Lord Lester QC - Human Rights Lawyer HARDtalk

part of plans to save ?15 million. Outside sources coming up at nine,

but now, it is time for HARDtalk. Welcome to HARDtalk, I am Stephen

Sackur. Britain proudly claims to be the original land of liberty, King

John had his authoritarian wings clipped, by his noblemen in the

Magna Carta, eight centuries ago. And the rest, the rest is history.

But how healthy are Britain's liberties today, for the past five

decades, my guest, Lord Lester has been one of the country's foremost

illegal champions of human rights and judicial independence. After

scoring some famous victories, why is he sounding so alarmed?

Lord Lester, welcome to HARDtalk. Thank you. The past 50 years or

more, you have been fighting the good fight for human rights in the

UK hands as I have just said you had scored some famous victories, it

seems to me that yours is a story of relative success, why are you

sounding so agitated, so worried about liberties in Britain today?

Because although we have achieved much in 50 years, much that we have

achieved is threatened. And I am very worried about that and

therefore I have written a book in order to encourage young people, to

fight for what we have fought for. That means understanding the past,

it also means understanding what we have achieved and understanding what

we still need to fight. Quite you talk about the book, the book is

about five ideas, to fight for. That is really what it is for. These

ideas are human rights, equality, free speech, privacy and the rule of

law. Many people watching this programme around the world who will

think that on all of those five criteria, Britain frankly compared

to most countries in the world, scores pretty well? Well, I think

that is probably true. But it doesn't mean to say, that in

Britain, those ideas are not under threat. Because they are. For

example. I took 30 years to get the Human Rights Act. The Human Rights

Act is not like the constitutions of most democracies in the world, that

are written which allow judges to strike down laws that are

unconstitutional. Instead, we use the European Convention on human

rights which is a treaty, and we don't allow allow judges to strike

down laws, we do something more subtle, we allow the judges to

declare that Acts of Parliament are not compatible with European rights,

and it is for the government and parliament to decide what to do

about it. What is now under threat, is that David Cameron's government,

the present government have threatened in the manifesto, and I

guess a beyond, to tear up the Human Rights Act, and produce a British

bill of rights. And they have said that they will review whether we

should be party to the European Convention on human rights. That

pleases studio democracies, dictators, for example Russia. You

are racing ahead like a wild horse. I am going like a torture. They're

just take your points one by one. Very well. Let us be clear about

what you are saying. The Human Rights Act which Tony Blair's

government made law in 1998, in essence it incorporates European

Convention on human rights into British law. You were a huge fan and

one of the architects of doing that. Yes. But you just use some

prejudicial language commies said that the Cameron government is

threatening to scrappy Human Rights Act. Camera would not say it is a

threat, he would say that it is a promise. He got a decent sized

majority so it is not a threat, it is a promise? It is a promise that

is also a threat because the threat is to replace it, we don't actually

know what he said because they haven't yet come clean to what they

propose. It may be that they won't come clean. Let me put some of his

words into my mouth, he said before the election, he said "Let me put it

very clearly, we do not require instruction from judges in

Strasberg, this country will have a new British Bill of Rights, to be

passed in our Parliament and rooted in our values. May I answer your

question. By referring back to the past. When I came to the bar a very

long time ago, British rights were very poorly protected. The judges

were more executive minded than the executive. We had no fundamental

rights guaranteed in law. Free speech for example, one of the

rights I'm concerned about. Free speech is a political value but not

a legal value, I did a case many years ago about the minimised, when

the Sunday Times wanted to expose what was going on with the drug that

cause monster birth. The morning sickness drug, damaging very badly.

