Examination of Witnesses (Questions 21-39)
JONATHAN FISHER
QC
31 OCTOBER 2006
Q21 Mr Denham: We will move straight
on, if we may, to our next witness, Jonathan Fisher QC. Mr Fisher,
thank you very much indeed for joining us this morning. You are
going to make a few opening remarks as well, so if you would like
to introduce yourself and then go into your opening presentation,
that would be very helpful.
Jonathan Fisher: Thank you very
much. I was elected to the Society of Conservative Lawyers Executive
Committee as their Chairman of Research in May of 2006 and at
that point initiated a programme of research into human rights
issues. The daytime job that I have is as In-House Counsel with
a firm of solicitors. I have spent 25 years at the independent
Bar, in particular working in criminal law, and I was Standing
Counsel to the Inland Revenue for 12 years, and my practice is
essentially white collar crime cases. I have also become closely
associated with the Conservative Liberty Forum who have published
a paper that I have just written entitled A British Bill of
Rights and Obligations. I believe that has made its way to
you. I am very grateful to hon Members for permitting me ten minutes
to make opening remarks before taking questions. There are two
ideas that I would wish to present to the Committee for its consideration.
First, I suggest that the European Convention is not a sufficiently
sound instrument to protect human rights as we recognise them
in Britain today. In some areas it is too strong and in other
areas it is too weak, embodying minimum standards directed at
the lowest threshold. Secondly, I suggest the Convention is a
fundamentally flawed instrument because it omits any notion of
civil obligation. This omission diminishes the significance of
individual responsibility, which is a critical value to be nurtured
in a civilised society. It also leads to a distorted recognition
of individual human rights in certain paradigm situations. Dealing
first with the inadequacy of protection afforded by the Convention,
many of the rights are too heavily qualified for the British palate.
In the absence of expressly declared human rights of a specific
nature, it is all too easy for government to derogate from the
broadly conceived rights which the Convention enshrines. The incorporation
of the Convention into English law has not inhibited the passing
of legislation which promotes the removal of the right to trial
by jury in certain cases. The right to trial by jury needs to
be specifically spelt out for it to be adequately protected. The
Convention does not prevent the extradition of British nationals
where the substantial part of the allegedly criminal conduct has
occurred in Britain. The right of a person to be tried in Britain
needs to be spelt out, as does his right to have evidence considered
by a British court before extradition. The Convention has not
inhibited government from significantly increasing police powers
to require suspects to submit to compulsory interrogation. The
anti-money laundering legislation requires the financial sector
to report suspicious activity. Fundamental human rights such as
the privilege against self-incrimination and the sanctity of legal
professional privilege need to be expressly declared to secure
civil liberties when legislation of this sort is contemplated.
In other areas the protection afforded by the Convention is too
weak. Consider the ability of the state to derogate from the right
to free assembly in Article 11. Witness the inability of Mr Brian
Haw to maintain his demonstration on the corner of Parliament
Square. Is this not an assault on civil liberty against which
the Convention has been silent? Moreover the derogation from Article
10 is sufficiently wide to enable freedom of speech to be curtailed
under the new Racial and Religious Hatred Act. On a different
but related point, the tension between the vague notion of respect
for private and family life in Article 8 and the equally vague
notion of the right to freedom of expression in Article 10 ought
to be tackled by the Legislature and not by the courts. There
are other examples of specific rights which need to be expressed.
Privacy rights need to be secured with regard to information held
by government agencies. The right to communication without interception;
the protection of journalists' sources; the right to self-defence
of a person's family and property; these ought to be specifically
expressed. If fundamental civil liberties are to be adequately
secured in the modern age, a bill of rights must be more specific
than the Convention on their delineation. Today I suggest to you
that Britain has the worst of both worlds because not only is
the Convention inadequate to protect fundamental civil liberties,
it entrenches a rights-based culture which is hopelessly unbalanced
by its omission to incorporate any significant notion of civil
obligation. The Convention mentions the concept of duty only in
Article 10(2) where the exercise of freedom of expression "carries
with it duties and responsibilities", whatever they may be.
