UK Bill of Rights Commission - Political and Constitutional Reform Committee Contents

Examination of Witness (Questions 36-51)

Q36 Chair: Anthony, I am so sorry not to have welcomed you earlier. I was quite late myself, breathlessly running to get here, but welcome to the Select Committee. This should not be an unpleasant experience. Certainly for someone from your profession, I am sure you will be more than a match for us, but nonetheless we are here to find information and to get a sense of the work of the committee, and above all perhaps to get a sense of the members of the Commission and where they are headed. I will start with a question that I asked Sir Leigh in terms of where would you place yourself in this debate? I am sure you will listen to the colleagues in the debates and move as you go, but where are you now on this whole question of bills of rights?

Anthony Speaight: I begin with the observation—and let me make it and get it out of the way so I don't have to repeat it in answer to every question—that although I have some views I approach this task with a totally open mind. Everything that is my view now may change, so whatever I say now about my views is purely a provisional position.

  Having got that out of the way can I also say something about the perspective that I bring, because it may be useful for me to say a word as to who I am, as I am probably one of the publicly least known members of this Commission; I have been a practising barrister all my life. I have been a member of the Conservative Party all my life. Insofar as it has any materiality I have been a pro-European Conservative all my life, but I have never had any active involvement in politics in any career or occupational sense. My perspective is that of a barrister working in the law.

  I have a civil practice, so I have no direct experience of criminal cases or immigration cases, which are two of the most newsworthy areas where the Human Rights Act has had an impact. I have, however, been in quite a lot of civil cases of quite varied kinds where the Human Rights Act and the Convention have been what we have been arguing about in court, and most of my views are based on that experience. I think that in terms of decisions in actual cases, the Human Rights Act has, in the main, been a thoroughly good thing and in most of the cases that I have been in where it has played a role, that role has been beneficial. There is one significant area where I do not think that is the case, and that is privacy cases.

  I think, however, that it is a great pity that the Human Rights Act is necessarily perceived to have based our rights on a charter of rights that comes from elsewhere. It may historically be the case that in the 1950s it was drafted by an Englishman, Maxwell-Fyfe, but that is an academic piece of information. The reality, particularly as it is interpreted as a living instrument by the courts, is that it is widely perceived as being from elsewhere. It is not perceived as being part of Britain's heritage. I have certainly come to the view in the last few years that it would be very attractive if we could have some sort of Bill of Rights—that might not be the title but it is the label that is generally used and is convenient to stick with—which much more directly reflects our own heritage. So my starting point is that I think that rights legislation is beneficial, because it is a prompt to judges to look at underlying principles when they are working out the meaning of legislation in deciding cases, but I would much prefer it if that set of underlying principles was seen to be one that we more directly owned.

  As to the European dimension, I think this is very difficult, and perhaps I should wait for some further questions to go further with it. The European Convention on Human Rights is a noble venture with wonderful ideals, but if you look at where we are now, the court, as you, Chairman, have already indicated, makes decisions that something or other is a human right that would not by the average Briton be regarded as a human right. In more common parlance, if we talk about human rights issues in the world, we are thinking of outrages in Zimbabwe. To be told—to take the current example that is uppermost in one's mind—that this country's penal policy, supported overwhelmingly by its legislators, is incompatible with human rights just strikes most Britons as nonsense. That is a problem, and if pressed -- I will not take too long in answering the first question, -- I will be happy to take that further.

Q37 Mr Chope: Anthony and I know each other from long ago, and we have both been members of the Conservative Party. Some people think that the purpose of this Commission is basically to give the two Coalition parties options at the end of 2012 whereby each of them will be able to come to a different conclusion as to what they want to put in their manifestos for the next election, based on the expert advice from their own party members on this Commission. Do you see that as being one possible objective? If the Conservative members of the Commission reach one conclusion and the Liberal Democrat members a different conclusion, none of the conclusions could be carried forward in legislation in this Parliament, but they could perhaps form on the basis of manifesto commitments by those respective parties subsequently. Do you see that as part of your mission?

