Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witnesses (Questions 21-39)


31 OCTOBER 2006

  Q21 Mr Denham: We will move straight on, if we may, to our next witness, Jonathan Fisher QC. Mr Fisher, thank you very much indeed for joining us this morning. You are going to make a few opening remarks as well, so if you would like to introduce yourself and then go into your opening presentation, that would be very helpful.

  Jonathan Fisher: Thank you very much. I was elected to the Society of Conservative Lawyers Executive Committee as their Chairman of Research in May of 2006 and at that point initiated a programme of research into human rights issues. The daytime job that I have is as In-House Counsel with a firm of solicitors. I have spent 25 years at the independent Bar, in particular working in criminal law, and I was Standing Counsel to the Inland Revenue for 12 years, and my practice is essentially white collar crime cases. I have also become closely associated with the Conservative Liberty Forum who have published a paper that I have just written entitled A British Bill of Rights and Obligations. I believe that has made its way to you. I am very grateful to hon Members for permitting me ten minutes to make opening remarks before taking questions. There are two ideas that I would wish to present to the Committee for its consideration. First, I suggest that the European Convention is not a sufficiently sound instrument to protect human rights as we recognise them in Britain today. In some areas it is too strong and in other areas it is too weak, embodying minimum standards directed at the lowest threshold. Secondly, I suggest the Convention is a fundamentally flawed instrument because it omits any notion of civil obligation. This omission diminishes the significance of individual responsibility, which is a critical value to be nurtured in a civilised society. It also leads to a distorted recognition of individual human rights in certain paradigm situations. Dealing first with the inadequacy of protection afforded by the Convention, many of the rights are too heavily qualified for the British palate. In the absence of expressly declared human rights of a specific nature, it is all too easy for government to derogate from the broadly conceived rights which the Convention enshrines. The incorporation of the Convention into English law has not inhibited the passing of legislation which promotes the removal of the right to trial by jury in certain cases. The right to trial by jury needs to be specifically spelt out for it to be adequately protected. The Convention does not prevent the extradition of British nationals where the substantial part of the allegedly criminal conduct has occurred in Britain. The right of a person to be tried in Britain needs to be spelt out, as does his right to have evidence considered by a British court before extradition. The Convention has not inhibited government from significantly increasing police powers to require suspects to submit to compulsory interrogation. The anti-money laundering legislation requires the financial sector to report suspicious activity. Fundamental human rights such as the privilege against self-incrimination and the sanctity of legal professional privilege need to be expressly declared to secure civil liberties when legislation of this sort is contemplated. In other areas the protection afforded by the Convention is too weak. Consider the ability of the state to derogate from the right to free assembly in Article 11. Witness the inability of Mr Brian Haw to maintain his demonstration on the corner of Parliament Square. Is this not an assault on civil liberty against which the Convention has been silent? Moreover the derogation from Article 10 is sufficiently wide to enable freedom of speech to be curtailed under the new Racial and Religious Hatred Act. On a different but related point, the tension between the vague notion of respect for private and family life in Article 8 and the equally vague notion of the right to freedom of expression in Article 10 ought to be tackled by the Legislature and not by the courts. There are other examples of specific rights which need to be expressed. Privacy rights need to be secured with regard to information held by government agencies. The right to communication without interception; the protection of journalists' sources; the right to self-defence of a person's family and property; these ought to be specifically expressed. If fundamental civil liberties are to be adequately secured in the modern age, a bill of rights must be more specific than the Convention on their delineation. Today I suggest to you that Britain has the worst of both worlds because not only is the Convention inadequate to protect fundamental civil liberties, it entrenches a rights-based culture which is hopelessly unbalanced by its omission to incorporate any significant notion of civil obligation. The Convention mentions the concept of duty only in Article 10(2) where the exercise of freedom of expression "carries with it duties and responsibilities", whatever they may be. Two years before the text of the Convention was agreed, the UN adopted the Universal Declaration of Human Rights. Interestingly, there is a material difference between the two texts. Unlike the Convention, Article 29 of the Universal Declaration records that everyone has duties to the community in which alone the free and full development of his personality is possible. The American Declaration on the Rights and Duties of Man, approved in 1948, sets