In those days, judges were so reactionary and blinkered, that they

made an order, stopping the Sunday Times from publishing. We had to go

to Strasbourg for a remedy. In those days, free speech was given very

little weight. The same for the privacy and liberty and all of the

other right. The government's counterargument is that in recent

years, the European Court has first of all been trying to expand its

remit, becoming a living institution, by expanding its

interpretations of the European Convention on human rights and

second of all, in particular instances, in cases of extremism and

terrorism, the court has consistently blocked, the British

government securing the interests of the British people by deporting

suspected extremists. And that according to the Cameron government

is just not acceptable. Nor is it true. Nor is it true. It depends on

your values. If you believe that it is OK to deport unpleasant and

dangerous people, to face the death penalty or torture in another

country, then that would be true. But most people certainly in this

country and across the world believe that you should not be exposed to

the death penalty or torture, and what the Strasberg courts were

saying, is that you can of course deport people, but what you can't do

is send them to face torture or the death penalty. I do not regard that

as an example, of illegal overreaching. But the British

government, in a case of Abu Qatada, one of these individuals facing

terror countries in his own country in Jordan, they did a bilateral deal

with the Jordanians in which the Jordanians promised that they would

not be using any form of abuse and torture and the British government

sent him back, against the wishes... That was quite right. What they did,

that agreement was fine. And eventually it passed muster under

the European. Convention you say eventually but the fact is, that

have the government not taken the initiative and it nor frankly dilute

its coming out Strasberg that would not have happened. No, that is an

example of a happy success. Layla the British government had enough of

these convoluted and incredibly time-consuming happy successes. They

want to route the British bill of rights in British values, and why

should they say, why should they have to look to Strasbourg? We have

got a very fine tradition dating back eight centuries of developing

our own case law and president. We are around the world are seen as a

beacon, of the defence of liberty and freedom, and we should be proud

of our British values. I am proud of the British record until recently

because until recently, parties, both main parties in government

complied with the rulings of the European Court of Human Rights, to

the letter. More than any other countries did. And I am proud of

that fact. Unfortunately when Labour was in power, the court decided, the

European courts decided, that some prisoners should have the right to

vote in Parliamentary elections. And at that time, Jack Straw who was the

Lord Chancellor decided not to comply. It was the first time that

any British government decided to do so. When David Cameron became Prime

Minister, which I supported as a Liberal Democrat, he took the same

position. He refused to place any bill, and the same is now true. The

result of that terrible example of flouting the juggernaut of the

court, was followed by Russia which promptly passed the bill in December

making the Duma, the Parliament sovereign, and saying that they can

happily flout the judgments in Strasbourg, that violates the rule.

White but in a sense that was honest, Vladimir Putin never had any

intention of allowing the European Court of having his way whether he

got the Duma to pass legislation or not. You fetch a size the importance

of the conventional the European Court, when so many of the

signatories when just to pick a phew, Turkey, Russia, Azerbaijan,

you could even point to some close at home like Hungary and Poland,

they do things which to our British perspective do not represent a

defence of liberty and good government, rule of law and

independent judicial Reece Topley that is why I called my book, five

ideas to fight for. Because the rule of law which were now talking about

has to be fought for. Even in the United Kingdom, and what I'm saying,

is that the serious threats to the rule of law even in our country. I

cite for example, the destruction of legal aid, in many parts of the

country. The blocking of access to justice, we must not be complacent.

What you are describing, may sound great, it is not a question of

fetishising it, it is a question of fighting for it. It is a question of

where did it is Eli 's and also the sense of accountability for those

who are ultimately, wanting a sense of accountability. It is not just me

sounding off about this, I am looking at the opinions of esteemed

members of the legal establishment, like law judge who was the Lord

Chief Justice of England and Wales until quite recently, he said that

the European Convention, Court of Human Rights heart "Undermining

democracy" it is judges, not Parliament now making British law

and Parliamentary sovereignty should not be ceded to a foreign court. Let

us just think about that for a moment, what do we mean about

Parliamentary sovereignty? We mean an elected dictatorship, when the

House of Commons is dominated by the government of the day, Parliamentary

sovereignty means they can do whatever they like. We have no

written constitution. We have the UK Supreme Court. It has no power to

strike down Acts of Parliament. It may give you one example, in 1968,

200,000 British Asians were expelled from Uganda and Kenny, on racial

grounds. The British government panicked, and in three days and

nights passed an emergency bill to take away the right of these British

citizens to enter the only country of citizenship. In most countries in

the world, like the United States and Canada and South Africa, the

courts would be able to say that act was unconstitutional. But in 1968 we

were not parties, we couldn't enforce the convention here, I had

to go to Strasbourg with those British Asians who are now settled

in Leicester, the point I'm trying to make, is that my notion of

democracy does not mean, that Parliament or government, either

gives us our rights or enforces our rights to the exclusion of the

courts. I believe in shared sovereignty, I believe that our

courts and our Parliament and our ministers, all have their

contributions to make. Shouldn't the balance of powers, if that is what

you are describing, it reminds me of the US system with a much clearer

definition, shouldn't that all be rooted, in the same authority? And

in this case, we are talking about Britain, which issued stew and is.