Anthony Speaight: No, I don't see it as part of our mission. I can't speak as to whether it was a part of motivation behind the Commission, but I certainly don't see it as part of the mission. I don't think that is the way it is going to work. I think two things: firstly, I think the differences between different political parties are nothing like as great as is commonly supposed and, secondly, I think that there is a real change of mood. Let me take those two points in turn. Although the stock phrases used by different parties are very different—certainly the Labour Party feels pride in the Human Rights Act and the Conservative Party has tended only to say bad things about it—all three main political parties over the last few years have, in one way or another, talked about some sort of new Bill of Rights in this country. The domestic part of our task, in talking about a UK Bill of Rights, is entering territory where there is absolutely no reason why quite a degree of consensus should not emerge.

  The change of mood is in respect of the European dimension, and perhaps it is now a convenient moment to move on to this. We have recently heard people across the political spectrum saying something has to be done about the margin of appreciation. Our own member, Baroness Kennedy, said that in the House of Lords a couple of weeks ago. Lord Falconer said that in the House of Lords a few weeks ago. Several Members of Parliament said that in the prisoners voting debate in the House of Commons a few weeks ago. I don't want to say that it is a 100% viewpoint in the United Kingdom, but I think one could say that there is an emerging consensus in the United Kingdom that the European Court must allow a greater margin of appreciation than it has up to now if it is to continue to have the respect and legitimacy that it needs to do its work.

  If one reads the full text of the Interlaken Declaration, and then the Izmir Declaration from the next meeting that carried forward that discussion, buried deep in four or five pages of fairly platitudinous utterances one finds in each of them a statement of wish and aspiration for greater subsidiarity. So, although I suspect that many other member Governments in the Council of Europe countries are not viewing things quite in the way that we are, there is at least a glimmer there in the official declarations of recognition of this as an issue. That is why I say I think there is a new mood.

Q38 Mr Chope: I agree with what you said, but is there not a further problem? If the opposite of subsidiarity is harmonisation, the prospect of the European Union joining the Convention is going to bring the EU, which is interested in harmonisation and purports to speak on behalf of the 27 Members of the Council of Europe, into conflict in the European Court of Justice and the European Court of Human Rights? Do you see that as a problem ahead? Isn't the only way of avoiding that to repatriate to the United Kingdom Parliament control over our own rights legislation, so it would be interpreted by the courts, but then, if we disagreed with the court's interpretation, should Parliament so decide, they could reverse those judgments, as we do on a regular basis when the courts decide something with which Parliament disagrees? Isn't there a strong argument for saying that talk about subsidiarity is unrealistic, particularly because of the EU involvement in this, and that the best thing to do is to repatriate all this?

Anthony Speaight: I think with the EU joining on one side it is, I dare say, going to involve all sorts of difficulties that have not properly been thought through with potential conflict between the Strasbourg Court and the Luxembourg Court, but it can be argued that it is something to be welcomed because it would bring a layer of supervision above the EU and a layer of supervision enabling us to look at whether the EU is unintentionally infringing rights. But push that over to one side, because I think the main question that you ask brings one to the heart of what can be called the democratic deficit in the Convention arrangements.

Everywhere in the free world where there is a supreme court that enforces rights—and most democratic countries have such an arrangement, although we do not—whatever the supreme court may decide can always be trumped by the democratic institutions. It may involve enhanced majorities. It may involve not just an enhanced majority in the US Congress but two thirds of states voting for the same thing. It can be done and it sometimes is done. In the Council of Europe arrangements, there is nothing like that and in the short term this gives the Strasbourg Court enormous power. In the longer term, it may drain it of legitimacy. In my mind, the question of democratic deficit is one that is pulled on to the agenda once the margin of appreciation has reached the agenda, which it now has. As to what is to be done, one could bounce ideas around, but to the next question.

Q39 Mr Hamilton: Mr Speaight, I was intrigued by something you said in your opening remarks about the Human Rights Act being somehow from outside alien to this country, or at least having been founded or written outside the United Kingdom and not being part of our heritage. I wonder whether you could expand a little bit on what you believe is our heritage in terms of human rights or the rights of the citizens of this country. I just want to understand a bit more about where you are coming from.

