Examination of Witnesses (Questions 1-20)
PROFESSOR FRANCESCA
KLUG
31 OCTOBER 2006
Mr Denham: Good morning. Thank you very
much for coming, Professor Klug, and those of you in the public
area. I am John Denham and I chair the Home Affairs Select Committee.
I welcome you to what is in many ways an innovative event for
select committees. It is a joint inquiry being carried out by
the Home Affairs Select Committee and the Constitutional Affairs
Select Committee, so it is relatively unusual in that regard.
It is unusual in devoting a whole day to a topic that committees
might sometimes spend a number of weeks over. It is perhaps also
unusual in that we have divided today into two sessions, the morning
essentially to bring out the background to the issues that we
are looking at, and the afternoon to investigate how they are
currently being put into practice. The subject for today is the
area of human rights legislation and government policy-making.
The background to the hearing comes very much from the public
and political debate about the Human Rights Act and where we have
got to and the impact it has or has not had on public policy over
the last few years. So I hope that at the end of the day we will
be able to shed some light on those issues. Just before I welcome
the first witness today, I need in public session to ask if any
members of the Committee have any declarations of interest that
they need to record for the purposes of this inquiry.
Jeremy Wright: I need
to declare an interest as a non-practising barrister in the field
of criminal law.
Mr Clappison: I make the same declaration.
Q1 Mr Denham: Do any other Members
have any declarations? Okay, thank you very much indeed. Professor
Klug, thank you very much indeed. You have come to make the opening
presentation to us. I believe that you are going to make a brief
presentation to the Committee, so could I invite you to introduce
yourself and your background briefly and then to address the Committee,
thank you.
Professor Klug: Thank you, Mr
Denham. I am Francesca Klug and I am a Professorial Research Fellow
at the London School of Economics in the Human Rights Centre there.
I am attached to the Law School at the London School of Economics.
I was previously at King's College Law School, and while I was
there I worked on the model for incorporation of the European
Convention on Human Rights into UK law which, largely speaking,
was replicated in the Human Rights Act. Prior to that perhaps
it is fair to say that I also acted as an informal adviser to
the Labour Party when they were in Opposition on the whole bill
of rights issue. Thank you for inviting me today. I have provided
some speaker's notes which I hope you have got. It has a little
bit missing for which I apologise: you may have spotted that.
I have been asked to provide a presentation for the first part
of this session; I thought I would have 20 minutes or so to try
and answer five questions. I hope that is a helpful way of approaching
it and you will see what they are in the speaker's notes. The
first question I thought we should address is why we have the
Human Rights Act? I have to say that it is not possible to answer
that question meaningfully without going back into the long debate
about whether we should have a bill of rights for this country.
The academic in me would like to go back 200 years ago and talk
about Tom Paine and the French Revolution and I think we would
all have a lot more fun if we could do that, but I am aware of
time so I thought I would start around 1968, which is a resonant
year for me in my youth. Of course, Labour were in power then
and some of you may remember that there was a piece of legislation
that was introduced in three days called the Commonwealth Immigrants
Act which was about stopping British subjects of Asian origin
from coming to the UK in the context of what was happening in
Kenya at the time.
Q2 Mr Winnick: I voted against it!
Professor Klug: That is perfect,
thank you so much because that was the point I was going to make,
Mr Winnick, which is that across the parties there were misgivings,
sometimes about the content of the legislation but often about
the process, the fact that this could be done in three days in
the context of a media panic about immigration with no manifesto
commitment to do so. That brought up a debate which had been more
or less dormant for about 150 years, which is whether Britain
needed a bill of rights: Britain being a country which had bequeathed
bills of rights to just about every former colony and yet did
not have one itself. There was a tremendous interest in this by
some prominent Conservatives. Of course it was in this period
in the 1970s when there were other pieces of legislation also
introduced with great speed—the Prevention of Terrorism
Act was one of them—when Lord Hailsham, as we might all
recall, coined the term "elective dictatorship" to describe
the British constitutional system as he saw it, which is that
you have elections every four or five years or so, and then provided
the Government has a sufficient majority it can basically pass
any legislation it wants with very few other mechanisms of accountability.
That was what he was getting at. It is not terribly well-known
but if anyone is an expert here on the 1979 Conservative Party
manifesto you will see in it a commitment to start all-party talks
on a bill of rights. For some reason this disappeared once the
Conservatives were in power, and some may observe that, generally
speaking, bills of rights are more popular with Opposition parties
than they are with Governments, and you might say that is in the
very nature of the beast. Certainly during the long years of Conservative
Party rule the Labour Party became more interested in bills of
rights. It has to be said that the Liberal Party and subsequently
the Liberal Democratic Party is a party that has been in opposition
for a long time, taking my previous point, but it has a very long
and significant tradition of supporting a bill of rights, sometimes
as part of a written constitution, sometimes standing on its own.
