Joint Committee on Human Rights Written Evidence

14.  Memorandum from Carol Harlow, Emeritus Professor of Law, London School of Economics

1.   Is A British Bill of Rights Needed?

  Britain already has a Bill of Rights: the European Convention. To add something further would in all probability merely be confusing, especially as the European Union has approved a further text, which although not binding is likely to prove influential: the ill conceived and badly drafted Charter of Fundamental Rights and Freedoms (ECFR).

  The main purpose of a specifically British Bill of Rights would be to provide "ownership" of the document, which would add something positive to the current debate about the nature of British citizenship. Since the content would be controversial (see below) the effects might, however, be less positive than anticipated.

  A further important function for a British Bill of Rights would be to act as a defence against incursions by transnational jurisdictions. A previous Lord Chancellor once argued that the Strasbourg Court misunderstood and was unsympathetic towards the unwritten common law. The absence in the United Kingdom of a Bill of Rights at a time when the Convention was not incorporated created a suspicion that the United Kingdom did not recognise human rights. Steps were taken (of which arguably the Human Rights Act was one) to remedy this problem. This was a strong underlying argument for the Human Rights Act. A similar argument is mounted in respect of Luxembourg, to the effect that the German Constitutional Court, with firm footing in the widely respected Basic Law has been able to argue with the European Court of Justice and has advanced the cause of human rights (and German law) much more effectively than the British House of Lords, with only a tenuous foothold in an unwritten constitution and common law. A British Bill of Rights would in this way strengthen the position of the United Kingdom before international courts.

  On the other hand, there is a very real danger in a proliferation of texts on human rights (and more especially of jurisdictions concerned to enhance their competence) that protection will be watered down because signatories and the judiciary will be able to "cherry pick" between the texts: see notably Dame Rosalyn Higgins "The United Nations: Some Questions of Integrity" (1989) 52 Modern Law Review 1. A similar argument in respect of the ECFR was advanced prior to acceptance by Professor Giorgio Gaja, an international lawyer of repute: G GAJA, "New Instruments and Institutions for Enhancing the Protection of Human Rights in Europe?" in P ALSTON (ed), The European Union and Human Rights, Oxford University Press, 1999.

  If we were to add a further text to what we already have, the United Kingdom would be subject to the ICCR and specific UN conventions; the European Convention as implemented by the Human Rights Act and interpreted by the ECtHR and domestic courts; the ECFR as interpreted in binding judgements of the ECJ; and a British Bill of Rights as interpreted by our Supreme Court. There is considerable variance between the texts.

2.   What Should be the Content of a British Bill of Rights?

  This is very much a matter of opinion and is likely to provoke considerable controversy. There are two main bodies of opinion and two main fields of controversy:

(a)  Economic and social rights:

  Those who want to see greater protection of economic and social rights argue that these are the rights with which the public, when consulted by opinion polling, actually engages. A right to healthcare, for example, would be very widely supported, though arguably the constraints that such a right might impose would not be widely understood.

  Opponents argue that such a move would, on the one hand, greatly curtail scope for political action by government and, on the other, bring judges more directly into policymaking. Several recent cases lend support to their argument, notably the Herceptin case (R(Rogers) v Swindon NHA [2006] EWCA Civ 392) and the Watts case in the Court of Justice (Case C-372/04 R(Yvonne Watts) v Bedford Primary Care Trust and Secretary of State for Health [2006] ECR I-4325), which is one of a line of cases imposing an obligation on Member States to pay in certain circumstances for citizens to travel for purposes of obtaining healthcare in other European Member States. Whether or not this is desirable is not the point; the point is whether or not the policy should be introduced by judges.

