Joint Committee on Human Rights Minutes of Evidence


Examination of Witnesses (Questions 1-19)

PROFESSOR SANDRA FREDMAN, MR MARTIN HOWE QC AND PROFESSOR FRANCESCA KLUG

3 DECEMBER 2007

  Q1 Chairman: Good afternoon, everybody. This is our first formal evidence session in our new inquiry into the issue of a British Bill of Rights. We are joined by Professor Sandra Fredman, Professor in Law and Fellow of Exeter College, Oxford; Martin Howe QC, who is a member of the Conservative Party's Policy Commission on a Bill of Rights, but I understand he is here in a personal capacity; Professor Francesca Klug, Professorial Research Fellow, Centre for the Study of Human Rights at the LSE. So welcome to you all. Does any of you want to make a short opening statement or shall we go straight in? Then perhaps I could start with you, Francesca. Is a British Bill of Rights needed?

  Professor Klug: Well, Thomas Jefferson, I think we all know who he was, said that a Bill of Rights is what the people are entitled to against every government on earth. I think he was probably right, but it is slightly more complicated here because we have, I would put it to you, at least one if not two Bills of Rights already on the statute book. Leaving the 1689 Bill of Rights to the side, when the Human Rights Act was introduced, both the then Home Secretary and Members of the Opposition recognised the Human Rights Act as our Bill of Rights, and the academic literature has described it in those terms ever since, including Professor Philip Alston, who is probably the world expert on Bills of Rights. So on the face of it, the question is whether we need a better or stronger Bill of Rights, rather than whether we need a Bill of Rights. In my view, the answer to that question is yes, and there are three reasons for that. The first could be summed up, I think, by the fact that the mirror principle has now entered the jurisprudence of our domestic courts. I shall explain what I mean. Lady Justice Arden described this as the self-denying ordinance that the domestic courts have taken upon themselves- with no requirement to do so under the statute- whereby they are now interpreting the Human Rights Act as no more and no less than what the courts are saying in Strasbourg. That is what I mean by the mirror principle. So instead of developing our own British case law, which they began to do in the early days under the Human Rights Act, (and that was one of the features that really determined it as a Bill of Rights: section 2 of the Human Rights Act requiring the courts to take the European Convention on Human Rights into account, but not to be bound by it) they are now effectively reading in the words "bound by", increasingly in their judgments since the cases of Ullah and Clift, so essentially, the courts themselves appear to be turning the Human Rights Act into an incorporated treaty rather than the Bill of Rights I believe it was intended to be. That could be reversed quite easily by the courts should they choose to do so, which is why Lady Arden described it as a self-denying ordinance, but the situation being as it is, I think that is the kind of legal reason why we need a British Bill of Rights. But there are, if you like, non-strictly legal or technical reasons for it, and one is that Bills of Rights are far more than a legal technical document. They are there, if you like, to establish the identity of a society; they are there to establish what the fundamental principles of a democracy are. I think the reality is that the British people, for many reasons, have not taken the Human Rights Act to their hearts as their Bill of Rights. That is largely because there has been no real leadership until now to explain what it is, to clarify its terms. I heard Geoff Hoon, Chief Whip, on the radio, in a debate about the Oxford Union debate on Any Questions; he was asked his view on that, and he said, "We have to understand that in the Human Rights Act under Article 17, people cannot use their fundamental rights to deny the rights of others." I have never heard a Government Minister explain the basic philosophy behind the Human Rights Act before. Had they done so, and had the Human Rights Commission come on stream a long time ago, I do not think we would necessarily need a Bill of Rights, but it has not, and therefore I think this is an opportunity to consult with people, to have the conversation we never had about what Bills of Rights are and how they reflect our fundamental identity as a society. Finally, and I will not go into any detail here at this point, I think it is an opportunity to refresh what is a 50 year plus Convention, with rights that, if you like, are current for the modern age, and I could say a bit more about that later.

  Q2  Chairman: Martin?