So in the late 1980s, and you will all remember Charter 88 the
NGO that was formed at that time, the debate about whether this
country needs a bill of rights took off again in the context of
the Spycatcher ban and other infringements, as they were
perceived to be, on free expression. The debate took two forms:
one a discussion about content, what kind of content would a bill
of rights for Britain have, what would it look like in content?
and the other was form, how would we do it? Would it be like the
American model with the Supreme Court overturning Acts of Parliament
or would there be another way of going about having a bill of
rights? It has to be said that the front bench of the then Opposition
Labour Party took this very seriously. John Smith declared the
Labour Party in favour of some kind of bill of rights and the
concentration then was on a) content and b) form. In terms of
content, by the time Labour came into power, after much discussion,
it was settled that at least as a first stage the content of a
British bill of rights would be, broadly speaking, although not
entirely, the rights in the European Convention on Human Rights.
The reason given for that, as I understood it, was that because
the Government was already bound to comply with the judgments
of the European Court of Human Rights—indeed had been since
1953—and because individuals already had the right to petition
the European Court of Human Rights but were unable to do so swiftly
or cheaply, it made sense for the rights in the European Convention
on Human Rights to be the basis of a British bill of rights. Having
said that, there were several attempts to draft a bill of rights
that took the Convention, in order to avoid confusion, as the
starting point but suggested adding other rights, perhaps other
rights with a greater British traditional resonance, such as jury
trial, or a greater sense of surveillance issues like no ID cards,
but people have different views about these things. There was
a view that perhaps the European Convention on Human Rights should
be expanded to include certain additional rights, but there was
general agreement by those who were supporting a bill of rights
that the European Convention, just for the sake of clarity and
commonsense really, should provide the basis of it. Indeed, right
up until the Labour Party manifesto there was a commitment within
the Labour Party for a second stage. Labour would incorporate
the European Convention on Human Rights and follow it up with
a second stage bill of rights which was always understood to mean
the European Convention on Human Rights plus. For evidence of
this if you look at the Good Friday Agreement you will see within
it a commitment within Northern Ireland to consult on a bill of
rights, which again takes the European Convention on Human Rights
as a starting point but looks at what additional rights might
be included, and that process actually is on-going. There was
more dispute about what form a British bill of rights would take,
however, and greater thinking went into it. That is basically
because except among certain members of the legal profession,
and I would say perhaps to some extent the Lib Dem party, although
I do not think there was a consensus on this there either, but
other than in those areas, there was little appetite for a bill
of rights that would end the tradition of parliamentary democracy
we sometimes refer to as "parliamentary sovereignty".
In other words, there was little appetite amongst political parties
and amongst most informed people for changing the basis of our
constitution so that Parliament would no longer have the final
say on legislation. So there was considerable research and discussion
about what alternatives there might be for introducing a bill
of rights for this country which retained parliamentary democracy.
That leads me on to the second question: what can the Human Rights
Act do legally and constitutionally? The Human Rights Act—and
it has to be understood, in my view, in this way—was passed
in lieu of a bill of rights. For all the talk about "bringing
rights home"—and it is true that it has meant that
it is much easier for individuals to have their rights heard before
the courts, rights that they were already entitled to under the
European Convention on Human Rights, because the domestic courts
are now empowered by Parliament to consider the European Convention
on Human Rights in domestic cases—for all that being the
case, that was not basically the context in which the Human Rights
Act was introduced. It was introduced in lieu of a bill of rights.
It has three significant features of a bill of rights. First of
all, it is a higher law in the sense that it is drafted so that
it affects all other law and policy passed before, during or after
the Human Rights Act came into force. Secondly, although we hear
a lot about the jurisprudence of Strasbourg and the European Court
of Human Rights, in fact section 2 of the Human Rights Act was
specifically drafted to allow our courts to develop their own
jurisprudence and their own case law, under the Human Rights Act,
as you would expect from any bill of rights. As you look around
the world many bills of rights since the Second World War take
their basic content from international and regional human rights
treaties. The Universal Declaration of Human Rights provides the
blueprint for human rights thinking since the Second World War.
The European Convention on Human Rights is the regional European
manifestation of the Universal Declaration of Human Rights—it
says so in its preamble a couple of times—minus the social
and economic rights which are in the Universal Declaration. There
are a few specific bits of non-philosophical, black letter law
that the British Foreign Office had inserted into the European
Convention on Human Rights because it did not like some of the
more philosophical, broad expressions that the Universal Declaration
of Human Rights included. However, it is very common around the
world for bills of rights to be based on one treaty or another.
The point is, are the courts in a given country confined—and
indeed public officials who are bound by the bill of rights confined—to
the jurisprudence of a particular regional or international court?