(b)  Civil liberties, especially those traditional liberties recognised by the common law:

  For many, the main objective of a British Bill of Rights should be to stop the erosion of "traditional" civil liberties, which they see as a feature of government in the era of supranational terrorism. It is widely felt that freedom from arrest, stop-and-search and detention without trial, freedom of association and expression of political opinion are not strongly enough protected by the unwritten common law and cannot be protected by Parliament in face of a determined executive. While the European Convention does cover much of this subject area, it is felt to give insufficient protection to non-citizens and where it does give protection, as in the widely publicised A cases: (A(FC) and others v Home Secretary [2004] UKHL 56; A(FC) and others v Home Secretary [2005] UKHL 75), Chahal v United Kingdom (1997) 23 EHRR 27 and the recent House of Lords decision on extra-territorial application of the Convention (Al-Skeini v Ministry of Defence [2007] UKHL 26), it is too easy for politicians to present the law as "foreign" interference with British policies and institutions. The very strong argument presented by Lord Hoffmann in the first two cases that the rights involved spring not only from the Convention but primarily from the common law is at the same time a strong argument for a British Bill of Rights as a more visible codification of common law rights. But what these rights actually amount to is less than clear. Many see the main objective of a British Bill of Rights as being both to "domesticate" this body of due process law and formulate it.

  My personal opinion is that protection of the rights of suspects and the rights of the defence has been eroded rather than merely updated (as successive Home Secretaries suggest) and that further protection is necessary. I am less clear as to how this could best be done. As matters stand, it is easy to present the case for procedural due process rights first as a self-interested preoccupation of lawyers and secondly as something alien to British law imposed on us by Strasbourg. Protection would undoubtedly be enhanced if such rights could find their way into a British Bill of Rights. This step would, for example, have precluded ongoing arguments over the retention/abolition of jury trial and possibly have prevented statutory dilution of the common law "right to silence'. As argued later, however, I cannot see much scope for consensus on these issues.

  On the other hand, there is much evidence that this area of civil liberties law is not particularly cherished by the public or the main political parties. Indeed, the present debate over a British Bill of Rights began with statements from both party leaders (Blair and Cameron) to the effect that a British Bill of Rights was necessary precisely to curtail these rights and more particularly to overturn the decision of the Strasbourg Court in Chahal. As was pointed out at the time, to cut down on the protections of the Convention would mean either wide derogations (not necessarily easily achieved) or withdrawal from the Convention, with obvious negative repercussions on the reputation of the UK. This suggests that, on the one hand, it would be difficult to insert new and enhanced guarantees into a British Bill of Rights but, on the other, that the Convention rights are a useful "floor" with which it would be difficult to dispense. It might indeed be easier to upgrade due process rights via Strasbourg than through a British Bill of Rights.

  Rights and freedoms contained in legislation, notably those to which the Committee makes reference such as freedom of information; data protection; and discrimination, should certainly find a place in a Bill of Rights. It has to be borne in mind, however, that we are not entirely free to regulate in these areas. Much anti-discrimination law, for example, comes from the European Union and has to be negotiated at that level.

  We are also bound by the Data Protection Directive (Regulation No 45/2001/EC of the European Parliament and Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [2001] OJ L/8, p.1) and about to be bound by the Prum Convention, which contains inadequate protections for data held on EU police and judicial databases, and the EU freedom of information legislation (Regulation EC 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission Documents, 2001 OJ L 145/43). We are only free to regulate these areas to the limited extent that we are permitted to take action by the Commission and Court of Justice (see, eg, Case C-105/03 Criminal Proceedings against Pupino [2005] ECR I-5285.) there is a very strong case for topping up protection and access to information rights through a British Bill of Rights. Competence in the areas is shared; accountability for policy-making is limited; and the Court of Justice has limited jurisdiction. A British Bill of Rights would certainly help to underwrite the rights of British citizens in the sensitive matters of data protection and due process in criminal trials.

  We should, however, realise that much of our most progressive legislation, such as the Abortion Act, Race Relations Acts or Equal Opportunities legislation, might not have been possible in the context of a Bill of Rights: compare for example, the protracted battles fought over abortion and the complexity of the case law in the United States Supreme Court; or the negative attitude to abortion law reform shown by the German Constitutional Court. These examples do not suggest that "rights" are "better" protected under a Bill of Rights though they do raise the perennial question "whose rights?" They merely demonstrate a transfer of power in each case from a representative and reforming legislature to "unelected judges'.