  Mr Howe: Yes, Mr Chairman. Thank you for indicating at the beginning that although I am a member of the Conservative Party's Policy Commission on the Bill of Rights, anything I say today is purely in my personal capacity, and other members of the Commission might violently disagree with every word I say. Now, do we need a Bill of Rights? One has to look here at the fundamental relationship between Parliament and the courts, because any Bill of Rights, to some extent, will shift more power to the courts from the elected legislators. Therefore, I think you would have to be clear as to what you are seeking to achieve by making such a shift. It strikes me that the way to look at a Bill of Rights, apart from, and on this point I agree with Francesca, the necessity for general public support for it, is in a way it is Parliament's own restraint on the executive. If we bear in mind that something like 99 per cent of our law is now made by statutory instrument, rather than by Act of Parliament, and we also bear in mind the way that the Parliamentary system works, the value of having a Bill of Rights is to have a set of objective standards that does not strictly bind Parliament not to pass laws that are in contravention of it, but it means that if Parliament chooses to do that, it has to be done by an explicit process. If, if you like, Whitehall wants to formulate statutory instruments which contravene its principles, at that level, it cannot be done, it all has to go through Parliament in the form of a Bill. So I think as long as a Bill of Rights is not the US Constitution's type, with strong entrenchment, but is seen primarily as a tool by which Parliament can lay down principles which bind Whitehall and the executive, then it has enormous value.

  Q3  Chairman: Sandy?

  Professor Fredman: Yes, thank you. Well, yes, I think we do already have a Bill of Rights, and it is a British Bill of Rights, in that Britain was very much involved in the European Convention, but I think it is important to remember that the Council of Europe, from which the European Convention arises, also had another document, which was on socio-economic rights, and when the Human Rights Act was enacted, there was no debate but that the Human Rights Act should incorporate the European Convention on Human Rights. I think that having a debate, opening the idea of a British Bill of Rights, raises the possibility of thinking again about socio-economic rights. It is generally thought that socio-economic rights are alien, and many politicians view them as simply giving a lot of power to the judges to make decisions about public spending and even about taxation, but in fact, I think there are two reasons why in a debate about a British Bill of Rights, these rights need to be considered. The first is they are actually fundamental to the values of the society, and have been ever since the end of the Second World War. I think it is widely recognised that the state should be responsible for preventing destitution, for providing healthcare, for providing free compulsory education, for providing housing for those who are unintentionally homeless. I think a recent survey showed that when people were asked what rights we should have, 88 per cent said we should have a right to free hospital care. So the values and the principles behind socio-economic rights are already embedded in the unwritten constitutional framework of this country. The second reason is that when the Council of Europe produced these two different documents, it was thought that somehow socio-economic rights were very different from civil and political rights, but it is increasingly recognised that these boundaries are artificial, and cannot be sustained. We can see that by the fact that even the European Convention on Human Rights is being developed in an organic manner to incorporate what one might think of as socio-economic rights. Socio-economic rights are often thought of as positive duties on the state to make provision for people in need, but many civil and political rights also give rise to those kind of duties. If we want to have a right to trial, we have to have a duty on the state to provide courts, a legal system; even legal aid is part of Article 6. The same thing is true of the right to equality: if you do have housing, you cannot provide the housing in a discriminatory way. So I think that really what needs to be had in this debate is more of a discussion about the role of the judiciary. I am South African, and I am very familiar with the developing jurisprudence around socio-economic rights in South Africa. I think it is possible to construct a role for a judiciary which is democratic, which energises the democratic process, and as both previous speakers have said, it is not only the judiciary that are involved in human rights, they should be essentially pro-active and come through Parliament and other bodies.

  Chairman: I think that is very interesting. I certainly would take your point about the importance of checks and balances which we have seen in the South African system. I would prefer today not to get too bogged down in the socio-economic rights issue, because we will be looking at that in a later session in a lot more detail.

  Mr Shepherd: No, but it is fundamental, it is a line that runs through this whole inquiry, Mr Chairman, and I wanted to just ask Professor Fredman on that.

  Chairman: I do not have a problem with that, Richard. Before you arrived, we were talking about this, and we will be coming back to this in a lot more detail, so there is no problem asking it, but that is not the main focus of today, we are on the broader principles today.

  Mr Shepherd: This is part of the broader principle: what is the nature of a Bill of Rights? Is it socio-economic as well as the traditional liberties, I think you would call it. It is not really until Roosevelt gives his additional freedoms that you start this whole debate. It strikes at the very democratic principles of a free society that has tried to entrench in its Bills of Rights freedom from prosecution, habeus corpus and all those elements, that are common both to our—I should say 1689, both to the American Bill of Rights and also to the British input into the European Convention on Human Rights. There is quite a clear separation, and the same socio-economic rights are coming in like that; that was always the decision of the electorate, free people in a free country being able to identify the priorities that they associate to individual needs of the society. There is a distinction between these two elements, and a very clear one in some of our minds, so we do not necessarily accept the internationalisation of what is so fundamental as to what is essential to our liberty. Thank you.