Two years before the text of the Convention was agreed, the UN
adopted the Universal Declaration of Human Rights. Interestingly,
there is a material difference between the two texts. Unlike the
Convention, Article 29 of the Universal Declaration records that
everyone has duties to the community in which alone the free and
full development of his personality is possible. The American
Declaration on the Rights and Duties of Man, approved in 1948,
sets out nine specific obligations, including those to aid, support,
educate and protect a person's minor children; to vote in popular
elections; to pay taxes and to work; to obey the law and co-operate
with the state with respect to social security and welfare. In
recent years international awareness of the limitations of a purely
rights-based approach to human rights has increased. In 1997 the
InterAction Council invited the UN to proclaim a Universal Declaration
of Human Responsibilities as "a common standard for all people
and all nations". The text of this Universal Declaration
is apposite in an age where there are real concerns that large
sections of the population have become disengaged from society
and when the need to foster a greater understanding and commitment
to civic responsibility is recognised by the political establishment.
Article 5 of this Declaration declares that every person has a
responsibility to respect life, whilst the articles which follow
are clearly directed to the enhancement of a civilised society
in a world threatened by global warming, poverty, AIDS, drugs
trafficking, people trafficking, corruption, and indeed cultural
degeneration. I suggest the inclusion of civil obligations in
a bill of rights and obligations would serve two important purposes.
First, the inclusion of civil obligations would unambiguously
declare to every British citizen the importance of individual
responsibility and would serve to promote societal cohesion. It
would instil in every citizen a sense of direction and responsibility
which would be passed down the generations. It is trite to observe
that today's children are tomorrow's responsible citizens, but
there needs to be a framework in which the core values of human
rights and individual obligations can be transmitted. Secondly,
the incorporation of civil obligations would enable the protection
of human rights to be balanced in the public interest, by allowing
recognition of individual rights to be viewed contextually through
a prism of individual obligations owed to society. Parliament
should not be shy to grapple with the extent to which a person's
conduct ought to be taken into account by the Executive when determining
his entitlement to rely upon the rights set out in a bill of rights
and obligations. It is interesting to note that Article 18 of
the German constitution unambiguously declares that "whoever
abuses his basic freedoms in order to attack the free democratic
basic order forfeits these basic rights." Similarly, Article
33 of the UN Convention on the Status of Refugees makes clear
that a contracting country "shall not expel or return a refugee
where his life or freedom would be threatened", but Article
33(2) provides that "the benefit of this provision may not
be claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which
he is." In point of fact, Britain does not need to go so
far as the German constitution or the UN Convention on the Status
of Refugees. It would be sufficient for a bill of rights and obligations
to steer a middle course, for example by affording the Executive
an opportunity to take into account the breach of an individual's
civil obligations or his perceived threat to the country in terms
of national security against other matters such as the risk and
extent of the threat to that person if he or she were returned
to their country of origin. This does not necessarily mean that
national security interests will always trump the rights of the
individuals but it does mean that the actions of the individual
would be taken into account when the Executive makes its determination
in the public interest. The courts would be obliged to review
the legality of the Executive's decision within this framework.
This change would entail the replacement of the Human Rights Act
with a carefully crafted bill of rights and obligations but one
which would retain the declaratory architecture and might also
opt for the notion of "soft entrenchment" by amending
the Parliament Acts to stipulate that any provision in the new
bill of rights and obligations could not be overridden without
the concurrence of the House of Lords. It would remain possible
for a British citizen to petition the European Court of Rights,
although the number of cases where the Court would reach a different
decision would be limited. The Strasbourg Court and the European
Court of Justice would give greater weight to the margin of appreciation
where Britain's core values had been spelt out. Britain is obligated
through its membership of the EU to "respect fundamental
rights guaranteed by the European Convention on Human Rights".
A British bill of rights and obligations would indeed respect
these fundamental rights, even if it did not replicate them or
codify the jurisprudence of the Strasbourg Court to the letter.
The unsophisticated incorporation of the Convention into law has
brought problems in its wake. Government made a grave error in
this regard. It is high time that the error is acknowledged and
lessons learnt. The solution, I suggest, lies in the enactment
of a British bill of rights and obligations which would restore
the balance between individual rights and individual responsibilities.
The enactment of a modern bill of rights and obligations would
also send a clear message to the public by affirming the core
values of society and the nature of the historic relationship
between the British citizen and the state. In today's fractured
society that would make, I suggest, a valuable contribution of
itself.
