Joint Committee On Human Rights Minutes of Evidence

Annex B




  Thank you Sr Marti and thank you to both EL ILUSTRE COLEGIO DE ABOGADOS DE MADRID and the British Council for inviting me to speak here this evening. I have listened with great interest as ever to Francesca Klug, and to Sr Mugica and Sr Acebes and I give thanks to the translators who have enabled me to appreciate my hosts' addresses without constant reference to my Spanish dictionary!

  This is my first opportunity to talk about the impact of the Act on the British legal system since it came into force in October last year. And the picture emerging is: so far so good. As I predicted, the prophets of doom are being proved wrong: the heavens haven't fallen in and there is no chaos in the courts. On the contrary, the early indications are that the British judicial system is matching up very well to the demands placed upon it by the Act. And before I substantiate that claim, let me explain why it is no accident. The smooth incorporation of the ECHR into British law is the result both of an intelligently drafted Act and two years of careful preparation by the Government and the courts.

  Looking back, our 50 year long failure to incorporate the Convention into our domestic law now seems extraordinary compared with the crucial role that Britain played in its conception and drafting. Our failure was due to a historic hostility to incorporation based on two misconceptions. First, an outdated—and exaggerated—view of the efficacy of political accountability as a means of securing the protection of fundamental rights. Secondly, a fear of undermining Parliamentary Sovereignty and transferring power to unelected Judges.

  In Britain, traditionally, it was Parliament, not a written constitution, which protected individual rights, through the political mechanisms of Ministerial Responsibility and Parliamentary scrutiny. The former Prime Minister, John Major, famously remarked, in a major speech opposing a Bill of Rights for Britain—that "we have no need for a Bill of Rights because we have freedom". Now while it is true that British citizens have a residual freedom to do that which is not prohibited by law, Mr Major overlooked the fact that Parliament has not been strong enough in the face of the legislative and executive activity associated with modern governance, both of which are well capable of trampling on basic human rights.

  So we celebrate incorporation of the Convention. It did, however, present us with a critical issue: how to reconcile effective rights protection with the constitutional and Parliamentary nature of the governance of the United Kingdom. The balancing of these is central to the Human Rights Act, which dramatically reduces the political capacity of Parliament and Government to enact legislation which violates fundamental rights. Parliament is still legally sovereign and the courts must faithfully apply its enactments—thus Constitutional propriety has been observed. We have introduced, however, a limited form of constitutional review which is fully able to co-exist with our traditional theory of Parliamentary Sovereignty, and let me explain how.

  Under the Act, all public authorities are under a wholly new obligation to respect the rights enshrined in the Convention as they discharge their functions, and the courts are under a strong duty to interpret legislation, wherever possible, consistently with the Convention. Crucially, however, when national legislation just cannot be interpreted in this way—and in the overwhelming majority of cases I believe it will be—the judges will not have the power simply to set aside Parliamentary legislation. That would be inconsistent with our doctrine of Parliamentary Sovereignty. Instead, the higher courts are now permitted to make a "Declaration of Incompatibility" which will trigger a fast-track legislative procedure under which the Government may, subject to Parliamentary approval, amend the offending legislation. So, although the power of the courts is formally restricted to declaring the incompatibility of legislation, once this power is viewed in substantive terms it comes closer in practice to constitutional review than may at first appear. In addition, under the Act, all new legislation to be introduced to our Parliament has to be accompanied by a Ministerial Certificate of its Compatibility with the Convention rights. So, if Ministers want Parliament to pass non-compliant legislation, they will have to stand up in Parliament and explain why. When Ministers do issue a Certificate of Compatibility but the higher courts hold that the Minister was wrong and the legislation is not compatible, the Parliamentary pressure on the Minister to remedy the defect under the fast-track procedure is plain.

  I want to emphasise that most of our laws were already compliant; that Britain has as great a respect for human rights as any of our European neighbours; and that our laws and procedures generally reflect that. But incorporation of the Convention gives us the opportunity and the incentive to look again at how successful we were in protecting fundamental rights. In the run up to implementation all Government Departments examined their legislation, policies, practices and procedures to ensure compliance. They also worked with their non-departmental public bodies, including some semi-public bodies, to ensure that they too were prepared. As a result training programmes were refined and improvements made to policy, practice and procedure.

  So, Declarations of incompatibility by the higher courts, calling for legislative change, I believe, will be, very rare. So far there has been only one, and the Government is appealing that to our Supreme Court, the House of Lords. What we can expect more of, however—and I know there are two opinions on this—is radical interpretation of legislation by the courts. This will sometimes be necessary in order to achieve compatibility with the Convention and will, in some cases, require practice and procedures to change to bring them into line with legislation radically interpreted in this way. But we passed the Act because we want a culture of respect for human rights and responsibilities to become embedded across our society. And so as a Government we do not see successful Human Rights challenges as "defeats" for the Government. On the contrary, they manifest a new partnership between Parliament, Government and the Judiciary. The working out of the Act is not an obstacle to good administration, but an essential element in the path to achieving it. Successful challenges are to be seen as steps on the road to ensuring that our laws, our institutions and our procedures are really compliant. Those steps help us to make rights real. So when a Scottish court held that the office of temporary Sheriff, a temporary Judge in Scotland, did not comply with Article 6, I saw it as an opportunity to put all of our temporary judicial appointments on a basis which better secures their independence. And I achieved this administratively, without the need for new legislation so that we now have better protection for the judicial independence of part time judges.

