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CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1703-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE and HOME AFFAIRS COMMITTEE
HUMAN RIGHTS LEGISLATION AND GOVERNMENT POLICY-MAKING
Tuesday 31 October 2006 PROFESSOR FRANCESCA KLUG Evidence heard in Public Questions 1 - 65
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee and Home Affairs Committee on Tuesday 31 October 2006 Members present Mr Alan Beith Mr Richard Benyon James Brokenshire Ms Karen Buck Mr James Clappison Mrs Ann Cryer Mrs Janet Dean Mr John Denham Mrs Siān C James David Howarth Gwyn Prosser Bob Russell Martin Salter Keith Vaz Dr Alan Whitehead Mr David Winnick Jeremy Wright
Mr John Denham was called to the Chair
________________ Witness: Professor Francesca Klug, LSE Human Rights Centre, gave evidence.
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 virus (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 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: "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 give 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. 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 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 they are 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, sent 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. Witness: Jonathan Fisher QC, Head of Research, Society of Conservative Lawyers, gave evidence. 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. Q40 Mr Denham: To go a bit further along that line though, the implication of your proposals is that the problem we have is that the judiciary are being asked the wrong questions; they are not able to take into account a sufficiently wide range of factors, including the extent to which the individual contributed to their own misfortune. It is possible, is it not, to argue that where we are is actually for a slightly different reason, and that is that a culture has grown up in the judiciary, and in the legal system in general, which sees rights in quite a different way to the way in which rights are understood in popular culture and probably in most parliamentary discussions and that, actually, there is nothing inevitable about some of the more controversial interpretations that have been made under the Human Rights Act had the culture in the legal world been more closely aligned with the popular and political culture. Is that a reasonable observation? Therefore, we would not need to change the law to do this, we would just need to address why it is we have the type of judiciary we do, why it is we have the type of legal establishment that we do. Jonathan Fisher: I see that. It is a question, if I may say, that perhaps will be more usefully answered by a member of the senior judiciary. I am sure that the answer you will get will be far more useful to you than the answer I will give you. I certainly would not, for my part, go down the road of seeking to constrict the judiciary. If you look at it as a purely intellectual exercise, and I am not suggesting for one moment that this would happen, as if anything would, in this country, but we can all posit scenarios where the judiciary may wish to dig their heels in, as it were, to use the vernacular, but it just seems to me that for where we are at at the moment the proposal that I am putting forward would not materially change matters. Q41 Mr Clappison: Could I put to you the same question which I put to Professor Klug. Is it your opinion that this country could resign from the European Convention on Human Rights and remain a Member of the European Union? Obviously, the opposite does not need to be the case, you can be a member without being a member of the European Union, but can you stay in European Union and resign from the Convention? Jonathan Fisher: It seems to me that you can, but I will say immediately, I am not a constitutional lawyer and there are many far more learned than me, including Professor Klug. Article 6 of our European Union Treaty makes clear that the Union is founded on the principles of respect for human rights and fundamental freedoms and the Union must respect fundamental rights, as guaranteed by the Convention, for the protection of human rights. It seems to me, on a reading of that, that if we put in place a bill of rights and obligations which replaces the European Convention and remains true to incorporating in it those fundamental human rights that we are speaking of and that we have been talking about this morning, I cannot conceive of how it can be said that we are not respecting fundamental rights as guaranteed by the Convention. I am not suggesting for one moment that we go any further than, for example, the UN Convention on the Status of Refugees just gone. I do not think it could be said that in those circumstances we are not respecting fundamental human rights. Then, if you look at Article 7, and presumably you must construe the two together, you say, "In what circumstances does a Member State get into trouble for a breach? What are we talking about?" In Article 7 of the European Union - this is Amsterdam as now consolidated with Rome and it was Article F of Amsterdam - "The Council [the European Council] may determine the existence of a serious and persistent breach." We are not getting into that territory. Q42 Bob Russell: So, why change