Anthony Speaight: I think I said it was perceived as being from outside this country, and if I didn't say that I would like to correct my utterance now, because in fact it was written in large part by David Maxwell-Fyfe who was a British parliamentarian and lawyer.

  Start with the Magna Carta. In saying that, I am conscious that the Magna Carta has no part in Scotland's heritage, and one always has to be aware that the heritage of the United Kingdom is diverse. But the Magna Carta is extremely important to the heritage of England and Wales, both because of its place in our history and because of the way in which its wording has been echoed in similar charters all over the world.

  We had the Bill of Rights at the end of the 17th century. The Latin tag "habeas corpus" has a value. I say this as a non-criminal practitioner, not speaking in areas in which I have direct involvement, but if the debates about terrorist control, periods of detention and so on, instead of talking about rights under article so-and-so of the Convention, still used the tag "habeas corpus"—it is nothing to do with the Human Rights Act that that went, as it was ditched a decade or two previously—there is a resonance in that expression that echoes down the years so that people feel, "That is rather important and if there is any thought that that is being infringed I am rather bothered about it".

Q40 Mr Hamilton: Sorry to interrupt you, forgive my ignorance, but how far does the Human Rights Act, largely written, as you say, by a British parliamentarian, contradict those traditions and that heritage of this country?

Anthony Speaight: Not at all, and one reason why the project that we are embarked on seems to be one that has every possibility of success is because the wording of the European Convention is, in fact, a statement of our domestic heritage. There are extra things that I would like to see in that, but there is nothing in the rights of the European Convention that clashes in any way with the British heritage.

Q41 Mr Hamilton: Can I just ask you a little bit more about the work that you will be doing on the Bill of Rights? You can't predict what you are going to publish next year, but do you see a United Kingdom Bill of Rights as perhaps a precursor to, or in any way similar to, the possibility of a written constitution? You mentioned that judges needed some underlying principles behind the legislation that has been passed in this place; would the Bill of Rights do that?

Anthony Speaight: I suppose those who are keen on there being a single codified document containing the British constitution would see a Bill of Rights, or whatever it is ultimately called, as part of that but there is no reason why the existence of a UK charter of rights need lead to codification of other parts of the British constitution.

Q42 Mr Hamilton: Would it be desirable, or is that outside your brief?

Anthony Speaight: I am a sceptic about this. Some good friends of mine are great enthusiasts for a written constitution. My answer to them is the British Constitution is written down; it is just written down in lots of different places.

Mr Hamilton: Thank you. A very good answer.

Q43 Mr Turner: Could I ask you about subsidiarity? Is it not the case that subsidiarity comes from up there and delivers something down here whereas what we believe in, or quite a lot of us believe anyway, is that rights should go up rather than down?

Anthony Speaight: That sounds to me like an essay question. I think I would unhesitatingly want to endorse the proposition that rights are something that people feel and that any document that sets out rights reflects a sort of unspoken consensus in a society as to the inherent value of each human individual in it. Human societies being what they are there need to be some sort of controls, which can only come from above. All law is for the benefit of the weak, because the more powerful people are the more law is a nuisance to them, so the enforcement of rights will necessarily come from some institutions at the top.

Q44 Mr Turner: What I am distinguishing, I think, are between European and English or British.

Anthony Speaight: That leads one to the extraordinarily difficult issue. At the risk of putting my head in a noose, I see a looming crisis in which there may well be a classic collision between an irresistible force and an immovable object over the prisoners voting issue. At the beginning of this year, as a detached observer, I expected that what would happen would be that the United Kingdom would enact some change to its penal policy, maybe saying prisoners who are in prison for short sentences could vote or maybe—and this seemed to me the more attractive option—enacting so that the mere fact of imprisonment would not deprive a person of the right to vote but that at the same time as passing a sentence of imprisonment a judge would be required to decide one way or the other whether there was also a restriction on voting, in rather the same way as if it is a driving offence that calls one to consider a driving ban or, if it is a certain sort of offence, prohibition from being a company director. However, that is not what has happened so far, and instead we had the House of Commons debate and vote.