Mr Denham: Thank you very much indeed.
That was very clear.
Q22 Mr Beith: If you have a bill
of duties as well as rights can the duties be more than declaratory
and, if they are more than declaratory, do they abate people's
individual rights only at the point where that right is related
to the failure of duty? For example, in the case of someone who
is, let us say, convicted of an offence which itself is a demonstration
of failure of duty, do you actually envisage litigation around
a trade-off because someone appears not to have carried out a
duty and therefore should have less rights in some other respect?
Jonathan Fisher: I can deal with
the point about litigation. I certainly do not envisage it being
a source for direct action between individuals, plainly that is
not right, I certainly see the scope for duties as being essentially
declaratory but more than declaratory to this extent: that a breach
of any duty is something that could be taken into account. I am
not saying that it would necessarily lead to an automatic forfeit,
that is not what is being advanced. What I am saying is that if
you have duties and they are properly incorporated into a bill
of rights and obligations, then what I am suggesting is that the
Executive would be entitled to take into account a person's breach
of duty when considering the issue that relates to the recognition
of their rights, so to that extent it is something that goes into
the equation. That is why I made the point of saying that in many
cases it would not necessarily trump an individual's rights, but
at the moment we cannot take them into account. The Executive
should be able to take them into account, so to that extent they
would be more than declaratory.
Q23 Mr Beith: Given the standpoint
from which you have looked at this, which from the beginning was
one rooted in British traditions of freedom, can you really be
comfortable with the Executive adding this weapon to its armoury
in actually being able to threaten people in some sense with an
abatement of rights for their failure to carry out duties?
Jonathan Fisher: I do not see
it as a weapon. I see it as something that goes into the melting
pot, that goes into the equation that the Executive has to consider
when looking at how to deal with particularly difficult situations.
I repeat, in the majority of cases it is not going to make an
enormous amount of difference, but there will be some cases where
it might or where it would make a difference.
Mr Winnick: I would have thought to a
large extent, Mr Fisher, that duties are covered already in law.
To give one example, the duty of parents to ensure their children
go to school is covered. Apart from pious wishes, I must confess
perhaps bias not to accept the premise of your argument, but can
I get this position absolutely clear. You are saying that a future
Conservative Government would replace the Human Rights Act with
what you have explained to us? It would not be an addition, it
would be a replacement?
Q24 Mr Denham: It is a little unfair
to ask Mr Fisher to speak on behalf of the Conservative Party,
unless he has a mandate to do so.
Jonathan Fisher: I was going to
deal with that immediately. I am not speaking on behalf of the
Conservative Party.
Q25 Mr Winnick: Is it the wish of
your organisation within the Conservative Party that a future
Conservative Government does as you have outlined?
Jonathan Fisher: What I am saying
is this: it seems to me looking at this area that the European
Convention should be replaced by a bill of rights and obligations.
The bill of rights and obligations would obviously remain true
to the fundamental principles espoused in the Convention, of course
that must be right and that is what membership of Europe requires,
but I am saying more than that. I am saying that there is a need,
in order to safeguard civil liberty in this country, for a number
of civil liberties/fundamental human rights that we see as dear
to us in this country to be expressly spelt out, because at the
moment they are not expressly spelt out, and the ability to derogate
from what we have in the Convention is very wide. I am saying
that it is too wide and I am also saying that whether you regard
it as pious or otherwise, it is sensible and it should be, and
indeed is important to incorporate within this new bill of rights
a series of obligations, which has a number of advantages. First,
it makes clear the core values that we regard as critically important
to us as a nation and they should be, as it were, show-cased,
and that is very important in saying who we are, what we stand
for, and for transmitting it to the next generation. I am saying
as well that that factor would be helpful and it is certainly
something that should go into the melting pot if you have an individual
who breaches those duties, who does not respect those values,
because that fact is something which the Executive should be able
to take into account when balancing the public interest in coming
to a view in certain difficult cases.
Q26 Mr Winnick: And in order to clarify
the situation, if that situation arose as you have indicated you
would wish to see, you have already confirmed that individuals,
British citizens would be able to go to the European Court in
the same way as previously? You are saying it would only be a
small number of cases?
Jonathan Fisher: Yes.