the words? What is it all about? Jonathan Fisher: It is all about a number of things. First of all, that our civil liberties are not being adequately protected and we need to specifically flag up and enshrine certain fundamental rights that we have in this country, and also it is all about making clear that individuals do have obligations and that the rights-based culture leads us to a very lopsided approach towards civil liberties, and it is all about taking us forward in a way that allows us to meet the challenges (and they are very real challenges) of the modern age, whether we are looking at the challenge of international terrorism or the challenge of trying to engage large sectors of our population who do not even vote in this country at elections. So, it is about all of those things. Q43 Mr Winnick: What has that got to do with the Human Rights Act? Jonathan Fisher: A lot, because if people come to understand the importance of a democracy, if they understand the importance of core values, of their own individual responsibility to society, one of the things they will realise is that they should be participating and they should be encouraged to participate. Q44 Mr Winnick: Are you really telling us that what you are suggesting would encourage people to vote? Jonathan Fisher: I would like to see it engender a culture in which people appreciate what we in this room hold dear, which is the importance of individual responsibilities to each other and to society and to the values that this country represents and has taken to the world. We need to transmit that, and I do believe that, by adding obligations into a bill of rights and obligations, you will start to go down that road. Q45 Mr Denham: Mr Fisher, you have stimulated a great deal of discussion on this issue, and a great deal of thought. Can I thank you very much indeed. Jonathan Fisher: Thank you for inviting me. Mr Alan Beith was called to the Chair
Witness: Rabinder Singh QC, gave evidence.
Mr Beith: Mr Singh is just joining us and he seems to be setting up some technology. While he does so, we have been joined by Mr Vaz who might have an interest to declare. Keith Vaz: Yes, I am an employed barrister. Q46 Mr Beith: Mr Singh, we are very glad to have you with us today and we recognise that you sit, from time to time, as a Deputy High Court judge and appear as counsel in cases which it would not be appropriate for you to discuss. Rabinder Singh: Yes. Q47 Mr Beith: If you are in danger of doing that, I am sure you will point that out and we will protect your right to silence in those circumstances? Rabinder Singh: Thank you very much. Q48 Mr Beith: Please proceed. You have seen the time constraint we are under. Obviously we want to have some time to ask you questions, controversial or otherwise, but we welcome you this morning. Rabinder Singh: Certainly. Can I say one other thing, Mr Beith, about my experience? I am here to try and help the members of these committees as a legal technician and no more than that, but my experience may be of some interest to members of the committees. Before I became a QC I was one of the barristers known as Treasury Counsel on the civil side, and that meant that much of my work as a barrister was in representing the Government in court cases. As it happens, as you know, it is a non-political appointment. I was appointed by a Conservative Attorney General in 1992 and continued in that role until I became a QC. I want to start by looking at Section 1 of the Human Rights Act, which incorporates the Convention rights as set out in Schedule I to the Act. They are not all the rights in the European Convention, but they are most of them. In particular, the main rights are the ones in Articles 2 to 12. Many of them will be familiar to members of these committees. I will run through them very quickly: the right to life in Article 2, freedom from torture, Article 3, the right to personal liberty from arbitrary detention, which is Article 5, the right to a fair trial in Article 6, privacy and family life rights in Article 8, freedom of religion and conscience in Article 9, freedom of expression and assembly, which is Articles 10 and 11 and the right to marry in Article 12. In addition, Article 14, which guarantees non-discrimination in the enjoyment of the other rights in the Convention. Finally, the Act includes two of the Protocols to the Convention. The First Protocol guarantees, amongst other things, the right to vote, in the Third Article, as well as the right to property and also the right to education. The Thirteenth Protocol was added more recently than 1998 and this is a protocol which completely abolishes the death penalty and is being included as an amendment to our own law through the Human Rights Act. As at least one member of this Committee has already mentioned this morning, there are, in fact, in the Convention different categories of rights. They are not treated in the same way. There are absolute rights, but in fact just about the only real example that I can think of as an absolute right is the right in Article 3. Although Article 2 (the right to life) is sometimes described as an absolute right, in fact, when you look at the text of it, there are some very limited exceptions even to that, for example when a suspect is shot dead. If it is absolutely necessary, let us say because they may be about to kill another