Our Human Rights Act says no explicitly, that they are bound to
take account of the jurisprudence of the European Court of Human
Rights but they are not bound by it. In fact, there was an amendment
whilst the Human Rights Bill was going through, by the Conservative
Party, to tie, interestingly, our courts to the case law of the
European Court of Human Rights, and that was rejected by the Government
very specifically on the grounds that it was important that a
British jurisprudence should develop. Indeed a British jurisprudence
has developed under the Human Rights Act and this is now being
absorbed, as was intended, by the judges at the European Court
of Human Rights. There has been some attempt by some of our judges
very recently to say no, we should not go beyond the jurisprudence
of the European Court of Human Rights, and that is an on-going
debate, but that was certainly not what was intended when the
Act was passed, nor what was in it.
The third reason why you can describe the Human
Rights Act as a bill of rights is because it is based on broad
ethical values. It is not black letter law, by and large; it is
expressed as broad ethical values, which is characteristic of
all bills of rights. However, what it is not is the American or
Canadian model or German model or South African model which can
overturn Acts of Parliament. What was contained in the Human Rights
Act was what Jack Straw called the dialogue model, Jack Straw
being the Home Secretary that introduced the Human Rights Bill
into the House of Commons. It is called a dialogue model because
a role is allotted to each of the organs of state. Very briefly,
the Executive—the Government—now introduces bills
with a statement of compatibility attached to them, or otherwise;
the Government can say a Bill is not compatible too. Therefore,
within Whitehall now there is a far greater analysis of new legislation
and policy for compliance with the values in the Human Rights
Act. Parliament was envisaged to have a very definite role. Should
the courts declare any piece of legislation to be in breach of
the Human Rights Act, it is Parliament which decides how, and
whether to respond. For that reason it was always envisaged that
there would be a special select committee set up. Of course that
is in the gift of Parliament, not the Executive but if you look
at all the Hansard debates around the Human Rights Act it was
always intended that there would be a parliamentary committee
which would ensure there would be a parliamentary role in examining
policy and legislation for compliance with the Human Rights Act,
and indeed that other select committees like yourselves should
take on that role too. The courts' powers—well, this is
very interesting to explain it briefly—under the Human Rights
Act are both constrained and enlarged. They are constrained in
the sense that, as we well know, the British tradition was common
law—was judge-made—and judge-made law had very few
constraints on it. Now, judge-made or common law that relates
to the values and civil rights in the Human Rights Act has to
comply with those values which are now set down by Parliament.
That has constrained the common law. Indeed the courts, you will
recall, took upon themselves the power to strike down decisions
and subordinate legislation. After the Second World War the courts
started to develop and hugely increase their strike-down powers
of judicial review, particularly in the 1970s, on the grounds
that a decision or subordinate piece of legislation, like prison
rules for example or immigration rules, were either ultra vires
(unlawful because they went beyond the scope that was set for
them in their parent statute), or that a decision was so irrational
that no rational person could come to that decision. I have to
say the courts were very creative in how they exercised these
powers. You will well remember the kind of arguments that Michael
Howard had with the courts when he was Home Secretary, in particular
when the courts struck down the Conservative Party's regulations
for asylum seekers which restricted the benefit that could be
claimed by asylum seekers who did not claim asylum immediately
they entered the country. Very similar regulations are in force
now. Those were struck down before the Human Rights Act came into
force. So you already had judge-made law but that judge-made law
now has to operate within the terms of the Human Rights Act. In
that sense their powers are constrained. But where the courts'
powers are expanded it is because the courts can now declare Acts
of Parliament incompatible with the Human Rights Act, and of course
they did not have the power to even review primary legislation
before. This comes to the most important thing I want to say to
you. That is that it has become quite common to say that because
the courts have the power to declare Acts of Parliament incompatible
(and we all know about the Belmarsh ruling where this occurred)
that they now have a de facto strike down power and parliamentary
sovereignty has been mortally wounded if not ended, and that there
will be a constitutional crisis, it is even claimed by some, if
Parliament or Government did not follow the ruling of a court
that a primary piece of legislation was in breach of the Human
Rights Act. I put it to you that this is a misunderstanding and
it is wrong. I put it to you that before the Human Rights Act
was introduced it was stated very clearly, both in the debates
that preceded it and in Parliament itself, that the intention
of the Human Rights Act was to retain what most people would call
parliamentary sovereignty. I have Jack Straw's quote here and
let me give you the correct quote because it is not in your handout.