  I would like to make specific reference to international treaties. To many it seems intolerable that the state should set its name to treaties that it is prepared not properly to implement or even to violate (arguments set out cogently by Philippe Sands in Lawless World). There is, however, an equally strong argument that international treaties have an important normative function. They set standards to which peoples aspire even when they cannot yet be reached. It is not always appropriate therefore to crystallise them as, or grant them the status of, rights. There is too a danger of trivialisation through over-inclusiveness: "when everyone is somebody, then no one's anybody'. There is also some evidence to suggest that, where treaties contain provisions making them legally enforceable, states tend to opt out of these procedural provisions or fail altogether to ratify. Domesticating treaty obligations by giving them the status of "rights" might in the end prove counter-productive, especially for classes of person seeking entry to protected status (eg, in the area of discrimination, older persons).

  In sum, I should regret a change from a "dualist" legal system or any provision such as Article 55 of the French Constitution, which incorporates international law directly into the national legal order. Thought needs to be given as to when the provisions of international treaties are incorporated into the domestic legal system. It follows that a domestic Bill of Rights would, like other UK legislation, take precedence in domestic courts over international treaties other than the Convention, for which the Human Rights Act makes special arrangements.

3.   Constitutional Relationships

  Although in theory a Bill of Rights strengthens the hand of the judiciary against the executive, in practice much depends on culture and the relative power of the two institutions. Whether the judges possess a "strike down" power is also a significant factor (see, eg, per Lord Steyn in Jackson v Attorney General [2005] UKHL 56). This is certainly the Canadian experience.

  In the British constitution, the primacy of parliamentary legislation necessarily raises the question of entrenchment, the legal niceties of which are too complex to deal with in this short response. Assuming, however, that a Bill of Rights could be entrenched, would this really be desirable? Serious problems arise with updating entrenched Bills of Rights—such as the argument in the United States over "gun law". (See T Macklem, "Entrenching Bills of Rights" (2006) 26 Oxford Journal of Legal Studies 107).

  I have already referred to the argument that the European Convention is "outdated"; it is certainly very weak in Article 14, which deals with anti-discrimination. Changing the Convention would not be easy; topping it up through the medium of domestic law is much easier as we can see from the experience of anti-discrimination legislation, easily amended to take inside (eg) religious discrimination or with abortion law to take on board medical progress. To put this differently, the common law method combines with parliamentary sovereignty to make law much easier to update. The argument of those who favour an entrenched or semi-entrenched Bill of Rights is, of course, precisely that rights may be swept away too easily, as they have been recently in a series of criminal justice and public order measures; to put this differently, updating is not always what it seems. Which risk can more safely be taken is largely a matter of opinion. (Consider the debate between Lord Lester of Herne Hill and Professor Keith Ewing: K Ewing, "The Futility of the Human Rights Act" [2004] Public Law 829; A. Lester, "The Utility of the Human Rights Act: A Reply to Keith Ewing" [2005] PL 249).

  What appears to be emerging in the common law countries of Australia, New Zealand and the United Kingdom is a more nuanced position in which legislature, courts and administration all feel obligations and join in the attempt to strike appropriate balances between individual human rights protection and interests of the collectivity. A useful academic literature on the subject is beginning to emerge, discussing the respective roles of the institutions and, in particular, the strengthened role of parliamentary committees, particularly the Joint Committee and the House of Commons and Lords Constitutional Committees. (See: D Nicol, "Law and Politics after the Human Rights Act" [2006] Public Law 722; D. Feldman, "The Impact of Human Rights on the UK Legislative Process', (2004) 25 Statute Law Review 91; J Hiebert, "Parliamentary Bills of Rights: An Alternative Model?" (2006) 69 Modern Law Review 7 and "Interpreting a Bill of Rights: The Importance of Legislative Rights Review" (2005) 35 British Journal of Political Studies 235 and "A Hybrid-Approach to Protect Rights? An Argument in Favour of Supplementing Canadian Judicial Review with Australia's Model of Parliamentary Scrutiny" (1998) 26 Federal Law Review 115; C. Evans and S. Evans, "Legislative Scrutiny Committees and Parliamentary Conceptions of Human Rights" [2006] Public Law 785. Danny Nicol has argued that Parliament, arguably the most representative forum for the discussion of human rights, deserves its own "voice" independent from government. Arguably, recent institutional changes, including the emergence of new Select Committees is bringing about this effect. The number of committees that now scrutinise draft legislation with human rights in mind is increasing.