human being, then it may be that that can be a lawful taking of life within the meaning of the Convention. It is really the freedom from torture which is, as far as I can see, the one truly absolute right in the Convention. Secondly, there are some rights which are limited rights because they are, in the Convention itself, expressly said to be subject to limitations, and those limitations are spelt out so there is not some kind of more general ability on the part of the state to qualify them. A good example of this would be the right to personal liberty in Article 5, which obviously is subject to a number of commonsense exceptions. The most notable one would be that someone who had been convicted of a criminal offence can obviously have their liberty taken away during their sentence of imprisonment. The others are spelt out in Article 5 itself. Thirdly, there are qualified rights where there is a more general ability, which is not specifically spelt out in the Convention itself, where the state can restrict these rights, where necessary, in a democratic society. The two best known examples of this are the privacy rights in Article 8 and the freedom of expression right in Article 10. The final distinction I want to draw under this heading of "categories" is that there is a distinction between dirigible rights and non-dirigible rights, and this is not entirely the same as the distinction between absolute rights and non-absolute rights, because the primary non-dirigible rights are the right to life in Article 2, although even then it can be subject to derogation if life is taken pursuant to lawful acts of war, and that obviously makes sense. If you derogate from the Convention because there is a war on, then, of course, the Convention permits lawful acts of war and the taking of life in that sense, but torture is a non-dirigible right in Article 3, so even in time of war or other national emergency. This truly is perhaps the fundamental flaw which the Convention lays down and that I wanted to mention because sometimes there is reference to derogation in a slightly different sense. To a lawyer at least, technically, derogation is only available in time of war or national emergency. Sometimes, more in a lay sense, derogation is used to refer to what I have called "qualified rights", which is restrictions, where necessary, in a democratic society, and those do not only have to be in a situation of war or emergency. I want to say a bit more about qualified rights. This raises a number of questions which the law requires to be addressed. First, is there a Convention right in play at all: because there may not be. Many people make assertions that they have a right to this, that or the other when in fact they are wrong. Secondly, has there been an interference with that right? Thirdly, was the interference in accordance with the law? Fourthly, does the interference have a legitimate aim? In my experience as a practitioner at least, thus far, it will usually actually be quite straightforward for the state to be able to overcome these hurdles. They are questions that have to be asked but they can usually be answered, in many cases, in favour of the state. Legitimate aims would include, for example, protecting the rights of others and preventing disorder and protecting national security. The really difficult question in law and in practice, I suspect, is when it comes to the fifth question, does the restriction meet the test of proportionality? As you will know, this is one of the fundamental concepts in the convention system which has been introduced into our law under the Human Rights Act. Also a little bit more about how the courts, not only in this country but throughout Europe, apply and interpret the concept of proportionality. This is well established in the case law. The first point is that there has to be a pressing social need; in other words a legitimate aim which is sufficiently important to justify in principle limiting the fundamental right in question. Again, this is usually quite easy to overcome because protecting national security or the rights of others, preventing crime, preventing disorder will readily meet these in most cases. Secondly, the restriction must be rationally connected to that need. This is perhaps a commonsense point, because if the restriction is merely futile, if it does not achieve in any way the asserted aim, then it will fail the test of proportionality, but, again, very few cases in practice fail (if you are representing the Government) for this reason. Thirdly, the restriction must not impair the right more than is necessary to meet the need, so, again, if it goes too far. This is often what is meant by a disproportionate response, and sometimes in the case law it is expressed in the formula that, if you use a sledge hammer to crack a nut, then that is going too far. Fourthly (and I think this is worth stressing because this is a formula that you will see in the case law from the European Court of Human rights time and again, and you see it reflected loyally in our own legal system now we have the Human Rights Act), a fair balance must be struck between the rights of the individual and the general community. That is said by the Strasbourg court to be inherent in the convention system. I want to deal, Mr Beith, now with three practical examples of the impact of the Convention