out nine specific obligations, including those to aid, support, educate and protect a person's minor children; to vote in popular elections; to pay taxes and to work; to obey the law and co-operate with the state with respect to social security and welfare. In recent years international awareness of the limitations of a purely rights-based approach to human rights has increased. In 1997 the InterAction Council invited the UN to proclaim a Universal Declaration of Human Responsibilities as "a common standard for all people and all nations". The text of this Universal Declaration is apposite in an age where there are real concerns that large sections of the population have become disengaged from society and when the need to foster a greater understanding and commitment to civic responsibility is recognised by the political establishment. Article 5 of this Declaration declares that every person has a responsibility to respect life, whilst the articles which follow are clearly directed to the enhancement of a civilised society in a world threatened by global warming, poverty, AIDS, drugs trafficking, people trafficking, corruption, and indeed cultural degeneration. I suggest the inclusion of civil obligations in a bill of rights and obligations would serve two important purposes. First, the inclusion of civil obligations would unambiguously declare to every British citizen the importance of individual responsibility and would serve to promote societal cohesion. It would instil in every citizen a sense of direction and responsibility which would be passed down the generations. It is trite to observe that today's children are tomorrow's responsible citizens, but there needs to be a framework in which the core values of human rights and individual obligations can be transmitted. Secondly, the incorporation of civil obligations would enable the protection of human rights to be balanced in the public interest, by allowing recognition of individual rights to be viewed contextually through a prism of individual obligations owed to society. Parliament should not be shy to grapple with the extent to which a person's conduct ought to be taken into account by the Executive when determining his entitlement to rely upon the rights set out in a bill of rights and obligations. It is interesting to note that Article 18 of the German constitution unambiguously declares that "whoever abuses his basic freedoms in order to attack the free democratic basic order forfeits these basic rights." Similarly, Article 33 of the UN Convention on the Status of Refugees makes clear that a contracting country "shall not expel or return a refugee where his life or freedom would be threatened", but Article 33(2) provides that "the benefit of this provision may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is." In point of fact, Britain does not need to go so far as the German constitution or the UN Convention on the Status of Refugees. It would be sufficient for a bill of rights and obligations to steer a middle course, for example by affording the Executive an opportunity to take into account the breach of an individual's civil obligations or his perceived threat to the country in terms of national security against other matters such as the risk and extent of the threat to that person if he or she were returned to their country of origin. This does not necessarily mean that national security interests will always trump the rights of the individuals but it does mean that the actions of the individual would be taken into account when the Executive makes its determination in the public interest. The courts would be obliged to review the legality of the Executive's decision within this framework. This change would entail the replacement of the Human Rights Act with a carefully crafted bill of rights and obligations but one which would retain the declaratory architecture and might also opt for the notion of "soft entrenchment" by amending the Parliament Acts to stipulate that any provision in the new bill of rights and obligations could not be overridden without the concurrence of the House of Lords. It would remain possible for a British citizen to petition the European Court of Rights, although the number of cases where the Court would reach a different decision would be limited. The Strasbourg Court and the European Court of Justice would give greater weight to the margin of appreciation where Britain's core values had been spelt out. Britain is obligated through its membership of the EU to "respect fundamental rights guaranteed by the European Convention on Human Rights". A British bill of rights and obligations would indeed respect these fundamental rights, even if it did not replicate them or codify the jurisprudence of the Strasbourg Court to the letter. The unsophisticated incorporation of the Convention into law has brought problems in its wake. Government made a grave error in this regard. It is high time that the error is acknowledged and lessons learnt. The solution, I suggest, lies in the enactment of a British bill of rights and obligations which would restore the balance between individual rights and individual responsibilities. The enactment of a modern bill of rights and obligations would also send a clear message to the public by affirming the core values of society and the nature of the historic relationship between the British citizen and the state. In today's fractured society that would make, I suggest, a valuable contribution of itself.

  Mr Denham: Thank you very much indeed. That was very clear.