He said: "There may even be occasions where the judicial
committee of the House of Lords could make a declaration that
subsequently ministers propose, and Parliament accepts, should
not be accepted." The example he gave was abortion law but
he might have added foxhunting bans, gun control, election expenditure
limits, or indeed a declaration of incompatibility following the
Belmarsh ruling. I also quote a judge to develop this argument
further. Lord Hope in Shayler made a similar point when
he said that following a declaration of incompatibility, decisions
as to "whether", and how, to amend the offending legislation
are left to Parliament. So what were the possibilities after Strasbourg—
Q3 Mr Denham: I am very reluctant
to cut you short but we only have half an hour for questions from
Members. If there is one further point you want make as one of
your key points, then please do, but I would like to open it up
to questions if I can, otherwise we will run beyond time.
Professor Klug: Absolutely, that
is fair enough. Just to finish this point, it is sometimes asked
`what would happen if you did not follow a declaration of incompatibility?'
I should point out to you that I am not recommending this and
I think that the Government did absolutely the right thing in
taking note of the declaration of incompatibility and amending
the terrorism legislation following the Belmarsh ruling.
But it would have been possible to have left the legislation as
it stands and to argue it out at Strasbourg. I think personally
because of the fact that no other European country in this context
has derogated from the European Convention on Human Rights, that
the derogation from the European Convention that was required
in order to introduce the Belmarsh detention legislation
would have not passed muster at Strasbourg and would have been
overturned at Strasbourg, so I do think that it would have happened
sooner or later. But there are many other issues where Strasbourg
gives a "margin of appreciation" to national authorities.
In other words, the Court says it is better for the national authorities
to decide what is right in their country, particularly where there
are social and philosophical issues at stake, but also sometimes
national security issues where there is no European common standard.
Thus it is not the case a) that there would have been a constitutional
crisis, in my view, except people might have invented one, but
there are no legal grounds for saying it, and b) although in that
case I think the Government would have fallen foul of Strasbourg,
that is not always necessarily so. What is the case though—and
this applied before the Human Rights Act was introduced—is
that if there is a ruling from Strasbourg, particularly where
it involves the UK Government (for example, Chahal, which
you will be familiar with, the deportation issue where there are
real grounds for being concerned that an individual will experience
the death penalty or torture if deported), then of course the
UK Government is bound to follow it, unless it wishes to leave
the Council of Europe. But that situation applied before the Human
Rights Act was introduced and would continue to apply should the
Human Rights Act ever be taken off the statute book (provided
we were still within the Council of Europe). Can I just draw your
attention in closing to the handout I gave about the policy decisions
that have been taken under the Human Rights Act that have affected
people's everyday lives. And also the cases that were not successful
under the Human Rights Act, because in fact the Human Rights Act's
values, which I know Rabinder Singh will talk about more when
he talks about the rights in the Human Rights Act, are in fact
much more communitarian than it is sometimes guessed that they
are. Therefore there have been many, many cases—whether
I agree with them or not—that the Government has won under
the Human Rights Act because the Human Rights Act in the end is
about balancing the rights of the individual, in most cases, with
the needs and interests of the wider community. Thank you.
Q4 Mr Denham: Thank you very much
indeed. That is a wonderful introduction in such a short period
of time and puts it well in context. If I could open the questioning,
reviewing the history of how we came to be where we are, as you
have done, is it fair to say that actually the enactment of the
Human Right Act was just another step in this process of the judges
and the courts becoming more and more involved in taking decisions
that historically would have been regarded either the preserve
of Parliament or the preserve of the Executive. If that is the
case, to what extent are the debates and the arguments that we
have about the Human Rights Act actually debates about the fact
that there is not necessarily a settled consensus about in what
decisions judges should be involved and what decisions should
be reserved for Parliament and the Executive?
Professor Klug: I think my brief
answer would be yes and no to your questions because I think it
was the first attempt to start to provide some constitutional
clarity, and indeed a greater separation of powers than, if we
are going to be honest with ourselves, the British constitution
has landed us with. I mean you are all experts on that. I do not
need to tell you about the ways in which we have had historically
a non-separation of powers in all sorts of areas—home secretaries
sentencing and judges being legislators—so I think it was
both; a joining of the family of democracies. Let us remember
that every single country in Europe has incorporated the Convention
into their law and every democracy in the world has now either
a bill of rights or a written constitution or a treaty incorporated
into their law. I do not think there is a democracy left that
does not have one or the other.
Q5 Mr Clappison: Even the Soviet
Union—
Professor Klug: The Soviet Union
indeed did have a written constitution. It had lots of individual
duties more than individual rights in the constitution. The point
being, therefore, that although you are right to say that the
Human Rights Act does clarify what judges can and cannot do, I
do not think it necessarily increases their power for the reasons
I gave. People say constantly we do not need a bill of human rights
because we here have this common law tradition. Well, common law
is judge-made law. I think there is enormous confusion about this,
to be quite honest. The real issue is do we want a bill of rights,
do we want a set of values that defines what this country stands
for or not? Personally I see that as the heart of this debate.