  Earl of Onslow: May I come in on exactly that point?

  Chairman: Not at the moment, Michael.

  Q4  Dr Harris: I thought I was going to get an answer from our witnesses. I am interested in this question about whether a British Bill of Rights would provide potentially more rights than we have through the combination of our signing up to the European Convention on Human Rights and the Human Rights Act, or less, by definition less rights; we just write in less rights, or there is greater margin of appreciation for rights not to be insisted upon by individuals; or perhaps more rights, less margin of appreciation, or more actual rights. I would like to ask you, Mr Howe, first, if I may, what your personal view is about whether, if we had one, a British Bill of Rights would be ECHR minus, if you like, or ECHR plus.

  Mr Howe: Well, the query you are putting is ECHR plus or ECHR minus; may I suggest there is actually a third category, which is ECHR more precise. Let me explain what I mean by that, because the Convention is, of course, very broadly drafted, and leaves in many areas a large area for interpretation. It would be possible to reflect the rights in the Convention, first of all, in a way which more precisely interfits with our legal system. Let me give you an example: at the moment, there is quite a lot of case law of the Strasbourg Court seeking to categorise proceedings for penalties, as to which side of the line they fall on when it comes to Article 6, whether they count as criminal proceedings or as civil proceedings. Some types of penalty proceedings under our legal system count as criminal for that purpose and others do not, and some very, very fine distinctions are made. Ironically, we had provisions protecting us from proceedings for penalties in the first Bill of Rights of 1689, and it would be possible, by a Bill of Rights that more precisely interfits with our legal system, to across the board apply the criminal standards of protection to all proceedings for penalties in our legal system.

  Q5  Dr Harris: That is the only way you can do that, you cannot just write laws that do that?

  Mr Howe: Well, there are so many individual laws relating to penalties; everything from, you know, traffic cameras through to Inland Revenue or Customs penalties. Actually, there are growing issues, because every new regulator that is created seems to have power to impose fines on the regulated industry, and some common principles under which these can be imposed could well be a fit subject matter for a Bill of Rights. But the second area where one can be more precise is in areas where the Convention itself allows a wide area of discretion to contracting states. A particular example in this country is since the incorporation of the Convention via the Human Rights Act, our courts have developed what is in effect a judge-made freestanding law of privacy, something that Parliament has shied away from doing many times before. The case law under that is rather imprecise, because in effect what the courts are doing is they are triangulating between the very general words of Article 8, of respect for private and family life, and Article 10 on freedom of expression. It strikes me that within that area, it would be possible to be more precise in the guidance that Parliament is giving the courts, in effect, to try and increase the certainty of the law, possibly to shift the balance more towards freedom of the press than heretofore in the courts' decisions we have seen, but still remaining within the ambit of the Convention as to the balance between these two rights. I think a third respect in which a Bill of Rights could be useful would be with certain rights, which are necessarily defined at very broad level, because of the nature of the Convention; for example, the right to a fair trial is defined just generally, and has to be defined; the Convention covers many different legal systems. Obviously, there is the divergence between the common law legal system and the Continental legal system; in the Convention, it has to cover both. It would be possible, in a domestic Bill of Rights, to look at making provision for protecting specific features that we in our tradition regard as important aspects of the right to a fair trial, for example, the right to jury trial in serious cases. So I think those are some examples of the way in which a Bill of Rights could, if you like, reflect the general principles contained in the European Convention on Human Rights, but reflect them in a way which is more precise, and in some respects actually goes further than the existing rights that are in there.

  Q6  Dr Harris: I understand that, and so that is an extra option. So it is using the margin of appreciation that exists to allow a British own Bill of Rights to be more precise in those areas and not rely on judges, who could be described as random, or at least not democratic. But for those who rail against, if I can use that term, or complain that the rights granted under the ECHR and therefore through the HRA are too wide, I have heard say, "We should have our own Bill of Rights"; it may not be your view, I am not saying it is your view, but I have heard that said. I wanted to ask you, and then the others, what sorts of things have you heard said, or you believe yourself are the sorts of things that might actually be narrowed by having a British Bill of Rights? If you do not think that is possible, could you say so, because it would be helpful, I think, to public discourse to understand if that is the case, that a British Bill of Rights could not really narrow from the ECHR without us resiling in some way from the ECHR.