  Some feared the Act would transfer too much power from an elected Parliament to the judiciary. But the Act specifically provides that Judges cannot overrule Parliament. They can point the way forward and help develop the culture of rights and responsibilities that we all want to see. The senior Law Lord, Lord Bingham recently said:

    "Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them."

  Nevertheless, the judiciary has a major role to play in the successful implementation of the Act, and it had the benefit of the largest ever programme of judicial training in Britain. This ensured that all full and part time Judges have been trained, as well as the 30,000 Lay Magistrates in Britain and their legal advisers. And all full time Judges also now have access to an Internet-based system allowing quick exchange of information on developing Strasbourg and Convention law. And, the Judges are, as predicted, dealing with the Human Rights cases brought before them in a way which is sensible and well balanced.

  Just prior to the Act coming into force, our Court of Appeal criticised lawyers for raising unmeritorious Human Rights points. And more recently the Privy Council, part of our highest court, gave a salutary judgement on a section of our Road Traffic Act. The provision in question requires individuals who own motor cars to identify the driver to the police—even if this leads them to admit they were driving at the time that an offence was committed. Overturning the decision of the High Court of Justiciary in Scotland, the Privy Council held that the provision did not breach Article 6(1) of the Convention since it is a proportionate response to the serious social problem of drink driving. The Courts have also rejected a claim from tenants evicted from a public housing estate for causing nuisance to their neighbours. The tenants claimed that the eviction breached their right to privacy and a family life; but the court balanced their rights against the Article 8 rights of all the other families on the estate. So these cases reflect how the Convention has been incorporated into British law in a way that respects the interests of society as well as those of individual citizens.

  So let me substantiate my claim that the impact of the Act has been much as the Government expected: that our Court system is matching up with remarkable efficiency to the demands placed on it by the Act. One of our most respected newspapers, the Financial Times, recently wrote; and I confess I found it gratifying reading:

    "The Human Rights Act, which became law in October, was condemned by many who claimed it would create a legal nightmare—jamming the courts with worthless cases and rendering centuries-old British traditions illegal. But such predictions have proved to be wide of the mark. Judges have shown a commendable willingness to throw out bad cases while expediting more serious claims."

  And this is borne out by the facts: although there has been a small number of headline cases in the higher courts, there has been no significant impact on the length or complexity of hearings. The Criminal Division of our Court of Appeal is taking slightly longer to dispose of cases in order to set definitive precedent. But there is no evidence that the volume of either criminal appeals or applications for judicial review has increased significantly. And both the Criminal Division and the Administrative Courts have been very effective in their use of the fast tracking system to prioritise the most important cases. Very few cases involving human rights points have actually been brought before our lower courts. And in the first three months in the Crown Court, human rights issues were raised in less than 0.5 per cent of cases. In Scotland, where the Act has had longer to bed down, although cases have tended to take longer where human rights arguments have been raised, there has been no significant increase in delays as a result.

  So the overall impression emerging is that Convention arguments are mostly being used to add to, bolster or put a fresh slant on pre-existing lines of challenge. We learned lessons from the New Zealand experience, where the legislation was implemented probably too quickly after enactment, leaving very little time to prepare the judiciary or the court system. And so the wisdom of our thorough advance preparation—we left two years between enactment and implementation—has been borne out by the way our 3,500 judges and 30,000 lay magistrates have ensured the successful implementation of the Act.

  I believe the Human Rights Act will prove a major legislative monument of this British Government. With its implementation on 2 October 2000, a historic change was brought about in Britain. For 50 years British people had to go to Strasbourg to enforce their Convention rights—an expensive and time consuming road which few took in practice. The Act allows British people to enforce their Convention rights in British Courts with British Judges, sensitive to the needs and standards of our administration. People in every other Western European country have had these rights in their own courts for years and I believe their societies have only benefited.

  Spain, unlike Britain, has a written constitution which incorporates the Convention into domestic law I believe implicitly. I understand that many of the rights set out in your Constitution were drafted so as to mirror directly the rights set out in the Convention. As a result, historically, your Parliament has probably sought Convention compliance more actively than ours. On the one hand, it takes advice from the Council of State on the Convention implications of proposed legislation. On the other, it has quite commendably amended existing laws which are inconsistent with the Convention, even in direct response to European Court judgements against nations other than Spain. Of particular interest to Britain is the way in which our Constitutional Court has the power, unlike our courts, to strike down legislation which it deems incompatible with the Convention. This suggests a closer relationship with the United States doctrine of Constitutional Supremacy than the British doctrine of Parliamentary Supremacy. It is a valuable exercise to compare how different countries give effect to Convention rights. Generally, in our domestic courts there is now greater study both of foreign law and of legal concepts born in other jurisdictions. So its with great pleasure that I have been able to discuss today with Senor Acebes and Senor Delgado the setting up of a high level judicial exchange between our two countries. And as a result I hope later in the year, a team of Spanish Judges will meet a team of British Judges in London for a series of discussions on human rights. I have no doubt we can learn from each other's experiences and I look forward to hearing the outcome of these discussions. I hope that we will, in this way, be creating a new link between Spain and the United Kingdom which will flourish and endure.

  In a democracy it is of course right that the majority should govern. But that is precisely why it is also right that the human rights of individuals and minorities require protection by law. The incorporation of the European Convention into British law will deliver a modern reconciliation of the inevitable tension between the democratic right of the majority to exercise political power and the democratic need of individuals and minorities to have their human rights secured.

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