Q6 Mr Denham: Just briefly, in practical
terms judges today are involved in a whole range of decisions
that they would not have been involved in 30 years ago.
Professor Klug: If you are going
to take it back 30 years ago, I would agree, yes.
Q7 Mr Streeter: I wanted to press
you a little bit, Professor, on the actual workings of the current
Act in terms of the impact it has made for your average British
citizens and litigator. We all see in our surgeries lots of people
who are going to take the local council, ourselves or anybody
to the Human Rights Court. Can you just say a few words from your
perspective as somebody who studies this on what difference it
has made in practice. I think I have just read somewhere or you
may have said it, that very few cases are brought just on human
rights alone; they may feed into other litigation cases. Can you
give us a feel for the scale and the difference it has made to
the litigator and the British citizen.
Professor Klug: It is very early
days. If I said to you the American Bill of Rights hardly had
any effect for the first 150 years and then there was the Chou
En-Lai comment about the French Revolution and it being too early
to decide whether it is effective. In six years this Act, which
really is in lieu of a bill of rights, has had the most extraordinary
scrutiny attached to it and expectations made of it. Having said
that, I think personally it has had effects far quicker and greater
than I had judged they would be by this time. This handout, this
appendix to my notes suggests to you some of the areas where the
Human Rights Act has bitten in terms of people's everyday lives,
and a lot of it actually is where statute is weak or statute misses
the point. For example, if you take disability, you have got very
good discrimination legislation being developed by the last two
Governments. It started in the early 1990s and was continued by
the current Government. However, the Disability Rights Commission
has constantly had to use the Human Rights Act to make the discrimination
rights real for people with disabilities because not being discriminated
against, or even having adjustments to your workplace, does not
really get to the point of how you are treated, what your experience
is as a human being. So, for example, there was a blanket prohibition
on lifting severely disabled people on health and safety grounds,
and the Disability Rights Commission intervened in a case involving
East Sussex County Council to the effect that, "I understand
those grounds, they are perfectly legitimate, but what it actually
means in practice is that severely disabled people can never get
out of their house unless they are going to be hoisted like luggage
up and down on a hoist." What the courts did—and this
often happens in human rights cases—is they did not say,
"Okay, we do not care any more about workers' health and
safety; we just care about the disabled people because the Human
Rights Act trumps." It is not like that. It is a framework
for policy decisions and what they said is you do not just wipe
out one group's rights because of another's. You look at issues
like how big people are, how heavy are they, how strong is the
health worker? These are the commonsense issues very often. What
is beginning to happen in some areas (although not enough), and
there is some evidence for it particularly where there has been
training, is that policy workers or on-the-ground workers—and
I was once a social worker myself so I feel able to judge how
useful this framework would be—are starting to use some
of the values in the Human Rights Act about dignity, respect,
privacy and intimacy in their practice, particularly where they
are trained. There are organisations like the British Institute
of Human Rights doing just that, but it is very patchy. Of course,
we are going to have a Commission for Equality and Human Rights
in a year and part of its duties will be to clarify these principles
and start to turn them into reality. I suggest to you that if
you read this handout you will get further examples.
Q8 Mrs Dean: Does the Human Rights
Act sufficiently protect the rights of victims? If not, what needs
to be done to ensure that the human rights of victims and witnesses
are protected?
Professor Klug: That is an excellent
question and I wrote a piece about it, and I really enjoyed doing
this, which traced all the rights for victims, as you use the
term.[1]
I think you mean victims of crime because behind the whole of
human rights thinking is the idea that people can be victims of
different kinds of violations. The European Court of Human Rights
fantastically—and I think this shows the strength of human
rights thinking—has actually used the right to a fair trial
for defendants to say that because this is about fairness and
justice, within that right there are also rights for victims and
witnesses, and those are starting to find their way into our law.
I can certainly ensure that you are circulated with my work on
this if you would like to see that. I think what there is not
is a broad appreciation of this at all and the absence of a Commission
or any other significant leadership on this has begun to show
its effects. We have got the whole debate about what happened
with the tragic case of Naomi Bryant killed by Anthony Rice, who
was let out of prison only to go on to murder again. In my notes
I go through what I think was involved in that case, which seemed
to include many other issues beside the Human Rights Act. But
what came out from the Chief Inspector of Probation, Mr Bridges',
review of that case is that there was not sufficient appreciation
that the Human Rights Act under Article 2 of the European Convention
puts a positive obligation on public authorities to protect people's
right to life. There is absolutely, and I really mean it, no reason
ever that the rights of a defendant or a prisoner should ever
trump protection of the public such that a dangerous prisoner
would be let out of prison. It is inconceivable that a correct
interpretation of the Human Rights Act could lead to that, but
there is a lack of appreciation of a positive obligation to protect
life under the Human Rights Act. Liberty, interestingly, are now
taking the case of Naomi Bryant's mother. They have begun litigation,
they have just lodged papers, but because they have also managed
to win an inquest into the case using the Human Rights Act they
are holding fire on the case. But the point they are trying to
make by taking this case is to say that the Parole Board and Probation
Service have an obligation to protect people's right to life,
and the calamity of errors in that case, reading the report, and
I do not know any more than the report—
Q9 Mr Denham: We had better leave aside
the detail of it if it is going to be sub judice.
