Examination of Witnesses (Questions 40-45)
JONATHAN FISHER
QC
31 OCTOBER 2006
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.
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