEED A NEW APPROACH
So any fair audit of the Human Rights Act would come to the conclusion that change is needed in order to protect both our security and freedom more effectively.
The Human Rights Act has made it harder to protect our security.
And it's done little to protect some of our liberties.
It is hampering the fight against crime and terrorism.
And it has helped to create a culture of rights without responsibilities.
Tony Blair himself recognises this.
It is why he keeps talking about reviewing the Human Rights Act and rebalancing the criminal justice system.
But the truth is, Labour got us into this mess.
So it's hard to see how they can get us out of it.
The Prime Minister seems unwilling or unable to accept the consequences of his own legislation.
We see this all the time.
Only a few weeks ago, under intense pressure following the release of dangerous foreign prisoners, Tony Blair promised Parliament:
'I think that it is now time that anybody who is convicted of an imprisonable offence and who is a foreign national is deported'.
That same day, it was pointed out to him that his pledge was impossible to meet, thanks in part to his own Human Rights Act.
This is a blind spot for Labour.
They will the ends, but they aren't prepared to will the means an entirely new approach that properly protects our security, and strikes a better balance between security and freedom.
THE PRECISE PROBLEM
In order to establish the correct principles for such an approach, we must be forensically precise in understanding the challenges we face.
In protecting our security, the key challenges are fighting crime and fighting terrorism.
For crime, the problem is quite clear.
The Human Rights Act has introduced a culture that has inhibited law enforcement and the supervision of convicted criminals.
For terrorism, it is more complicated.
The Human Rights Act makes things worse in that it obliges British courts to base their judgements on the ECHR and the case law - including Chahal - that goes with it, giving them no scope to develop their own principles.
But simply removing the Human Rights Act would not solve the problem.
We would still be left with a situation in which terrorist suspects could go to the European Court - for example to avoid deportation.
Other European countries have taken steps to protect their vital interests with reservations.
In Germany, the existence of the Basic Law - a clearly codified constitutional document - provides a different solution.
The European Court, through what is known as the "margin of appreciation", tends to defer to any clearly set out domestic constitutional doctrine.
But Britain has neither a reservation against the ECHR; nor a clearly set out constitutional doctrine, like the Germans.
So the European Court of Human Rights has nothing to go on except its own previous rulings.
Examples from elsewhere in Europe therefore point us in the right direction.
And it is a direction which helps us with the other great challenge we face: protecting our freedom.
Here too, as we have seen, the Human Rights Act is inadequate.
So I firmly believe that we need a clear articulation of citizen's rights that British people can use in British courts.
OPTIONS FOR CHANGE
What are the options open to us?
There is a case for simply abolishing the Human Rights Act and doing nothing else.
This has the advantage of simplicity.
And it would at least help us in the fight against crime.
But it would not solve the problem on terrorism.
And it has the strong disadvantage of taking a step backwards on rights and liberties.
Citizens would have to go once again to an international court to enforce their freedoms.
It would lead to a procession of cases going to the Human Rights court in Strasbourg at considerable public cost and Britain being governed in part by court judgments made in Strasbourg, with little or no reference to home-grown British law.
Another option is to abolish the Human Rights Act and pull out of the ECHR.
This also has some logical consistency.
It would address the security challenge, both in terms of crime and terrorism.
But it would have three significant disadvantages.
Yes, British citizens could still rely on ancient rights as developed over time in our Common Law and through Parliament but we have to recognise that the Common Law cannot properly protect the citizen from ministers who have the power to override it by statutory instrument.
Likewise, we would be left with little protection against a government that could at will abrogate or repeal habeas corpus or any other protection of freedom.
Thirdly, the act of leaving the ECHR would send a message to all those countries that we encouraged to sign up to it that you cannot have rights and security at the same time.
THE RIGHT APPROACH
So I believe that the time has now come for a new solution that protects liberties in this country that is home-grown and sensitive to Britain's legal inheritance that enables people to feel they have ownership of their rights and one which at the same time enables a British Home Secretary to strike a common-sense balance between civil liberties and the protection of public security.