Professor Klug: It is not, I don't
think—
Q10 Mr Denham: Not being a lawyer,
amongst lawyers—
Professor Klug: I am reporting
from the actual report itself from the probation officer which
showed, for example, just to say this, that the Parole Board were
not sufficiently told of the past offences of Mr Rice. That is
arguably prima facie—and you have to make the case
and win it—a breach of or negligence under the Human Rights
Act in terms of a positive obligation to protect people's right
to life.
Q11 Gwyn Prosser: Professor Klug,
I am very sad that we did not have the opportunity to listen to
the introduction starting with Tom Paine and I am not encouraging
you to do so, but in his Declaration he talked about rights, the
rights of man, the rights of humanity, and he also talked about
the duties which might balance that.
Professor Klug: Absolutely.
Q12 Gwyn Prosser: There is very little
mention of duties in our Act. Do you think it is feasible and
appropriate that our Act should be amended to bring into account
that other side of the argument?
Professor Klug: Not everyone would
agree with me but I would have favoured (and in fact did encourage
but lost my argument) a preamble that would have tied the values
in the Human Rights Act back to the Universal Declaration of Human
Rights, from where they really come. In the Universal Declaration
of Human Rights, Article 29 talks about duties of the individual
to the community to which they belong. The difference between
the thinking now and the thinking of the Enlightenment, if I can
say this very quickly, is that after the Second World War there
was a greater appreciation that we are not isolated individuals,
that we live in communities, and that unless these communities
survive and flourish our individual rights are of naught and I
would have liked that in a preamble. There is a problem if you
make duties enforceable. First of all, a lot of criminal law,
and indeed civil law, is already about the duties of the individual.
I think one should not lose sight of the fact that bills of rights
are about saying that you have got millions of duties in law but
you also have certain fundamental rights. Secondly, there is a
danger of becoming truly litigious because you start presumably
enforcing duties from one individual against another, a sort of
Ena Sharples case law, a neighbour looking through the curtain
at you; "my right to privacy is being breached", so
there are dangers there. I would have preferred it to have been
in a preamble which would have helped the interpretation and the
greater understanding of the values of the Human Rights Act. That
could still be done. I still think there is a case to do what
Labour was originally going to do, which was to consult on what
you would want to build onto the Human Rights Act, to perhaps
turn it more into a British bill of rights, because the biggest
problem with the Human Rights Act, in my view, is that there was
no consultation before it was introduced.
Q13 Martin Salter: Professor, those
of us who deal with a substantial number of immigration cases
will be aware that the Human Rights Act has some impact, and of
course not even a skilled solicitor but a semi-trained solicitor
will take a client right the way through the whole gamut of options
available to them, which some of us find very frustrating when
the case is clearly going nowhere and it is obvious from the start
of the process. Effectively human rights legislation is there
and it is introducing another tier that needs to be addressed
and gumming up an already gummed-up system, to put it kindly.
In your useful Q&A at the back here you make reference to
some of the apocryphal stories around about the Human Rights Act
and its impact on asylum seekers. I am just interested in evidence
that this Committee received a few years ago from Martin Howe
QC who actually argued that the UK should withdraw from the European
Convention on Human Rights and not re-enter unless the Convention
is revised, to take better account of the need to tackle terrorism,
illegal immigration and other matters. As an alternative the UK
could withdraw from the Convention and then re-adhere to it after
a short period, attaching reservations under Article 57. Is that
in any way a way forward that holds water if Parliament is so
minded to go down that road?
Professor Klug: Obviously we could
withdraw from the European Convention on Human Rights. We are
still a sovereign state and that power exists and no-one is going
to invade us if we do that. However, I think it would be an extraordinary
thing to do, particularly as Britain and Winston Churchill were
such champions of the Convention in the first place. I think it
would be inconceivable to the rest of the world—and I do
not want to stray into other territory—because we fight
wars in the name of democracy and human rights that we would then
disown probably the most successful human rights treaty in the
world. Of course there are problems with its implementation and
I think, frankly, these are issues that governments need to face
together. They need to be debating this in the Council of Europe
if they are finding that the way the European Convention on Human
Rights is being interpreted is making it impossible to carry out
what they see to be fair programmes. What I think is so interesting,
if I can say this, is things have moved on because for the first
time ever we now have an all-party consensus that we need some
kind of bill of rights. Accepting that the Human Rights Act is
a bill of rights by any other name, we now have an all-party consensus.