I then thought the next thing that would happen would be that the European Court would realise that it had a looming political problem and that the UK Government's very helpful request for the matter to go to the Grand Chamber would lead to it going there for consideration; absolutely the contrary. Within only a few weeks of the request for it to go to the Grand Chamber, the request was not only turned down but the court announced something, which I am told nobody can recall it ever saying before, and that is that it was announcing a time limit of a relatively short period of six months for the United Kingdom to produce legislative proposals.

  So the court was talking very tough, although in the small print, it did two things, which may not provoke a crisis. One is it decided there will be no compensation order for prisoners at the moment and, secondly, it dismissed all the pending cases by prisoners on the grounds that the court had already made a decision. However, what will happen at the end of the six months, which will be on 11 October? There is a looming crisis.

Q45 Mr Turner: I am not quite sure where that gets us in terms of a decision but never mind, let's move on. Can I just quote you something? You said in Human Rights Act - Legal Pathways, on page 5, "Sections 1(2) and 15 of the Human Rights Act create, on one reading, the impression that a British Minister can make fresh reservations." You then went on to say, "That is incorrect. It is now too late." I don't quite see what justification you have to write, "That is incorrect", and I would like to know a bit more about it.

Anthony Speaight: Gosh, it is several years since I wrote that, and I have completely forgotten that part of the document, I am afraid. I don't, I must say, see how the UK can now make reservations from the Convention. It could withdraw by giving notice. It can make derogations by the national emergency clause. What it can do, however, and what could be done in a UK Bill of Rights is some tweaking of rights. In the Human Rights Act, there was one attempt by Parliament to tweak by section 12, which in effect said where there is a conflict between privacy and free speech under articles 8 and 10, free speech is very, very important. That really was the message of section 12. It was saying if the seesaw is in any way like that, let the free speech end win.

In my view the English judges have simply ignored that, so tweaking may not work very well. But that is a precedent showing that tweaking can be done, and it certainly is a possibility in a UK Bill of Rights that extra text can be added to a repeat of the wording of the Convention, which would give some indications as to how in new situations these rights were to be implemented.

Q46 Tristram Hunt: Just to press you on this earlier document that was produced—I didn't realise it was so long ago—in your favoured outcome, is it right to say as on page 25, "The UK does not withdraw from the European Convention on Human Rights Treaty but the Westminster Parliament repeals the Human Rights Act in its present form and enacts in its place a second Bill of Rights"?

Anthony Speaight: That is certainly a possibility, yes.

Q47 Tristram Hunt: Would that be your favoured option?

Anthony Speaight: Subject to all the qualifications about any preliminary view, my favoured option would be that, that in place of the Human Rights Act there would be a new statute—let's call it a UK Bill of Rights for want of a better label—which would set out as the rights every single word that is in the European Convention but also some extra things, jury trial being one of my candidates for addition.

Q48 Tristram Hunt: To your mind, would that have the dual purpose both of, as it were, embedding the European Convention in a sort of British story of rights and freedoms and heritage but then also providing some nuance and direction to current usage?

Anthony Speaight: Yes.

Q49 Mr Chope: Can I ask Anthony whether he thinks one of the biggest conflicts is between what might be described as Continental jurisprudence and British jurisprudence? We have always as Brits put a high premium on fairness and equity, the legal term for fairness, whereas the Continentals don't seem to have done. The biggest political problem seems to arise when people seek justice under the European Convention where they themselves have contributed to their own problems, perhaps, for example, an immigrant who fails to declare at the first opportunity that he is an asylum seeker—maybe somebody who has committed as an asylum seeker a crime but then is told under the interpretation of the Convention that, although he has committed a crime in the country to which he doesn't belong, he can't be sent back to the country from which he emanates because he might then be subject to the laws of that country and maltreated.