rights on our own Criminal Justice System, and those examples are going to be the functions of the Parole Board, minimum sentences and the question of deportation. Turning then to the functions of the Parole Board, the main legislation which governs the functions of the Parole Board is the Crime Sentences Act 1997, in particular section 28. Essentially, the position before the Human Rights Act has remained the same after the Human Rights Act under the 1997 legislation. What the Parole Broad has to do is to consider whether there is any longer a danger to public safety, and their duty is not to release an offender unless they are satisfied that there is no longer a danger. So, what the courts in some of the case law have said is the default position is in favour of continued imprisonment; and it is absolutely clear in law that public safety can be taken into account; indeed, it is the duty of the Parole Broad precisely to do that. As I have said, Chairman, there is a presumption against release - that is what the courts have called the default position. Finally, under this heading, I just wanted to mention this point. The Convention rights (the Human Rights Act) have not changed this. This was the law in the 1997 Act and it has remained the law since the Human Rights Act. The second area I wanted to touch on is the question of minimum sentences and tariffs. As you will know better than me, Parliament from time to time passes laws which require perhaps the minimum sentence (I think possession of firearms by an adult offender is an example of that where I think there is a five-year minimum sentence now) and there are occasions when legislation lays down tariffs as well, and the new 2003 Criminal Justice Act, particularly in relation to murder, seeks to do that. The essential position under the Convention that we have reached, as a result of certain case law, both in Strasbourg and in our own legal system, is that these must be laid down by Parliament. There is nothing wrong in principle under convention law with Parliament laying down minimum sentences and tariffs. What has led to legal problems in the past is where a member of the Executive, typically the Home Secretary, was able to decide what the tariff should be, not as a general policy matter but actually in an individual case. It is that which the European Court of Human Rights has said is incompatible with the right to have your sentence passed by an independent and impartial tribunal; but for the moment, all I would like to stress, Chairman, is the fact that normally the individual is entitled to have a sentence passed by the judge in their case does not preclude Parliament (the Legislature as opposed to the Executive) from laying down, as a general matter, minimum sentences for a category of offence or a minimum tariff. The final topic I wanted to touch on, Chairman, is deportation. This has been mentioned by some of the other speakers already. In my experience, at least, most immigration cases fail when they seek to rely on the Human Rights Act because typically people will seek to invoke the right to respect family life in Article 8, and they are entitled to do that, and what the Convention requires is that a fair balance has to be struck. So, you have to look at the facts of the particular case and see whether, in that particular case, it may be, for example, that there has been a very longstanding marriage or other similar relationship with someone who is a British citizen. Often in these sorts of cases there are children who have been born here, educated here; they may be in their teens possibly by the time the case is determined and they may be British citizens. So, you do have to balance a family life and the impact on that, but what is absolutely clear is that immigration control is something which is a weighty factor which can be taken into account in favour of the state. As long as a fair balance is struck by the Home Office, the attitude which the courts have taken (and it is the same as in Strasbourg) is that those decisions by the Home Office will usually be respected on democratic grounds. Sometimes this is known as "the discretionary area of judgment". A discretionary area of judgment is afforded to the Government in order to decide where the fair balance should be struck. So, in my experience, most of the cases actually fail. There are some cases under Article 3 and, because of its absolute nature, these will not entitle the state to engage in a balancing exercise. The classic case is Chahal, which has been mentioned already, but, in fact, that built on an earlier decision of the Strasbourg court in 1989 in a Death Row case of Soering. The Court of Human Rights held that a party to the ECHR could not extradite someone to a country where they would face the death penalty. One of the ways in which that is in practice dealt with is by obtaining assurances from a country like the United States that in that particular case the death penalty will not be sought or imposed; but that is the origin of the doctrine which you see later in the Chahal case. The only thing I want to emphasise for now is that this is the effect, not of our own courts' interpretation of the Human Rights Act, it is not the result of the enactment or implementation of the Human Rights Act, this is the effect of Strasbourg case law, and the position was the same before 