Examination of Witnesses (Questions 46-59)
RABINDER SINGH
QC
31 OCTOBER 2006
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.
|