It sticks in many peoples throats that the ultimate legal authority in

Britain is deemed to be in Strasbourg? I think the prime, the

main responsibility, rights are not the gift of governance. They are not

the gift of Parliament, rights are human rights, they are in eight, in

our common humanity as human beings. Governments have responsibility to

protect those rights, so do judges and parliaments. I believe as you do

in your question is that the main responsibility for that is in

Britain. You only go to an international or European Devil when

the domestic legal organ fails, and it is very important to have that

long stop -- or European level when the domestic legal organ fails. All

37 countries allow the cases to go to Strasbourg but the British

government which has had a superb reputation in complying with

judgments even though ministers hated, has decided under Mr Cameron,

now to flout the Strasbourg judgment, even though the Strasbourg

court has been very careful to say that we are not ruling, that all

people should be able to vote, we are only saying that sum should be

able to vote but they won't do that. At the nub of your argument is a

sense that things have gone awry, in this country, and in the way that

our rule of law works. But I come back to a point that I made earlier

on. If I look at the track record and the fights that you have fought

through the British courts on everything from gender equality to

ending racial discrimination. Workers rights, a whole bunch of

things, different aspects of the human rights agenda, time after

time, you have scored victories and if we look back to the 60s, when we

began the work when homosexuality is illegal, and today, with gay

marriage the norm, Britain has come an awful long way. It has come that

distance because it courts are adaptable, because we have a very

flexible system and partly because of the centuries of confidence that

we have to ride from caselaw and precedent, from the way that the

British system works, and you seem fundamentally dissatisfied with it

and I'm still not sure why? I'm not fundamentally dissatisfied, I think

that the judges were awful when I came to the bar. They were

narrow-minded and often literal. I think the judges now are the best in

the world. I think that is terrific, a wonderful change. I think that we

have achieved great progress in Parliament, in many of the laws I

have been involved with. One equality, rights, free speech, civil

partnership, all of that our games. I'm not saying that everything the

last few years is terrible, on the contrary. I am saying that we have

achieved a lot, but a lot more should be achieved and it is for a

new generation as young as you are but even younger, to be able to take

up the bat, and defend what we have. Because what we now have is under

threat. I'm going to take the flattery about my youth and move on.

Freedom of speech is something I want to talk about. The government

is keen to find ways, to suppress not just incitement to hatred and

incitement to violence, but extremism in a broader form, vocal

active opposition to fundamental British values. Do you worry, that

such is the concern about extremism and terrorism, that we are now

encroaching seriously into freedom of expression? Absolutely, I worry

about that at the level of government and students in

universities, I believe that there is no duty to offend but there is a

right to offend. I believe that in a democracy, we not only, how values,

that by the majority permissible but those that cause offence, to a

particular section of society. You are Jewish and at the moment on the

is a big argument about whether the views that are extraordinary

critical of Israel, should be allowed when some Jewish students

deemed them to be anti-Semitic. Yes, I think that there is every right to

criticise Israel forcefully. I deplore the fact that students, not

only Jewish students but students generally these days, are asking for

safe platforms where they don't have two here views, safe rooms where

they don't have two here views. And they have a culture of no platform.

That is absurd, I'm sorry that universities allow that. Similar

with government, apparently they want to have another extremism bill.

What is extremism? For example when Nelson Mandela at the ANC was

struggling against apartheid, and people were campaigning against

apartheid, was that extremism? No. It wasn't extremism because we

supported the point of view. But you cannot have a law which bans ideas

you don't like and allows, is your ideal the American first Amendment?

Yes, although I think the first Amendment has done some rather silly

things. But in the main I am closer to the first Amendment than I am to

the extremism bill. And I think there is a great danger, talk about

risks, with the fear of terrorism, which is perfectly

legitimate, with the fallout from that, there is a great risk that we

will make it worse with our British Muslim fellow citizens by banning

ideas and driving them into opposition. Except, that the chief

legal officer for SOS racism in France, the organisation that fights

against racism, he has been reflecting on this and the degree to

which you can try to outlaw not just those who are called in to violence

but those whose extreme language encourages violence. He says "Just

because somebody is making hate peels comments without exposing the

calling for this car tax doesn't mean that the speech will lead to

physical attacks? . That is worth thinking about. Yes of course, it is

a very difficult problem, we had this problem some years ago about

Regis hatred. What happened when Tony Blair was Prime Minister, was

after the invasion of Iraq, the Labour Party was worried that

British Muslims would vote for my party and not for theirs. So they

wrote to every mosque saying dear mosque, if you vote Labour, we will

give you a blasphemy law. That was a huge mistake, it was the beginning

of a trend in race politics, which has gone on now. It was H Amend 's

mistake to do that. My view is that religious ideas must be exposed to

ridicule and criticism, like every other idea. And you cannot have a

safeguard, for the profit, Jesus or God or anything of that kind. Some

years ago, Ian Forster the novelist gave a lecture under the title, "Did

Jesus have a sense of humour?". Could the Jewish audience have a

title "Does God have a sense of humour?". And one day be will be

able to give a titled "Does the Prophet have a sense of humour?".

That must be our aim, tolerance, the spirit of liberty is the spirit that

is not sure it is right. The final question, we get to the revelations

of Edward Snowden and everything we have learnt about in Massa valence

and the balance between privacy, and collective security. Would you, be

happy to know that the state, hearing the United Kingdom is able

to take the data from your e-mailing, from your digital life,

and crunch it in supercomputers, and try to assess whether you are a risk

to the state? I am willing to put up with that if there are adequate

safeguards against the misuse of the information. The real problem is not

abstract principle, what are the effective safeguards, and we have an

independent review of terrorism, David Anderson QC, who has explained

all of this and again Parliament will face that problem pretty soon.

I'm not one of those libertarians. Post-Paris attacks, David Cameron

said that he believed that the scope and extent of electronic

surveillance has to be expanded? Yes that is true. You are not talking to

an absolutist, I can see that a strong case for the mining of bulk

data as it is called. Providing the adequate safeguards, which means

including the safeguards, judicial safeguards. That is what the battle

is going to be about. Not the abstract principle, with all of

these tricky things that I try to explore, I'm not saying that there

are clear and absolute answers. We need to ask the right questions as

we are now doing. Thank you, we have two end those questions right now,

Lord Lester thank you for being on HARDtalk. Thank you. Thank you.

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