1998. Chahal was decided in 1996 and, unless and until the Strasbourg court took a different view at some future point in time, that would be legally binding on this country, even if tomorrow we were to repeal to the Human Rights Act. Chairman, thank you for that opportunity to make those remarks. Q49 Mr Beith: Thank you very much indeed. An absolutely fascinating view from the front-line of what it is actually like to implement the legislation. Can I put one point to you. The DCA's review of the Act published recently said that there is no doubt that the Act has established a dialogue between English judges and the European Court of Human Rights. It refers to the Osman case and the fact that the European Court did not follow its own original judgment following the consideration of the House of Lords discussion on the same matter. Rabinder Singh: Yes. Q50 Mr Beith: The impression you have given is of the Human Rights Act having far less of a dramatic impact on the jurisprudence and the general position of the law than people assumed. How significant is this dialogue factor? Rabinder Singh: It is significant, I think, in two ways, Chairman. Firstly, in specific cases, and the best example that people have been able to come up with is exactly the one that you give. Essentially, what happened was that in a case called Osman in the 1990s the Strasbourg court appeared to have misunderstood English law and that was the subject of some quite robust criticism by judges in this country, particularly by Lord Hoffmann, I seem to recall, in one piece that he wrote. The consequence was, and in a subsequent judgment of the Strasbourg court called Z v The UK, they actually took that criticism on board, and, although it probably did not affect the outcome of the case, the reasoning of the court has definitely, in many people's view, been improved by this dialogue, as you call it, taking place. The second way in which, as I understand it, it has made a difference (and this is something that you do hear members of the Strasbourg court saying when they give lectures when they are not sitting as judges) is that the incorporation of the Convention into our own law has tended to have the effect that in cases that do go to Strasbourg, having been through our own courts first, the Strasbourg judges really appreciate the fact that the British judges have had an opportunity to consider the human rights issues fully, and they will very often, therefore, respect the judgments of our own court. This has sometimes been called "the margin of appreciation", which is one of the features of the Strasbourg system. Q51 Bob Russell: Mr Singh, you said the only absolute right that we have is to be spared torture. Presumably that applies to anybody in this country, however briefly they are here, whether they are citizens or non-citizens. Is there a definition of torture? Is there an interpretation of what is torture? Rabinder Singh: Yes. Q52 Bob Russell: And if it is known that planes are landing in this country - torture flights or rendition flights, as they are sometimes called - carrying people who the state knows, officials know and, indeed, employees of the airport know have been tortured or are on their way to a country to be tortured, are those people collectively in breach of the human rights of that person, however briefly they are on British soil? Rabinder Singh: Mr Russell, can I answer that question by reference to the general legal issue. I will not, if you will forgive me, comment on the very specific question that you have raised because I am involved as a barrister in that very legal issue. Q53 Bob Russell: I apologise. Rabinder Singh: There is no need to apologise. I will try and address, if I may, the general legal questions that you have very fairly raised with me. First of all, it is absolutely right that the fundamental freedom from torture is given to everyone within the jurisdiction of this country, citizens, non-citizens, however temporarily they may be here, and that is a reflection of the truly fundamental nature of this right, and it does not need me to remind members of these committees that, of course, the origins of this lie in the experience of the Holocaust and the Second World War. That is why it was made by our forebears so fundamental and absolute. Secondly, there is a definition of torture. Forgive me, I do not have the text immediately to hand, but it is well established in international law, as well as a lot of learning, not only from the Strasbourg court but also from the UN body which implements the UN Convention against torture. Essentially it requires a certain minimum level of suffering, either physical or mental, to be attained. So, just because lots of people may feel that this or that is unpleasant, this or that is torture, does not make it so. Secondly, usually, it is said that there has to be an element of intention; in other words that the reason why you are inflicting this minimum severity of pain is deliberate, because you are trying to break someone's spirit or you are trying to extract information or something of that sort. I think I will probably leave it there because of the rendition flights issue. Q54 Gwyn Prosser: Mr Singh, if Parliament had not decided to incorporate the European Convention and most of the principles into UK law through the Act, to what extent do you think you and your