The Conservative Party, under my leadership, is determined to provide a hard-nosed defence of security and freedom.
And I believe that the right way to do that is through a modern British Bill of Rights that also balances rights with responsibilities.
This would clearly set out people's rights, would enable those rights to be protected in British courts, and would strengthen our hand in the fight against crime and terrorism.
A MODERN BRITISH BILL OF RIGHTS
Without being too prescriptive at this stage, it is possible to outline the key elements of such a Bill.
A modern British Bill of Rights needs to define the core values which give us our identity as a free nation.
It should spell out the fundamental duties and responsibilities of people living in this country both as citizens and foreign nationals.
And it should guide the judiciary and the Government in applying human rights law when the lack of responsibility of some individuals threatens the rights of others.
It should enshrine and protect fundamental liberties such as jury trial, equality under the law and civil rights.
And it should protect the fundamental rights set out in the European Convention on Human Rights in clearer and more precise terms.
Greater clarity and precision would allow those rights to be enforced more easily and effectively in circumstances where they ought to be protected but it would become harder to extend them inappropriately as under the present law.
Greater clarity and precision in the law, as opposed to vague general principles, which can be interpreted in many different ways, is more in accordance with this country's legal tradition.
THE START OF A PROCESS
So I am today committing my Party to work towards the production of such a Bill of Rights.
There are huge difficulties and subtleties involved in drafting such a text.
It is not a process that can be rushed.
And I believe that a satisfactory outcome depends upon achieving a national consensus.
So I don't for a moment imagine that this is something that can be drafted by a few politicians in Westminster.
I shall in due course be announcing a panel of distinguished jurists and other experts who will help us with the drafting of this Bill.
I shall set out also, at that time, the process through which we hope - over a number of years - to promote public debate as the drafting proceeds, in order to achieve a lasting consensus.
A BILL BUILT TO LAST
As well as getting the content of the Bill right, there are two key questions that will need to be addressed.
The first relates to the permanence of the Bill.
It will serve its purposes better if it cannot easily be repealed.
It is often said that the British constitution could be summed up in eight words:
"Whatever the Queen enacts in Parliament is law."
So we need to examine ways of entrenching the Bill.
One of the options is the removal of powers under the Parliament Act for the House of Commons alone to amend or repeal the Bill of Rights.
By these and other means we can give the Bill of Rights a status similar to that of the German Basic Law and in so doing help restore British parliamentary supremacy as against law made elsewhere.
The second key question will be the relationship between the Bill and the European Court of Human Rights.
The existence of a clear and codified British Bill of Rights will tend to lead the European Court of Human Rights to apply the "margin of appreciation".
This means that the court in Strasbourg will tend to respect and uphold the principles laid down in the Bill of Rights whenever they can.
In other words we will be given the benefit of our own clearly stated statement of values.
So we have the prospect of an enduring British solution that can command the respect of our own people and of the Strasbourg court.
But there may still be a need to deal at times with the European Court's interpretation of the Convention - as in the Chahal case.
And so one of the challenges for our panel of jurists and legal experts will be to determine how the nature of our participation in the ECHR can be aligned with the principles and legal effect of our modern British Bill of Rights.
This is vital. As I have said before, it is not enough just to will the end, which in this case is the ability to deport potentially dangerous terrorists, it is necessary to will the means to that end.
None of this will be easy.
The protection of civil liberties is never easy.
The protection of public security is never easy.
Striking the right balance between civil liberties and public security is still more difficult.
But I believe that the time has come for this country to face that challenge.
I believe that by facing the challenge, by establishing a new landmark in our constitution and our legislation, we can make Britain a better place to live.
I also believe that a well-drafted and enduring Bill of Rights can make it easier to achieve the acceptance by every citizen in Britain of the rights of every other inhabitant of these islands.
That, in turn, can help us to promote active citizenship and to forge a renewed sense of national cohesion making a lasting contribution to the general wellbeing of our country.