Q27 Mr Winnick: But the whole purpose,
am I not right, of including the Human Rights Act in British law
is that individuals need not go abroad and it can be dealt with
here? You would be advocating a situation similar to what happened
previously?
Jonathan Fisher: Yes, but with
this very, very important difference, that we would have a bill
of rights and indeed a bill of obligations that sets out exactly
what those fundamental human rights are which our courts would
be considering. So it is not back to pre-1998 because you would
not take out the Convention and not replace it with anything,
I am not suggesting that for one moment.
Q28 Mr Denham: In order to try to
understand for my own benefit the sort of case you are making,
Mr Fisher, can I put a case to you—and you may or may not
be comfortable in responding directly—some of the most controversial
decisions that have involved the Human Rights Act would be the
issues of travellers and planning permission where Article 8 has
been prayed in aid as part of cases which we understand have a
lot to do with how a local authority carries out its planning
functions and so on and it is not a simple Article 8 issue. Are
you saying that in the approach that you would like to take that
the Executive and then the courts might take the view that if
people went on to land wrongly in the first place, and be in breach
of their civic responsibilities, that that would be taken into
account in a court case in judging whether they should be removed
from the land, because, as I understand it, at the moment how
they came to be there is not a factor in the court case. Are you
arguing that it should be and that is the sort of case you are
talking about?
Jonathan Fisher: I was actually
talking about, as I described it, the paradigm case. I guess I
was really referring to the Chahal situation but you are
absolutely right, as a matter of principle you can extend this
principle and, yes, the framework would cover the situation you
posit. Again, I would really make this very clear that what I
am advancing is that it is a factor which goes into the melting
pot and you would give weight to it. There is an enormous difference
between the degree of weight that you would give to the sort of
breach that you are positing in the planning situation or the
traveller situation and, for example, the breach of somebody else
who is planning a terrorist act. So I really do not want to be
misunderstood about this. I am saying that it would go into the
equation but it is a matter of weight and what this would do is
give the Executive the ability to weigh all relevant factors,
which it does not have at the moment.
Q29 Martin Salter: I am not as hostile
to the concept of a bill of rights and obligations as David or
some of my other colleagues on the Labour side, but I am slightly
concerned about the language you are using and would suggest you
might want to be as well. Could you just turn to paragraph 19.
What on earth do you mean by "cultural degeneration"?
Is this some kind of fascist sideswipe at multi-racialism, modern
music or whatever? Do we need a bill of rights to protect ourselves
from people like you?
Jonathan Fisher: I accept that
and I am suitably—
Q30 Martin Salter: Would you like
to amend your document now?
Jonathan Fisher: I will amend
it. I think I am referring to the sort of alienation that one
sees, the concern that one comes across where people do not feel
part of society. I think that is really what I am concerned about
and I am linking that as well in terms of the alienation of those
who do find themselves caught up in the drug culture. I am very
grateful and I think the sensible course is to strike through
those words.
Q31 Martin Salter: Can I move on
to the substantive argument that you make. The problem that I
and some other colleagues who are relatively new to this Committee
have got (who are not lawyers) is understanding the fit. We understand
home affairs issues, human rights issues through our casework,
through our immigration work, through the reaction of our constituents
to the appalling Afghan case where we cannot understand why you
can short circuit the system by hijacking a plane and apparently
you are not then a threat to life and civilisation as we know
it, and yet we are painstakingly taking our constituents through
the legitimate asylum process and so on and so forth. There are
exactly the same arguments around travellers, as the Chairman
said. How on earth can it be right that they see a gate smashed
open and yet the travellers do not know how they managed to get
there with no crime apparently being committed, and we have actually
got to concentrate on what would happen to the poor loves if they
were evicted rather than what has happened to the community that
they have invaded. How would this make a jot of difference in
simple language that I could explain to my constituents, never
mind myself?
Jonathan Fisher: Well, in the
way in which I have explained.
Q32 Martin Salter: No, clearly not!
Jonathan Fisher: I have tried
to explain—
Q33 Martin Salter: If we could just
go into Beano mode it would really help!
Jonathan Fisher: Alright, I will
do my best.
Bob Russell: Which part do you play?
Q34 John Denham: The constitution
is likely to be much more elevated than that.