  Q22  Mr Beith: If you have a bill of duties as well as rights can the duties be more than declaratory and, if they are more than declaratory, do they abate people's individual rights only at the point where that right is related to the failure of duty? For example, in the case of someone who is, let us say, convicted of an offence which itself is a demonstration of failure of duty, do you actually envisage litigation around a trade-off because someone appears not to have carried out a duty and therefore should have less rights in some other respect?

  Jonathan Fisher: I can deal with the point about litigation. I certainly do not envisage it being a source for direct action between individuals, plainly that is not right, I certainly see the scope for duties as being essentially declaratory but more than declaratory to this extent: that a breach of any duty is something that could be taken into account. I am not saying that it would necessarily lead to an automatic forfeit, that is not what is being advanced. What I am saying is that if you have duties and they are properly incorporated into a bill of rights and obligations, then what I am suggesting is that the Executive would be entitled to take into account a person's breach of duty when considering the issue that relates to the recognition of their rights, so to that extent it is something that goes into the equation. That is why I made the point of saying that in many cases it would not necessarily trump an individual's rights, but at the moment we cannot take them into account. The Executive should be able to take them into account, so to that extent they would be more than declaratory.

  Q23  Mr Beith: Given the standpoint from which you have looked at this, which from the beginning was one rooted in British traditions of freedom, can you really be comfortable with the Executive adding this weapon to its armoury in actually being able to threaten people in some sense with an abatement of rights for their failure to carry out duties?

  Jonathan Fisher: I do not see it as a weapon. I see it as something that goes into the melting pot, that goes into the equation that the Executive has to consider when looking at how to deal with particularly difficult situations. I repeat, in the majority of cases it is not going to make an enormous amount of difference, but there will be some cases where it might or where it would make a difference.

  Mr Winnick: I would have thought to a large extent, Mr Fisher, that duties are covered already in law. To give one example, the duty of parents to ensure their children go to school is covered. Apart from pious wishes, I must confess perhaps bias not to accept the premise of your argument, but can I get this position absolutely clear. You are saying that a future Conservative Government would replace the Human Rights Act with what you have explained to us? It would not be an addition, it would be a replacement?

  Q24  Mr Denham: It is a little unfair to ask Mr Fisher to speak on behalf of the Conservative Party, unless he has a mandate to do so.

  Jonathan Fisher: I was going to deal with that immediately. I am not speaking on behalf of the Conservative Party.

  Q25  Mr Winnick: Is it the wish of your organisation within the Conservative Party that a future Conservative Government does as you have outlined?

  Jonathan Fisher: What I am saying is this: it seems to me looking at this area that the European Convention should be replaced by a bill of rights and obligations. The bill of rights and obligations would obviously remain true to the fundamental principles espoused in the Convention, of course that must be right and that is what membership of Europe requires, but I am saying more than that. I am saying that there is a need, in order to safeguard civil liberty in this country, for a number of civil liberties/fundamental human rights that we see as dear to us in this country to be expressly spelt out, because at the moment they are not expressly spelt out, and the ability to derogate from what we have in the Convention is very wide. I am saying that it is too wide and I am also saying that whether you regard it as pious or otherwise, it is sensible and it should be, and indeed is important to incorporate within this new bill of rights a series of obligations, which has a number of advantages. First, it makes clear the core values that we regard as critically important to us as a nation and they should be, as it were, show-cased, and that is very important in saying who we are, what we stand for, and for transmitting it to the next generation. I am saying as well that that factor would be helpful and it is certainly something that should go into the melting pot if you have an individual who breaches those duties, who does not respect those values, because that fact is something which the Executive should be able to take into account when balancing the public interest in coming to a view in certain difficult cases.

  Q26  Mr Winnick: And in order to clarify the situation, if that situation arose as you have indicated you would wish to see, you have already confirmed that individuals, British citizens would be able to go to the European Court in the same way as previously? You are saying it would only be a small number of cases?

  Jonathan Fisher: Yes.

  Q27  Mr Winnick: But the whole purpose, am I not right, of including the Human Rights Act in British law is that individuals need not go abroad and it can be dealt with here? You would be advocating a situation similar to what happened previously?