colleagues on the Bench would have continued to interpret the European Convention and build up common law and case law, and might there, in your view, come a time when all of the important principles will have been encapsulated in our own law, and, in addition to that, how far along that track had you passed before 1998? Rabinder Singh: The stage which had been reached in the English case law by 1998 was that the House of Lords, as a judicial body, had held that when there is legislation passed which uses general words and does not specifically permit the state to violate fundamental human rights, the Act would be interpreted in such a way that it was presumed that Parliament did not intend to permit violation of fundamental rights, and this was known as the "principle of legality". The leading case on this subject was a decision of the House of Lords called Simms, and, in fact, Lord Hoffmann, sitting as a Law Lord, said in that case that he was looking ahead to the Human Rights Act and the obligations the courts would have under the Human Rights Act, and he expressed the view that there was very little practical difference that he anticipated between the approach which was already being taken under the common law and the approach which would be required by Parliament enacting the Human Rights Act. I think it is fair to say that, both then and since, many people, including our senior judiciary, have felt that it is helpful to have the Human Rights Act because it gives the democratic imprimatur of Parliament to what was gradually occurring in any event. The last part of my answer, Mr Prosser, would be that, so far as the rights which were said at common law to be fundamental are concerned, there had been case law up to 1998 which had said, for example, that freedom of expression, certainly the right to life, freedom from torture, and so on, were fundamental rights known to the common law, obviously the right to a fair trial would be and the right to freedom from arbitrary detention. There had been some debate about the status of privacy in our English law before the Human Rights Act, and that has broadly become clarified as a result of the Human Rights Act, but the common law had taken many steps in the direction to which you are referring. As a lawyer, I would have to say that it did not exactly replicate the contents of the European Convention, but it was certainly going a long way there. Q55 Mrs Cryer: Mr Singh, I have been worrying for many years about Article 12, the right to marry. Should it be amended to read "a right to marry whom you choose" or, indeed, "a right not to marry, should you choose", because in the northern towns and cities of this country there are thousands of girls who are either being forced into a marriage very much against their will, taken out of this country to marry that person. Often the person is determined for them by their parents at the time of their birth, and there is no argument in that family. They have no right to choose who they should marry. In worse case scenarios, there are 13 girls per year dying as a result of so-called honour-related crimes and almost all of them will stem in some way from an attempt to marry that girl off. Therefore, I wonder if you have any suggestions as to what the Government could do to either immigration law or criminal law to assist such girls in determining their own future. Rabinder Singh: Again, for reasons that the Chairman explained at the beginning, if you will forgive me, I will try and answer that as a lawyer at the legal level and not at a policy level, because what policy should be is a matter for the Government and, ultimately, for yourselves in Parliament. If I may, I would answer your question in two parts as a lawyer. First of all, I would argue, as a matter of interpretation, that a notion of a right to marry inherently includes with it freedom of choice. I would argue that, because I do not think it would necessarily need a change to that but just a proper understanding, if my interpretation is right, of that. Secondly, I certainly recognise what you are referring to. It is a subject that I have come across as a legal practitioner. I have represented, for example, the Southall Black Sisters in one case where there had been precisely the kind of so-called honour killing that you are referring to. It was interesting there that what they were trying to do was precisely what I think somebody (it may have been yourself, forgive me) asked about earlier about the rights of victims, because what they were trying to do was to use the right to life guarantee in the Human Rights Act on behalf of the family of a young woman who had been killed in suspicious circumstances and, at least as they saw it, there had not been a proper investigation by the police and nobody, in fact, was ever apprehended for that particular crime. Mr Beith: Mr Brokenshire, who will need to declare an interest. Q56 James Brokenshire: I formally declare my interest as a non-practising solicitor. Mr Singh, you talked about the arrangements that might be constructed with other states to allow deportation to take place and in particular cited the example of the United States in a case where the death sentence might be considered. Obviously you are aware that various other Memoranda of Understanding have been drawn up in certain other states. What factors would you