Jonathan Fisher: I am trying to
take a sophisticated approach! Clearly if you enshrine certain
basic rights then the man in the street would understand much
more clearly what they are. If you tell him that he has a right
to trial by jury and it is written there, if he does anything
really serious he can see it. If you tell him he has a privilege
against self-incrimination or he has the right to legal professional
privilege, he can see it, it would be spelt out, so to that extent
it does make a difference because it focuses attention much more
clearly on those rights, so that is the first thing. Secondly,
in terms of duties, it makes it very clear to the man on the street
that he is a person who does owe certain responsibilities to his
fellow man and woman. He cannot just live in isolation and his
actions do have an effect on other people and he has a broader
responsibility. I could, for example, scope out and flesh out
the types of duties that we are talking about, and those are important
for the individual, the man in the street or, as lawyers would
say, the man on the Clapham omnibus, but you know what I am speaking
of, and the man on the street can certainly understand that. I
think the third aspect of this is as follows: you would explain
to a member of the public that this approach allows the Government
or the Executive a greater flexibility in taking into account
a person's behaviour when considering any assertion to the exercise
of fundamental rights, for example in the Chahal case the
right to stay here and not be removed. In that situation I am
talking obviously about the asylum situation and that is something
that everybody can grasp. I am not saying—and I repeat it—that
this will make an enormous difference in every case. You have
to make this very clear to people. I am not saying that any breach
would necessarily trump a person's individual human rights, but
you can explain to the person on the street that it would be something
that would be taken into account by those who govern him or her,
and that it may make a difference and would make a difference
in a small number of cases. It seems to me that those three points
are all important points that can be readily explained to the
man in the street.
Q35 Mr Streeter: I am attracted,
Mr Fisher, to the arguments that you are putting forward and I
think that it would be something which would be popular and resonate
with people's desire for a more commonsense approach to the issue
of rights. Not least I think it would be helpful in terms of teaching
school pupils about rights and obligations and it would be helpful
to be able to refer to a document to say, "Here, this is
what has been set out and this is what we require of you,"
and also in terms of citizenship classes that would be helpful.
I have got a couple of reservations. I have listened very carefully
to you and from the answer given to the first question from Alan
Beith, I am not convinced that it is going to make that much difference
in terms of the outcome of judicial cases. That is my first point
and you have already answered it so I am just putting that on
the table. I am not sure that it would make much difference in
practice or that there would be wider advantages. My main reservation
is this: would this not lead, of necessity, to the entirety of
our constitution having to become a written constitution codified
as some other countries have because can you really have a major
part of it now coming into a bill of rights and obligations and
then leaving the rest unwritten and evolving in the way that we
have done it in past? Would that not be an anomaly that would
lead to us having to have something thrashed out in statute?
Jonathan Fisher: Taking your first
point, it seems to me that it would make a difference to the approach
of the judiciary because the approach of the judiciary is obviously
conditioned. The judiciary works within the legislative framework,
and so when the judiciary has to make an assessment of the legality
of an executive decision it has to look at what matters the Executive
can properly take into account. If, in fact, you broaden that
framework and allow the Executive to take these matters into account,
then it seems to me that it would make a difference to the judiciary.
By the way, it just strikes me that one of the things we have
seen in recent times has been a criticism coming from government
of the judiciary. The one advantage of widening the framework
within which the Executive makes a decision is that it would not
place the judiciary in that situation, and, therefore, it seems
to me that this is something that actually could and would make
a difference. As to the question about the written constitution,
I see exactly where you are coming from. It must be possible,
it seems to me, to take out the European Convention and replace
it with a much fuller instrument, which is a bill of rights and
obligations, which would spell out our civil liberties and our
civic obligations without having a written constitution. I am
not suggesting a major rewrite of the framework of the Human Rights
Act. I hope I have been careful to avoid that. I stated specifically
that the architecture of the Declaration of Incompatibility is
one that one could easily preserve and see the value in preserving.
It is right to say that I did mention that there would have to
be a change. You would have to amend the Parliament Act. For example,
if there was going to be a derogation that it would be with the
concurrence of the House of Lords. That, of course, is a further
step that is going along the road of a written constitution, but
I do not see how it necessarily leads you to the point where you
say that we have to have a written constitution. If you go through
our history, you could put all the documents together—you
could go back to the Magna Carta, the Bill of Rights 1689, take
in the Act of Settlement, look at the situation with the Irish
Settlement in the 1920s, indeed, take devolution in more recent
times—you could put all these statutes together and say
we are coming close, we are going down the road of having a written
constitution, but it does not mean to say that you have to have
one. I suppose we would be taking yet another step, but to some
extent we have already taken it.