  Jonathan Fisher: Yes, but with this very, very important difference, that we would have a bill of rights and indeed a bill of obligations that sets out exactly what those fundamental human rights are which our courts would be considering. So it is not back to pre-1998 because you would not take out the Convention and not replace it with anything, I am not suggesting that for one moment.

  Q28  Mr Denham: In order to try to understand for my own benefit the sort of case you are making, Mr Fisher, can I put a case to you—and you may or may not be comfortable in responding directly—some of the most controversial decisions that have involved the Human Rights Act would be the issues of travellers and planning permission where Article 8 has been prayed in aid as part of cases which we understand have a lot to do with how a local authority carries out its planning functions and so on and it is not a simple Article 8 issue. Are you saying that in the approach that you would like to take that the Executive and then the courts might take the view that if people went on to land wrongly in the first place, and be in breach of their civic responsibilities, that that would be taken into account in a court case in judging whether they should be removed from the land, because, as I understand it, at the moment how they came to be there is not a factor in the court case. Are you arguing that it should be and that is the sort of case you are talking about?

  Jonathan Fisher: I was actually talking about, as I described it, the paradigm case. I guess I was really referring to the Chahal situation but you are absolutely right, as a matter of principle you can extend this principle and, yes, the framework would cover the situation you posit. Again, I would really make this very clear that what I am advancing is that it is a factor which goes into the melting pot and you would give weight to it. There is an enormous difference between the degree of weight that you would give to the sort of breach that you are positing in the planning situation or the traveller situation and, for example, the breach of somebody else who is planning a terrorist act. So I really do not want to be misunderstood about this. I am saying that it would go into the equation but it is a matter of weight and what this would do is give the Executive the ability to weigh all relevant factors, which it does not have at the moment.

  Q29  Martin Salter: I am not as hostile to the concept of a bill of rights and obligations as David or some of my other colleagues on the Labour side, but I am slightly concerned about the language you are using and would suggest you might want to be as well. Could you just turn to paragraph 19. What on earth do you mean by "cultural degeneration"? Is this some kind of fascist sideswipe at multi-racialism, modern music or whatever? Do we need a bill of rights to protect ourselves from people like you?

  Jonathan Fisher: I accept that and I am suitably—

  Q30  Martin Salter: Would you like to amend your document now?

  Jonathan Fisher: I will amend it. I think I am referring to the sort of alienation that one sees, the concern that one comes across where people do not feel part of society. I think that is really what I am concerned about and I am linking that as well in terms of the alienation of those who do find themselves caught up in the drug culture. I am very grateful and I think the sensible course is to strike through those words.

  Q31  Martin Salter: Can I move on to the substantive argument that you make. The problem that I and some other colleagues who are relatively new to this Committee have got (who are not lawyers) is understanding the fit. We understand home affairs issues, human rights issues through our casework, through our immigration work, through the reaction of our constituents to the appalling Afghan case where we cannot understand why you can short circuit the system by hijacking a plane and apparently you are not then a threat to life and civilisation as we know it, and yet we are painstakingly taking our constituents through the legitimate asylum process and so on and so forth. There are exactly the same arguments around travellers, as the Chairman said. How on earth can it be right that they see a gate smashed open and yet the travellers do not know how they managed to get there with no crime apparently being committed, and we have actually got to concentrate on what would happen to the poor loves if they were evicted rather than what has happened to the community that they have invaded. How would this make a jot of difference in simple language that I could explain to my constituents, never mind myself?

  Jonathan Fisher: Well, in the way in which I have explained.

  Q32  Martin Salter: No, clearly not!

  Jonathan Fisher: I have tried to explain—

  Q33  Martin Salter: If we could just go into Beano mode it would really help!

  Jonathan Fisher: Alright, I will do my best.

  Bob Russell: Which part do you play?

  Q34  John Denham: The constitution is likely to be much more elevated than that.