consider relevant, in terms of a potential challenge under the Human Rights Act of the robustness of those arrangements, which might undermine the effectiveness should a challenge subsequently be brought? Rabinder Singh: That is actually quite difficult for me to answer, in fairness to you, because as a legal practitioner I am involved exactly with that issue. I think at a general, legal level all I can say is this. The precedent of Memoranda of Understanding in relation to the death penalty at least indicates that in principle this is a legal avenue which may be available, but whether it would be effective in a particular case is going to have to depend on the circumstances. Q57 Mr Streeter: You mentioned earlier, Mr Singh, that Strasbourg judges have graciously acknowledged how good it is to see British judges applying the Human Rights Act in our own cases. Do we any longer need that final reference to Strasbourg if we have our own Human Rights Act, which embodies, I think, all of the principles of the Convention, does it add value and why on earth would there ever be cases or situations when Strasbourg judges would find in a different way to British judges, as they have considered it all the way through? Rabinder Singh: Certainly the experience of all members of the Council of Europe appears to be the same as the United Kingdom. There are very well established democratic societies, not only the newer ones which have joined recently from Eastern Europe but I have in mind countries like the Netherlands, with a very strong democratic tradition similar to our own country, who have found that in practice, although they have their own bill of rights, they have their own incorporation of the Convention into their own law, nevertheless there do still seem to be a hard-core of cases that go to Strasbourg. I think the only way in which I can answer your question at a sufficiently abstract level is to respond by saying that, as far as I am aware, no member of the Council of Europe has regarded this as being a problem in practice, but they do feel that there is value added in remaining within the collective system. I suppose the minimum that can be said for it is that it shows each Member State's public willingness to be held accountable on a Europe-wide basis, and I think these are values that all of us are proud to be adherents to. Q58 Mr Denham: Can I ask you a question about the interaction between human rights law and the practical, murky business of government itself. In human rights cases courts establish what is legal in individual areas of government policy without perhaps having to have regard to whether there is an alternative policy that is available to government to solve a problem. So, without going into the merits of any cases, one could argue, take one case, a Customs seizure case, a decision that the Customs confiscated too much stuff may well have been the right legal decision but probably makes dealing with smuggling, as an issue of public policy, much more difficult or that the succession of terrorism cases, Belmarsh, deportation, control orders, leaves the Government with a shortage of tools to tackle a major problem. Is there any way round this difficulty that the courts, in looking at an individual legal case, appear to have no responsibility to whether government can actually have an effective operational policy? Rabinder Singh: Mr Denham, in my experience at least, what I have found is that actually the answer to your question necessarily differs according to which category of rights in the Convention we are talking about. Earlier I talked about the absolute right or the limited rights, like the right to freedom from arbitrary detention - in other words, detention without trial. That is what has led to some of the results that you are talking about, but, more generally, at least in my experience, when the courts are grappling with the qualified rights, where there can be a balance struck and restrictions are perfectly permissible in principle but you have to examine the circumstances to see whether a fair balance is struck, what happens in reality is that actually the Government or other public authority which is being challenged does put before the court quite wide-ranging evidence, and, because one of the legal questions which the court will have to ask is the question about proportionality - "Have you gone too far or were there other ways in which you could have pursued your legitimate policy objective?" - in order to answer that question the court is actually often asked by public authorities to review their evidence and they will make arguments that there was actually no other reasonable way in which they could have achieved the legitimate aim in question. In my experience, if that is right and that case can be made good before a court, that will certainly be accepted. In some cases, depending on the facts, it may not be accepted. Q59 Dr Whitehead: This is pursuant to John Denham's question. When we are talking about qualified rights, which we have just mentioned, those could be regarded as being qualified by perhaps an obligation, which is a negative obligation, not to interfere with the rights of others - that is, you can do what you like providing you do not cut across the similar right of others to do the same? Rabinder Singh: Yes. 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. |