  This "dialogue model" of human rights is the one which I am firmly convinced best fits common law countries. We have a powerful media and civil society organisations are already able to join in the media debate and by giving evidence to select committees. It is very desirable that new machinery should be set in place to encourage ordinary people to join in, if only electronically, through "blogs" and so on (see Report of PASC Public Participation: Issues and Innovations 6th Report of 2000/2001, HC 373). The taking of evidence from the public by parliamentary general committees is another step forward.

4.   The Human Rights Act and other rights texts, including a British Bill of Rights

  As indicated earlier, the primary purpose of a Bill of Rights would be to make the rights more visible and allow them to be "owned.".

  An alternative worth considering is to bring the substantive rights protected into the text of the Human Rights Act. This simple change would make them more visible and allow a greater sense of "ownership" to be developed. However, since any attempt to make such a change would almost certainly bring into issue the text of the Convention, often argued to be old-fashioned, outdated and overly weighted towards civil liberties, it may be wiser to let sleeping dogs lie. Change might just as easily provide an opportunity to weaken the protection of civil liberties as strengthen it. Arguments formulated in terms of human rights protection are already being advanced for weakening the protection of unpopular minorities, notably prisoners, suspects, Roma gypsies. To open the question of substantive rights would give these arguments a new forum in which they might easily prevail. This could, of course, be seen as an advantage, as a full debate could occur of issues that at present crop up on an ad hoc basis, and may even pass entirely un-debated or even unnoticed. The outcome might then be seen as representing a negotiated consensus to which for the time being governments might feel obliged to adhere.

  More fundamentally, what should that forum be? The present legislation originated in the manifesto of a political party and followed the normal pattern of parliamentary debate and legislation. Whether this would have been thought sufficient had substantive rights been in issue is very questionable: the current dispute, short-circuited by Downing Street, over a referendum for an EU Constitution or Constitutional Treaty suggests otherwise. Would a document drafted by a parliamentary committee, such as the Human rights committee, or a group of committees, possess sufficient legitimacy, even if it/they could agree? A Royal Commission is another and more magisterial traditional answer, giving an impression of greater objectivity. Royal Commissions have been used to handle similar issues, as for example, the closely related issue of police powers. We should, however, bear in mind that the Philips Commission on Criminal Procedure, Cmnd. 8092, 1981, did not manage to achieve consensus.

  The matter is now complicated by devolution. Human rights are not, of course, a devolved issue, a division of functions that perhaps remains largely uncontroversial so long as the matter is governed by the Convention and our shared heritage in that respect. Were this to change and more particularly if a proposed new text were to penetrate deeply into economic and social rights, devolved areas would be involved. A British Bill of Rights might then become Bills of Rights for Scotland, Wales and England and Northern Ireland; there is of course already a move for devolution coming from the Northern Ireland Human Rights Commission, interested in promoting a regional Bill of Rights. Whether further regionalisation is desirable and what the relationship of regional texts could be with the ECHR and Strasbourg courts are very difficult and delicate questions.

  In conclusion, I believe that the Human Rights Act is working relatively well and should be left to "bed in". It is by and large an adequate basis for the protection of human rights in what is inherently a "political constitution'. There are of course grave weaknesses but where the weaknesses lie is a contentious issue. In recent years, it has been the areas of pre-trial and trial procedure, sentencing and treatment of prisoners and asylum-seekers that have stimulated the loudest calls for reform: but whether the liberties in issue are to be maintained, extended, shored up or curtailed are hotly contested and very political questions. Human rights are not written in stone. They are as controversial as any other area of politics and have, if they are to be truly effective, to be fought for in the same way as all political and social rights. In our political system, discussion tends to crystallise around projected laws or focus on high visibility court cases. Whether a Bill of Rights would change this situation is, I feel, unlikely.

20 June 2007

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