  Jonathan Fisher: I am trying to take a sophisticated approach! Clearly if you enshrine certain basic rights then the man in the street would understand much more clearly what they are. If you tell him that he has a right to trial by jury and it is written there, if he does anything really serious he can see it. If you tell him he has a privilege against self-incrimination or he has the right to legal professional privilege, he can see it, it would be spelt out, so to that extent it does make a difference because it focuses attention much more clearly on those rights, so that is the first thing. Secondly, in terms of duties, it makes it very clear to the man on the street that he is a person who does owe certain responsibilities to his fellow man and woman. He cannot just live in isolation and his actions do have an effect on other people and he has a broader responsibility. I could, for example, scope out and flesh out the types of duties that we are talking about, and those are important for the individual, the man in the street or, as lawyers would say, the man on the Clapham omnibus, but you know what I am speaking of, and the man on the street can certainly understand that. I think the third aspect of this is as follows: you would explain to a member of the public that this approach allows the Government or the Executive a greater flexibility in taking into account a person's behaviour when considering any assertion to the exercise of fundamental rights, for example in the Chahal case the right to stay here and not be removed. In that situation I am talking obviously about the asylum situation and that is something that everybody can grasp. I am not saying—and I repeat it—that this will make an enormous difference in every case. You have to make this very clear to people. I am not saying that any breach would necessarily trump a person's individual human rights, but you can explain to the person on the street that it would be something that would be taken into account by those who govern him or her, and that it may make a difference and would make a difference in a small number of cases. It seems to me that those three points are all important points that can be readily explained to the man in the street.

  Q35  Mr Streeter: I am attracted, Mr Fisher, to the arguments that you are putting forward and I think that it would be something which would be popular and resonate with people's desire for a more commonsense approach to the issue of rights. Not least I think it would be helpful in terms of teaching school pupils about rights and obligations and it would be helpful to be able to refer to a document to say, "Here, this is what has been set out and this is what we require of you," and also in terms of citizenship classes that would be helpful. I have got a couple of reservations. I have listened very carefully to you and from the answer given to the first question from Alan Beith, I am not convinced that it is going to make that much difference in terms of the outcome of judicial cases. That is my first point and you have already answered it so I am just putting that on the table. I am not sure that it would make much difference in practice or that there would be wider advantages. My main reservation is this: would this not lead, of necessity, to the entirety of our constitution having to become a written constitution codified as some other countries have because can you really have a major part of it now coming into a bill of rights and obligations and then leaving the rest unwritten and evolving in the way that we have done it in past? Would that not be an anomaly that would lead to us having to have something thrashed out in statute?

  Jonathan Fisher: Taking your first point, it seems to me that it would make a difference to the approach of the judiciary because the approach of the judiciary is obviously conditioned. The judiciary works within the legislative framework, and so when the judiciary has to make an assessment of the legality of an executive decision it has to look at what matters the Executive can properly take into account. If, in fact, you broaden that framework and allow the Executive to take these matters into account, then it seems to me that it would make a difference to the judiciary. By the way, it just strikes me that one of the things we have seen in recent times has been a criticism coming from government of the judiciary. The one advantage of widening the framework within which the Executive makes a decision is that it would not place the judiciary in that situation, and, therefore, it seems to me that this is something that actually could and would make a difference. As to the question about the written constitution, I see exactly where you are coming from. It must be possible, it seems to me, to take out the European Convention and replace it with a much fuller instrument, which is a bill of rights and obligations, which would spell out our civil liberties and our civic obligations without having a written constitution. I am not suggesting a major rewrite of the framework of the Human Rights Act. I hope I have been careful to avoid that. I stated specifically that the architecture of the Declaration of Incompatibility is one that one could easily preserve and see the value in preserving. It is right to say that I did mention that there would have to be a change. You would have to amend the Parliament Act. For example, if there was going to be a derogation that it would be with the concurrence of the House of Lords. That, of course, is a further step that is going along the road of a written constitution, but I do not see how it necessarily leads you to the point where you say that we have to have a written constitution. If you go through our history, you could put all the documents together—you could go back to the Magna Carta, the Bill of Rights 1689, take in the Act of Settlement, look at the situation with the Irish Settlement in the 1920s, indeed, take devolution in more recent times—you could put all these statutes together and say we are coming close, we are going down the road of having a written constitution, but it does not mean to say that you have to have one. I suppose we would be taking yet another step, but to some extent we have already taken it.