Q36 David Howarth: There is one aspect
of your proposal I do not quite understand. Perhaps you could
clarify it. It is the limit to which your balancing and taking
into account mechanism would apply. In the present Human Rights
Act there are some rights which are absolute, the right not to
be tortured for instance, and there are other rights which can
be balanced. Are you really saying that your taking into account
and balancing duties against rights even applies to what are now
absolute rights? Are you saying that the Executive might take
the decision to torture someone because they have not fulfilled
their duties under your list of obligations?
Jonathan Fisher: No, this the
paradigm case, is it not? It is Chahal, Chahal written
large. Let us say you have got very clear evidence, you have somebody
who has come here who is not a British National, he is, let us
say, claiming asylum. You discover that he is seeking to perpetrate
a terrorist act and, what is more, you have very clear evidence
that if you send him to his country of origin he is going to be
tortured. No, I am not saying that. What would happen is that
you would put into the balance all of these factors and you would
say, look, it is dreadful what he is doing, but, as Professor
Klug says, we are a civilised society and we are not going to
send somebody back who we know is going to be tortured, nor are
we going to send somebody back if we know there is a high risk
of them being tortured, but when you come to assess the balance
there will be other cases where the evidence is not that clear
or you may not have certainly that degree of clarity. What I am
saying is that you could look at the balance, and you would look
at all these factors in coming to your conclusion. That is not,
I would suggest to you, such a shocking statement to make. If
you look at the German Constitution, the German Constitution is
much stronger. It talks about a forfeit. If you are in breach
of your obligation, you forfeit your basic rights. I am not saying
that at all. If you look at even the UN Convention on the Status
of Refugees, it actually precludes a person claiming the benefit
of protection: "The benefit of the present provision may
not be claimed by a refugee where there are reasonable grounds
for regarding as a danger..." I am not saying that either.
Do not even go as far as that. What I am saying is that it is
something that could be taken into account by the Executive in
coming to an informed decision.
Q37 David Howarth: Can I press you
on this. The very act of balancing is a violation of the absolute
rights. You cannot balance absolute rights. So, are you rejecting
the distinction between absolute rights and other rights?
Jonathan Fisher: What I am saying
is that there are plainly certain rights that, when you put them
into the balance, are going to weigh extremely heavily.
Q38 David Howarth: So you are rejecting
a distinction between absolute and other rights, because you cannot
balance an absolute right.
Jonathan Fisher: I am coming very
close to it. I am not actually signing up to your formal rejection,
but I am coming close to it, because I accept that there are certain
rights that, when you put them into the melting pot, you would
give very heavy weight to.
Q39 Mr Denham: Can I move us on to
another area of the discussion, to be clear about the view that
you take, which is the role of the judiciary itself. Am I right
in thinking that you have got no fundamental objection to the
way in which the judiciary are today considering a great many
more issues than they would have done 30 years ago that would
have been the preserve of politicians and the Executive? Is it
merely that the judiciary are being asked the wrong questions
or being given the wrong issues to determine?
Jonathan Fisher: I think that
is right. I think the reality is, as I see it, that the Human
Rights Act did change things. It may not be a great change, but,
yes, there is a change between the balance of power between the
courts and the legislature: because the fact is, and it seems
to me inescapable, that the courts are concerning themselves with
certain types of issues that previously they were not, which are
issues that the Executive do consider, and they are forming judgments.
Obviously, however hard you strive to take an objective view,
there is inevitably always a subjective element. Yes, I do think
the balance has changed, I do think it has swung in the direction
of the judiciary and it is right that if you maintained the architecture
of the Human Rights Act, in particular Section 4, then you would
be adhering to the status quo that we have now, but it seems to
me that the alternatives are very difficult to contemplate. I
am not, for one moment, going along the road of saying the courts
would have the power to strike down legislation, as they do, for
example, in the States. Equally, to suggest that we should now
turn the clock back and, as it were, put the judiciary back in
its box is simply unrealistic.
|
