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European Convention on Human Rights and UK Law |
Implications of the introduction of the ECHR into UK law
Foreword
According to press
reports on the imminent adoption of ECHR into UK law, there is
increasing support for those advocating that no Bill of Rights
judgement shall overturn a Parliamentary statute. This contention
would only be tenable if Parliament had demonstrated an ability
to assert its collective will in matters involving Natural
Justice, defined as issues where legislation
or Government policy are in apparent conflict with morality,
equity and logic.
When Gladstone offered his famous advice to Parliament in 1855: "Your business is not to govern, but it is, if you think fit, to call to account those who do", Members disposed of private means and were in no way dependent on an income from Parliament. They might generally support a party line, yet proudly exercised their right to act according to the individual conscience. By contrast, the career and even livelihood of today’s politicians are at the mercy of an exacting party machine.
This paper examines the credentials of Parliament as the guarantor of human rights in the light of experience in the campaign to eliminate discrimination in the payment of state retirement pensions.
Synopsis of a Report in the
Times
Pensions
Discrimination
Pensioner
Campaign
Pensions
Bill Amendment
Select
Committee
New Government
Conclusion
Synopsis of a Report In "The Times", 5 July 1997
Lord Lester of Herne Hill QC has won a battle for a Bill of Rights (BofR) after thirty years of sustained opposition from Governments and Parliaments. Thirty years ago, he said, things were very different and his ideas were regarded as rank heresy. Britain alone in Europe has no written constitution or BofR to enshrine the rights of the European Convention on Human Rights (ECHR).
The Lord Chancellor, Lord Irvine of Lairg QC vowed to ensure Britain led the way in championing human rights rather than being "grudgingly driven to swallow the medicine prescribed for us by the court in Strasbourg when we are found in breach of the Convention"
Adverse rulings against Britain by ECHR have changed the climate. Both Lord Chief Justice and Master of the Rolls said British citizens should be able to enforce their rights in the courts in UK rather than make a long costly trek to Strasbourg and have Britain wash its dirty linen in public. But both Thatcher and Major administrations were opposed, fearing it would give too much power to judges, leading to political considerations in their selection as in the United States.
Debate had begun in 1968 when Lord Lester wrote "Democracy and Individual Rights", drawing attention to the threats to citizens from "Parliament" among others. For the next 20 years various peers tried to legislate for a BofR but others argued " . . if judges had power to overthrow sections of Acts of Parliament (because they did not comply with a BofR) it would be contrary to British history and tradition and would draw judges into the political arena".
Now with a Labour Government and with senior judiciary dominated by judges in favour of BofR, legislation is expected this year proposing incorporation of ECHR into UK law as a first step. The key issue is whether judges will have power to strike down parliamentary statutes incompatible with the Convention, as they have in Canada (unless Parliament specifically says they cannot), or the more favoured New Zealand model where courts have no such power. "The courts would strive to interpret statutes as conforming with the Convention even when they appeared to be in breach."
John Wadham, director of Liberty, the human rights group, said: "It seems the Lord Chancellor is not going to go as far as we would . . . he seems to think Parliament should reign supreme, even when denying our human rights".
Note: As from 2nd October, 2000 the ECHR has been adopted into British legislation. It will be some time before we learn just how far this development will take the fight for rights.
The history appears in greater detail in the attached "Briefing on a Repugnant Pensions Policy". In short, legislation which British residents in many countries contend was discriminatory and hence misconceived enacted some 50 years ago, denied annual uprating to British pensioners overseas. Gradually exceptions were made until some 333,000 overseas residents (45%) now receive uprated pensions from UK.
A further 130,000 (out of a total of 190,000) in Australia and all 33,000 in New Zealand, all of whom qualify for local pensions, effectively enjoy some benefit from uprating as their frozen UK pension is made up to the higher local level. Thus payments direct or by proxies cover 496,000 or 65% of expatriates. The remainder represent just two percent of all UK state pensioners.
The burden of "uprating by proxy" is of course borne by the taxpayers in the host country.
The Social Security Committee in its Third Report distributed February 1997 commented; "Surely no one would have deliberately designed a policy of paying pensions to people living abroad intending to end up in the position we are in today. . . It is impossible to discern any pattern behind the selection of countries with whom bilateral agreements have been made providing for uprating".
The history of the campaign for pensions parity is almost identical to that for a Bill of Rights. It too began some two decades ago, and, since it denounced longstanding legislation, it too was derided as heresy by both major parties, neither of which has ever attempted to defend the discrimination in terms of logic or equity.
Pensioner strategy was to maximise all-party support while awaiting an opportunity to bring a Bill before the House. A series of Early Day Motions calling on the Government to discontinue the discrimination attracted widespread support, signatories generally exceeding 250, while many other members precluded by convention from signing EDMs expressed their support privately.