What one has to say is what are bills of rights for and what are
the other possibilities? If you have a bill of rights you will
have people who have no other remedy trying to use it. Because
asylum seekers or immigrants often have no other remedy, of course
they will try to use it. The only way you could continue with
a bill of rights that did not involve that would be a bill of
rights which said that anyone who does not have full British citizenship
cannot make any claims under the bill of rights. That does not
even apply in the United States of America. It does not apply
anywhere in the world which has a bill of rights, so I think it
is taking us to places that this country does not want to go.
I think human rights is what this country stands for. I think
it is what we have exported to the world, which is an appreciation
of certain fundamental values. There is no question that if you
are a citizen you have many more rights, including under the European
Convention actually, but there are certain basic rights like whether
you will be locked up or not, tortured or not, that have to apply
to everyone. If we go abroad we would want them to apply to us.
Every time a British national is in prison abroad and we do not
like the way they are being treated (and we do not know if they
are innocent or guilty, let us be honest) we do know that they
should have certain fundamental rights, whatever they have done.
Surely this is who we are, and we have to learn there are no ways
around this. There really are no ways around this. What surely
we do not want to do—and in the end it is a political judgment
and you are a politician, I am not—in my view I cannot believe
that this country wants to disown itself from these values that
we have had such an important role in history in shaping.
Q14 Mr Beith: I just wanted to return
briefly to the idea that some people put forward that you could
incorporate duties not merely in some declaratory way but in way
which made them justiceable. Have you looked at this? Do you envisage
a situation in which if a person fails to carry out a duty they
are either liable to punishment or to the abatement of another
human right? To take an extreme case, if you did not keep your
garden tidy and contribute to the area you might lose a bit of
your free speech. Can you envisage any way in which we can do
that?
Professor Klug: People have envisaged
this before. The Soviet constitution, if we have a look at it,
was partly devised with that approach in mind. I think this is
a confusing and confused debate. I think it is very important
to bring out—and in fact I wrote a book about it and I have
even been told off by some of my human rights and civil liberties
friends for doing so—the point that it is absolute nonsense
to talk about a society based on human rights in which individuals
do not have responsibilities to each other. It is unachievable
and people do not mean it. People who say they believe in human
rights and do not think that human beings have responsibilities
to each other, and indeed to the wider community, do not actually
mean they believe in human rights. What they really mean is they
want to be free to do whatever they want. That is another debate
and another discourse. It is legitimate but it is a different
one. I think this issue is hugely important but I have yet to
see how to achieve the end, and I agree with you that we need
to look at the issue of duties within a bill of rights.
Q15 Mr Beith: I did not state a view;
I asked whether it is possible.
Professor Klug: I understand.
I have not got a closed mind but I do not see how you do it. Let
me put it like this: within each right there are limitations and
I know Rabinder Singh will be talking about this more. Their trajectory
is from the article in the Universal Declaration of Human Rights
of which I spoke. That is the root of them; the duties of the
individuals to the community in which they live. In the same article
in the Universal Declaration it talks about the legitimate limitations
on rights. Those limitations on rights tell you that if you kill
someone, you need to be locked up. If you are contributing to
public disorder, you need to accept that you are not going to
have a right to demonstrate on that occasion. What they do not
do is say there are the deserving of rights, there are the non-deserving
of rights for life, for good: that we are going to categorise
people into these two types and this lot get them and these do
not, because that is of course to defy the very concept of human
rights which is that you are born with them. It is not that you
only have them provided you act responsibly but that you only
lose them to the extent that it is necessary to prevent the harm
of your irresponsible behaviour and not more than that, which
is why even prisoners have certain rights, for example to receive
letters, to talk to their lawyers in private, et cetera, but they
do not have the right to walk out of prison. I think that is the
framework. Within that if somebody can envisage a way to have
duties that are enforceable rather than declaratory—and
I am in favour of declaratory responsibilities in a preamble—then
let us look at it, but I have not heard how. I would say this
finally: two states are having this debate now in Australia quite
avidly because again they have had one government in power for
a long time and there are issues about accountability that are
raised. They have a constitution and they have a few rights in
the constitution and they have a Human Rights Commission so they
have some sense of rights, but they have very few constitutional
rights, and now one territory and one state in Australia (their
geographical make-up is very complicated for me) have introduced
a Human Rights Act absolutely modelled on ours because they looked
around the world and thought ours was the best from their point
of view. One of them, I think it is Victoria, talks about a charter
of human rights and responsibilities. Have a look at it but my
understanding of it is that the responsibilities are declaratory.