One of the principles of British law has always been that if you want to get help from the courts you must come with clean hands. Do you see that that is one of the difficulties that there is at the moment and perhaps the concept of equity could be written into a Bill of Rights so that people would only be able to get justice if they themselves had acted fairly and reasonably, by analogy perhaps with the law of self defence, so that you can't expect somebody who hits you to be penalised if it was indeed you who hit them first?

Anthony Speaight: As to the last part of the question and those ideas, I would like to say that is something on the agenda for consideration, without going any further as to what I think about it. I think one has to remember—and this is my second observation—that the great thing about rights is that everybody has them. I may be a paedophile but I am still entitled to a fair trial. I may be a terrorist but I should not be tortured. I personally am more inclined towards a more minimalist statement of rights than one that goes in the direction of environmental rights and socioeconomic rights, because the further you go the more they have to be qualified in every way. I am more attracted by rights that so far as possible are statements of things that everybody is always entitled to.

  As for how the right not to be tortured is dealt with in cases like Chahal, as I say, it is a topic for consideration but I prefer not to be drawn on that now. I would, however, like to say one other thing in response to what you raise, and this is to the legal traditions found in cases in mainland countries. One of the things that I hope will be very seriously considered in drafting any UK Bill of Rights is giving an express statement that English courts can and should take account of decisions on rights, expressed in the same or similar terms to our rights, by courts in other common law jurisdictions: Commonwealth countries and the United States of America. Courts do do this from time to time so it would not be asking judges to do anything they hate doing. As everybody in the law knows, common law jurisdiction cases are quite often referred to in English judgements, but there is very little general public awareness of the fact that our country's law is part of an international family of law, which has grown up from us. Whereas we often recognise that the English language is one of our advantages in our globalised world, we very rarely seem to realise that our common law is a huge asset because we share a legal culture with the United States and with Canada; three of the G7 share the same legal culture. Move on to the BRIC countries: India, same culture; China even. Well, the Hong Kong area of China, it is us again. There is no other country in Europe that has any comparable advantage and I hope that this process might just shine a little bit more light on that.

Q50 Sheila Gilmore: I raised the issue with Sir Leigh earlier about the different parts of the UK and how you see perhaps this progressing through your process, because there are some clear differences, both in the legal traditions, and perhaps it is so controversial that it is important to get this right from the outset. How would you see the Commission setting about that?

Anthony Speaight: Firstly, it is extremely important to be aware that the Scottish legal tradition is distinct. I hope I have already indicated that. I think that the devolution dimension is one of the most difficult areas that we are going to have to explore. I am not sure that it has been mentioned yet this morning that the Government announced an intention to appoint an advisory panel, or rather an intention that the devolved legislatures should appoint members to an advisory panel, lawyers rather than politicians, to provide advice to the Commission on legal and technical aspects of devolution matters. So that is an area of input that is coming, although so far as we are aware, no appointments have yet been made by devolved legislatures. I think Sir Leigh indicated that certainly one of the first plans we made is to visit Cardiff, Edinburgh and Belfast. I think it is an area of our work that will take a lot of time, and particularly the Scottish dimension should.

Q51 Sheila Gilmore: Do you think there is anything now that makes the concept of a UK Bill of Rights untenable?

Anthony Speaight: Does it make it untenable? I hope it won't make it untenable. The Human Rights Act is a UK statute, so I don't see any a priori reason why a UK Bill of Rights should be untenable, but I do certainly agree that the devolution dimension needs a great deal of thought.

Chair: Mr Speaight, thank you so much for coming this morning. I think one of the temptations in having an expert witness is to raise all those issues that you have in the back of your head and you finally have someone in front of you who has a view. I am desperately hanging on to not asking you about the First Amendment right to tackle the questions about privacy. No doubt you will be discussing that in your deliberations on the Commission, so I will refrain. I am looking forward to the informal session maybe that we can have and raise some of those issues with you. Thank you so much for your time. You have been most generous. I hope we can see you again, either here or perhaps in a more convivial atmosphere, as we interact with the Commission and its very, very valuable work. Thank you so much.

Anthony Speaight: Thank you very much.

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