Despite there having been a probable majority in the House in sympathy with the pensioner cause, both Front Benches were opposed for materialistic party political reasons. Neither was prepared to advocate expenditure of public funds when there was no electoral advantage to be gained and when the status quo was protected by legislation, no matter how unwarranted it might be.
The sole opportunity to test the issue on the floor of the House came with the 1995 Pensions Bill, but supporters were ill-prepared and uncoordinated. The amendments eventually tabled lacked force, calling merely for discussions, yet Government business managers still took the precaution of scheduling the debate for midnight on the day when the Tory party gave its leader a vote of confidence. The debate was predictably poorly attended, partly due to the late hour or the ferment, but primarily because both Front Benches had made clear they did not wish the measure to succeed. Today, when the Whips are out and political careers are at stake, enthusiasm for moral causes withers.
Supporters of the pensioner cause argued the immorality of the policy, its total lack of logic, and its devastating effect on pensioners in countries like South Africa where there is no social security safety net. But they could elicit no response from the Minister save for the habitual argument that the country could not afford it. Equally the Shadow Minister, ignoring any entitlement to parity in a contributory scheme, dismissed the pensioner cause as being merely one of many competing claims and priorities, and declined to support it.
"When the division bells rang", a report read, " the amendments were defeated by holders of minor Government office who poured out of the bars into the Nay lobby, their minds untrammelled by a debate they had not attended". This was later portrayed by the Government as a rejection by the Parliament of the pensioner cause after measured consideration of all the issues. Much was made of the Opposition Front Bench spokesman’s affirmation that his party would not support the motions.
Parliament having proved incapable of detaching itself from the imperatives of political advantage, and Britain having no "independent and impartial tribunal established by law" to provide the "fair and public hearing" required by Article 6 of the Convention, pensioners turned as a last resort to the Social Security Committee. They hoped a Select Committee might just prove immune to Party pressure, and might conduct a thorough review before reaching a dispassionate conclusion on a matter of Natural Justice.
Only in December 1996, a hopelessly late juncture in the dying days of a Parliament, did it begin its enquiry into the Uprating of State Retirement Pensions Payable to People Resident Abroad.
Key arguments in the World Alliance of British Expatriate Pensioners (WABEP) submission were:
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As these arguments went unquestioned during their verbal evidence, pensioner representatives assumed they were accepted and would be used later for interrogating the Minister. But the then Pensions Minister Oliver Heald MP was easily able to brush off some rather ineffectual questioning into the morality of the Government position, arguing for instance "The point I am making to you is that the (pensioner representatives) who have given evidence to the Committee are saying that . . . they would continue to campaign, because they believe there is a principle here; we do not believe it is justified by the history, and that is really the issue" (Third Report, pp 65, para 246). Mr Heald’s evidence consistently demonstrated a Government position that legislation is sanctified by age and that its existence is its own vindication, without any need to justify its rationale.
The Committee lost considerable time considering the possibility of expatriate pensioner fraud whose impact, if any existed, would have been infinitesimal compared with the amounts withheld under discrimination, but failed to put to the Minister any of the pensioner key points. Also omitted was asking why the Government believed it was entitled to perpetuate discrimination in the operation of the UK state pension system, which has evolved into a classic superannuation scheme, when its own Pensions Act 1995 had specifically banned interference by Administrators in private schemes. And that same Act of course made indexation mandatory!
The Committee neglected to correct the Minister’s repeated contention that a reciprocal agreement had secured for all UK expatriates an uplift to the indexed Australian pension, inferring it must therefore include the missing indexation. But the tax funded Australian scheme contains a means test, never part of the UK system. It results in 60,000 British pensioners being excluded whose indexation must therefore remain a UK responsibility.
The structure and procedures of a Select Committee clearly do no lend themselves to the hearing of an appeal on the grounds of Natural Justice. A Committee untrained in interrogation techniques alone may question witnesses. There is no opportunity for a plaintiff to confront the respondent, indeed in the Pensions Enquiry, time constraints on Committee members required that there be two separate sessions. Though pensioners might attend the second session when the Minister was giving evidence, they had no opportunity to intervene. In the event, though the Committee failed to condemn the discrimination outright, its unease was apparent in the recommendation that the decision be removed from Government in favour of the whole House in prime time in a free vote.
Even that less than compelling conclusion is predictably ignored by the new Government in favour of yet another pensions' review. It will include ‘pensions payable abroad’, though the print is hardly dry on the Select Committee’s detailed enquiry, and its protracted timescale is incompatible with those suffering the discrimination. The stark question must be asked: how many older pensioners who have been deprived of most, will survive to benefit from legislation which might eventuate a year or more after the review is completed – if indeed it finds in favour of equity?
From the ideal of a chamber where issues of natural justice are determined by the collective conscience of Members free of any outside influence, Parliament has degenerated into an arena for feuding Front Benches motivated solely by electoral advantage. Pensioners suffering discrimination and all those seeking equity must require Britain to follow the Canadian example by empowering courts to strike down parliamentary statutes where human rights are denied.