They are to make sense of the limits on the rights which are already
there which is the legally enforceable element of, if you like,
duties; putting limits on rights rather than saying in a bill
of rights if you do not work or if you do not keep your hedges
neat you are not going to be allowed into the community centre
at the end of the road. I do not think personally that is much
of a vision but I stand to be persuaded.
Q16 Mr Benyon: You said earlier that
there never need be the circumstance where the rights of a criminal
supersede the rights of a victim. I am sorry to apply a tabloid
simplicity to this but in the circumstances, for example, of an
Afghan who is prepared to use an act of terror to hijack an aeroplane
to get to this country and the Human Rights Act prevents the Government
protecting the citizens of this country by keeping these people
in our community, surely that is a circumstance where the rights
of potential victims are superseded by the rights of a criminal?
Professor Klug: I do not know
how long we have got but, first of all, in terms of what I said
earlier what I actually said is that the Human Rights Act could
never legitimately be used to release from prison early someone
who is a danger to others. For whatever reasons, Rice was released,
and it is pretty clear if you read the report, in my view, that
it was a real mess, a cock-up if you like, it cannot be legitimate.
In fact, there is a letter which was sent by the Chief Inspector
of Probation, who wrote the report into Anthony Rice, to the Joint
Committee on Human Rights and it was distributed yesterday in
which he said there was a "huge distortion of our findings
when some newspapers said that Rice was released in order to meet
his human rights." I was referring to that case, that situation.
The issue you are referring to, and again there has been an enormous
amount of confusion about this and I do not pretend to be absolutely
expert on it but my understanding is first of all most of them
did go to prison, if not all of them. There was a technical issue
about the direction to the jury in their trial that meant that
some of them did not serve their full sentence. That had literally
nothing to do with the Human Rights Act. The only way the Human
Rights Act came into the Afghan case was the European Convention
on Human Rights/European Court of Human Rights interpretation
of Article 3 that you cannot send people back to torture. So it
was not about their imprisonment, which they had; it was about
whether you could send them back to Afghanistan. As I said to
you earlier, that is a ruling that was made before the Human Rights
Act came into force and would still apply. May I just say this:
the Government is saying we want to be able to take into account
the needs of the community/the people in exercising Article 3,
and in situations where there is a threat to national security
we want to balance that against the concerns or the real risk
that this person will be tortured. In the Afghan case nobody,
not the Government, not the prosecution, was suggesting that the
Afghans were a risk to the national security of people here, nobody
was suggesting that. So the issue was, frankly, whether they should
be sent back when there was significant evidence that the Taliban
would have gone for these people who sought our refuge because
they were refugees from that regime. That was the issue at stake;
it really was. I suspect that everybody in this room, and I am
making huge assumptions here (and they did serve their time, not
all of their time for all of them, but that was because of a technical
issue and there is no question they should not have gone to prison)
is hugely motivated by the highest of ethics and no-one here could
have lived with themselves in reality if they had been sent back
and they were shot by the Taliban. These are the very difficult
issues that we are confronting in the world that we are in now,
and whether we have a Human Rights Act or not we will still be
confronting them.
Q17 Mr Clappison: A few moments ago
you said in response to Martin Salter that we could leave the
European Convention if we wanted to. I think in your words you
said it would be inconceivable but you said that the sky would
not fall in.
Professor Klug: I said that we
would not be invaded.
Q18 Mr Clappison: We would not be
invaded, that is it. Could we remain members of the European Union
if we left the Convention?
Professor Klug: No.
Q19 Mr Clappison: Why not?
Professor Klug: Because it is
a requirement now of the European Union that you ratify the Convention.
You do not have to incorporate it into your laws, as we have done
with the Human Rights Act, but you do have to ratify the European
Convention on Human Rights to be a member of the EU. By the way,
there are 46 members of the Council of Europe and they have all
incorporated the European Convention on Human Rights, let alone
ratified it. You have to have ratified it which is the situation
we were in before the Human Rights Act, and it is a requirement
of the EU. You will have to take it up with them, I cannot account
for this.
Q20 Mr Clappison: One final very
brief question: in your opinion do you think that the Human Rights
Act has proved to be popular with the public or not? Yes or no?
Professor Klug: If you take your
judgement of popularity from The Sun and the Mail,
clearly not. If you look at the opinion poll that I quoted there
in your note, 62% think it is a very good thing that we have rights
in our law. I just gave the most recent YouGov survey. Every single
opinion poll, by the way, on bills of rights has the vast majority
in favour, and if you read the papers that is surprising with
the apocryphal stories that we read.
Mr Denham: Thank you very much indeed.
That has been an excellent opening session.
1 This article is published in Reconcilable Rights?
Analysing the tension between victims and defendants, ed.
Cape, LAG 2004. Available on the website of the Legal Action Group
at: http://www.lag.org.uk/Templates/System/Publications.asp?NodeID=90735&Mode=display Back
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