  Q36  David Howarth: There is one aspect of your proposal I do not quite understand. Perhaps you could clarify it. It is the limit to which your balancing and taking into account mechanism would apply. In the present Human Rights Act there are some rights which are absolute, the right not to be tortured for instance, and there are other rights which can be balanced. Are you really saying that your taking into account and balancing duties against rights even applies to what are now absolute rights? Are you saying that the Executive might take the decision to torture someone because they have not fulfilled their duties under your list of obligations?

  Jonathan Fisher: No, this the paradigm case, is it not? It is Chahal, Chahal written large. Let us say you have got very clear evidence, you have somebody who has come here who is not a British National, he is, let us say, claiming asylum. You discover that he is seeking to perpetrate a terrorist act and, what is more, you have very clear evidence that if you send him to his country of origin he is going to be tortured. No, I am not saying that. What would happen is that you would put into the balance all of these factors and you would say, look, it is dreadful what he is doing, but, as Professor Klug says, we are a civilised society and we are not going to send somebody back who we know is going to be tortured, nor are we going to send somebody back if we know there is a high risk of them being tortured, but when you come to assess the balance there will be other cases where the evidence is not that clear or you may not have certainly that degree of clarity. What I am saying is that you could look at the balance, and you would look at all these factors in coming to your conclusion. That is not, I would suggest to you, such a shocking statement to make. If you look at the German Constitution, the German Constitution is much stronger. It talks about a forfeit. If you are in breach of your obligation, you forfeit your basic rights. I am not saying that at all. If you look at even the UN Convention on the Status of Refugees, it actually precludes a person claiming the benefit of protection: "The benefit of the present provision may not be claimed by a refugee where there are reasonable grounds for regarding as a danger..." I am not saying that either. Do not even go as far as that. What I am saying is that it is something that could be taken into account by the Executive in coming to an informed decision.

  Q37  David Howarth: Can I press you on this. The very act of balancing is a violation of the absolute rights. You cannot balance absolute rights. So, are you rejecting the distinction between absolute rights and other rights?

  Jonathan Fisher: What I am saying is that there are plainly certain rights that, when you put them into the balance, are going to weigh extremely heavily.

  Q38  David Howarth: So you are rejecting a distinction between absolute and other rights, because you cannot balance an absolute right.

  Jonathan Fisher: I am coming very close to it. I am not actually signing up to your formal rejection, but I am coming close to it, because I accept that there are certain rights that, when you put them into the melting pot, you would give very heavy weight to.

  Q39  Mr Denham: Can I move us on to another area of the discussion, to be clear about the view that you take, which is the role of the judiciary itself. Am I right in thinking that you have got no fundamental objection to the way in which the judiciary are today considering a great many more issues than they would have done 30 years ago that would have been the preserve of politicians and the Executive? Is it merely that the judiciary are being asked the wrong questions or being given the wrong issues to determine?

  Jonathan Fisher: I think that is right. I think the reality is, as I see it, that the Human Rights Act did change things. It may not be a great change, but, yes, there is a change between the balance of power between the courts and the legislature: because the fact is, and it seems to me inescapable, that the courts are concerning themselves with certain types of issues that previously they were not, which are issues that the Executive do consider, and they are forming judgments. Obviously, however hard you strive to take an objective view, there is inevitably always a subjective element. Yes, I do think the balance has changed, I do think it has swung in the direction of the judiciary and it is right that if you maintained the architecture of the Human Rights Act, in particular Section 4, then you would be adhering to the status quo that we have now, but it seems to me that the alternatives are very difficult to contemplate. I am not, for one moment, going along the road of saying the courts would have the power to strike down legislation, as they do, for example, in the States. Equally, to suggest that we should now turn the clock back and, as it were, put the judiciary back in its box is simply unrealistic.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2007
Prepared 3 May 2007