  Mr Howe: Let us be precise on the points we are looking at. The answer is certainly, as a matter of legal mechanics, a British Bill of Rights could be narrower than the ECHR and we could still remain members of the ECHR. In effect, we would be going back in certain areas, but only limited areas, to the system that existed before the 1998 Act, under which if there was an adverse judgment at Strasbourg, then the Government and Parliament would have to consider how to react to that, and to change the law. So as a matter of mechanics, it does not follow that, if you like, everything in the Convention has to be reflected in a domestic Bill of Rights, if it is otherwise provided for in our law.

  Q7  Dr Harris: Do you think that is sensible, or do you think incorporation or its equivalent is a good thing? Because otherwise you have a two-stage process and it takes you years to get your rights.

  Mr Howe: No, I am not advocating it as a general solution, but I am just pointing out that if there is a divergence, it is not inconsistent with our continued membership of the Convention.

  Q8  Dr Harris: But I am asking you if you think that is a good thing overall, because of the problem I have just suggested, meaning people would have to go to Europe to get the rights that you say they would still have, they just would not be able to get them here.

  Mr Howe: This comes on to the issue of the vagueness of some of the rights in the Convention. The issue I think is not so much what happens once you go through the court system, and all the way to the House of Lords, but the way in which the Convention rights are framed puts people in a position to put forward contentions and arguments which may ultimately prove unsuccessful if taken to court, but which nonetheless can have an effect on the way administrative bodies work, perhaps an unwarranted fear.

  Q9  Dr Harris: A chilling effect.

  Mr Howe: Possibly you can call it chilling, that is a bit of a pejorative word, but an unwarranted fear that acting in a certain way will infringe someone's human rights, whereas had the thing gone through the court system and gone up to the House of Lords, they might have decided the opposite. Let me give an example.

  Q10  Dr Harris: Can I just ask you: how does a Bill of Rights, which still enables individuals to petition the ECHR, solve that problem? Because you will always still be able to petition the ECHR, it just makes it more difficult and longer and more drawn out.

  Mr Howe: No, this is the sort of case where a petition to the ECHR would be very likely to fail. If one has clearer drafting, that knocks it out of contention in the domestic system at stage one, and does not allow, if you like, frivolous claims to work their way through the system, I think that could be a benefit.

  Professor Klug: The technical answer to your question is found in this research, which I commend to all members of the Committee, if you have not already read it. It is by the Ministry of Justice and Oxford University, called "Public protection, proportionality and the search for balance". It is a comparative study of jurisdictions where the Convention is incorporated and there is an additional Bill of Rights. In every case, in a nutshell, it was found that actually, in jurisdictions that had additional Bills of Rights, as well as incorporating the Convention, the courts tended to, if you like, let the Government off the hook far less frequently: they were far more diligent and rigorous in their application of the fundamental rights that were in their Bills of Rights and they took a more strenuous approach to the proportionality principle which is in play in security versus individual freedom cases, which I think you are probably alluding to, Martin. So I think this idea that having your own Bill of Rights somehow means that you get Strasbourg off your back is not based on any evidence or research. I think quite to the contrary, Strasbourg will only, if you like, exercise a greater margin of appreciation when a state has its own Bill of Rights if it considers that that Bill of Rights goes beyond the Convention rather than resiles from it in any way, or is narrower in any way. But I think there is a much more fundamental issue at play, and I welcome this question, if I can say that, Dr Harris, because I am not aware- I do not know whether Professor Fredman can contradict me- of any Bill of Rights in the modern world, post 1948, where there has ever been a discussion about introducing one on the basis of wanting to curtail a human rights instrument or Bill of Rights that is already in place. There are 46 countries in the Council of Europe that have incorporated the European Convention in their law; 21 have their own Bills of Rights. No one, to my knowledge, other than the sort of conversation that is going on on the periphery here, has ever discussed deincorporating from the European Convention on Human Rights or doing the equivalent. When Canada found their Bill of Rights was not sufficiently robust, the kinds of points I was making in response to the initial question, they proceeded to add to it, to supplement it with a Charter of Rights. They did not resile from their Bill of Rights. The Northern Ireland Good Friday Agreement (of course Northern Ireland is part of the UK) is working on this process as we speak, a Bill of Rights Forum has been set up, led by a renowned international human rights jurist, Chris Sidoti, who through a Bill of Rights Forum is taking evidence, consulting with people at the moment on a Bill of Rights, and I quote from the Good Friday Agreement, " ... rights supplementary to those in the ECHR ... taken together with the ECHR, to constitute a Bill of Rights for Northern Ireland". So my own view is that it is quite unimaginable, in terms of us being part of a global discourse on human rights, which we have led and promoted, to be having this discussion on the back of going backwards, resiling from what we already have in our law. So I think the issue is: is it going to be HRA plus, rather than is it going to be compliant with the ECHR, which, as Martin said, was the argument that successive governments made before we ever had the Human Rights Act.

