Examination of Witnesses (Questions 60-65)
RABINDER SINGH
QC
31 OCTOBER 2006
Q60 Dr Whitehead: But the test of
proportionality, as you have discussed, is, among other things,
a fair balance being struck between, as I understand it, the rights
of the individual and the rights in the general community?
Rabinder Singh: Yes.
Q61 Dr Whitehead: But there are no
defined rights in the general community?
Rabinder Singh: Yes.
Q62 Dr Whitehead: In as much as is
that right in the general community to be assessed as a negative
right (i.e. do not interfere with the general well-being of the
community), or are the tests of a fair balance based on perhaps
positive obligations to the community and that the argument that
a government or a state may put would be that a proportionality
is the lack of that obligation being exercised as far as the general
community is concerned? Is that in any way a less practical version
of the question that John Denham put to you, which does concern,
as it were, the role that a policy-making government may play
on behalf of the general community and the rights or the obligations
that apply to that general community?
Rabinder Singh: Certainly, as
a legal matter, there does not seem to be, in practice, any difficulty
with achieving what I think lies behind your question. First of
all, as a legal matter, the protection of the rights of others
is certainly a legitimate aim. Although sometimes, for shorthand
reasons, the traditional formula used by the courts is about the
interests of the general community, it is absolutely clear in
case law that that includes, for example, protecting the rights
of other people. Secondly, it can go beyond that. The interests
of the community can include things like protecting the environment,
protecting things of a more general nature than simply protecting
other individuals where you can specifically identify other rights
that have to be balanced. I have to say, as a legal matter—I
do not want to stray into the policy of this, whether it is right
or not, but certainly as a legal matter—my understanding
at the moment is that what is relatively underdeveloped is whether
the notion of duties to the community could feature in the proportionality
exercise. As a legal matter, I think it is an interesting question,
and that certainly could be further developed. We know that from
the text of Article 10 (the freedom of expression guarantee) that
it expressly refers to duties and responsibilities, which clearly
indicates that the Convention drafters envisaged that, for example,
a newspaper or a broadcasting organisation does not have an absolute
right to freedom of expression, they have to exercise their wide
and important power of freedom of expression in a responsible
way.
Q63 Mr Clappison: Could I try you
on the same question which I put to the previous two witnesses
on the relationship between membership of the European Union and
membership of the European Convention. I think at the moment the
score is one all. I do not know if you feel tempted to try and
score a deciding goal to say whether you think this country could
remain part of the European Union and leave the European Convention.
Rabinder Singh: I am not going
to suggest that my answer is definitive by any means, but certainly
I have to say that I had always understood, as a legal matter,
that membership of the European Union today requires adherence
to the European Convention on Human Rights. That is certainly,
as I understand it, what we expect of potential new entrants,
so I think it is a matter of legal obligation.
Q64 David Howarth: You mentioned
the Osman and Z judgments. I suppose at this point
I should declare my interests as a legal academic who has written
on civil cases. Those, in fact, were tort cases?
Rabinder Singh: Yes.
Q65 David Howarth: My question comes
out of that dialogue. It is a question of the flexibility of the
entire system. One of the criticisms of the European Convention
itself is that it is virtually impossible to amend. This is unlike,
for example, the US Constitution, which is very difficult to amend
but you can still do it. It requires three-quarters of the states
to concur, not all of them. My question is: in practice is this
a problem? To what extent does the Strasbourg court, to use the
old American expression "read the election returns"
and allow the democratic voice into the way it decides cases so
that the problem of unamendability is not a real problem, or is
it actually a problem?
Rabinder Singh: Again, I can only
give a personal view, but, based on my experience, I have never
perceived that to be an actual problem in practice. In fact, I
would say that it is precisely because of the fundamental character
of the Convention, the fact that it applies to 46 diverse states,
including some of the new democracies in Eastern Europe, including
states as diverse as Italy, Spain, Ireland, which have very strong
Catholic traditions, and the Northern European states which have
very strong protestant or secular traditions. Somehow I think
the Strasbourg court has to keep all of this diverse body of peoples
and states, generally speaking, loyal to the convention system
and, in my view, it has worked extremely well in practice. One
of the reasons for that may be, as I think you suggest, that they
are very well attuned to the need to respect diverse traditions
and democratic decisions throughout the Council of Europe. Having
said that, what the Strasbourg court has always made clear is
that, at the end of the day, it is there to give, as a last resort,
a remedy to people who feel that their rights are being violated
by their own state and, it is certainly not a tame kind of court,
it will step in where it feels that certain very basic, Europe-wide
standards have been breached.
Mr Beith: Mr Singh, thank you very much
indeed for a most illuminating session. When I adjourn the joint
session in a moment, the Home Affairs Committee has a meeting,
and so they will stay in the room. We hope to resume promptly
at two o'clock, by which time both committees will need to be
quorate.
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