  Q11  Dr Harris: Could I ask Martin if he thinks that deincorporation, if that is the right noun, unincorporation, is thinkable, is plausible, given what you have just heard; do you have a different view?

  Mr Howe: Sorry, perhaps you could be precise what you mean by deincorporation.

  Q12  Dr Harris: As part of a Bill of Rights, that would be associated with the repeal of the HRA and no replacement that incorporates the ECHR. So it would be thinkable to bring in a Bill of Rights at the same time as deincorporating the ECHR through repeal of the HRA where the new Bill of Rights was not direct incorporation of the ECHR into our law. I hope that is precise enough. I am just a medic, not a lawyer.

  Mr Howe: I think certainly one workable model would be that if you adopt a domestic Bill of Rights, and it covers the ground of the ECHR, then the domestic Bill of Rights is what you look to within the domestic legal system for the content and interpretation of those rights. You do not look outside that to the ECHR itself.

  Chairman: But people could still go to the European Court in Strasbourg—

  Mr Shepherd: We have just done away with it.

  Q13  Chairman: He can correct me, but my understanding of what Martin is saying is the Bill of Rights would be justiciable in the UK courts, UK nationals would not be able to bring an action on the European Convention in the UK courts but only Strasbourg.

  Mr Howe: Yes, otherwise, you get a confusion of two overlapping texts.

  Q14  Dr Harris: But your neighbour on the right, Professor Klug, says that no one else has done that; that is not proof that it cannot or should not be done, I thought that no one else in Europe had done that.

  Professor Klug: No one else has done that. My point, I suppose, is we are part of a global discussion on human rights. We encourage and promote other jurisdictions to protect and respect global human rights that we have been at the forefront of developing. So the implication here is that we are moving away from that as a process of getting a Bill of Rights, which is, as far as I know, unique in terms of the purpose of a Bill of Rights, because Bills of Rights are purposive, they are not just technical.

  Dr Harris: Mr Howe is shaking his head. I am looking for a difference of opinion, you see.

  Chairman: One at a time.

  Q15  Dr Harris: I am keen to get your view on that, because you seem to be disagreeing, and I am keen to identify any difference of witness evidence.

  Mr Howe: What I would say is a comment like that must depend upon the content of such a Bill of Rights. If such a Bill of Rights covers the entire ground of the ECHR, goes further in some areas, and what it does is defines those rights effectively in clearer and more precise terms that intermesh more clearly with our legal system and law, then a comment along the lines of saying it is going backwards I do not think is justified.

  Q16  Dr Harris: But if it was set up with the rhetoric and the legislation to try and reduce the scope of rights in some way, and I know that is partly a subjective view until it is tested, then you would accept that that would be an unusual approach in the modern Council of Europe world; you would agree that under those circumstances, in that context, Professor Klug would be right to say that that would be unusual, not usually done, not comradely in terms of the community of rights approach.

  Mr Howe: Yes, but whether that means one should not do it is another matter.

  Q17  Earl of Onslow: I think it is arguable that this Government has abused liberty more than any other, and so I come to the thing that we need a Bill of Rights plus the ECHR. I particularly would like to ask you, when you were talking about penalties just now, we have ASBO legislation which produces people who can be sent to prison on hearsay evidence and for things which are not a crime; you have the Criminal Justice Act 2003, which says that if they think they are going to tamper with a jury, you can get rid of it, it does not have to be there; you have the Proceeds of Crime Act 2002, which gives the state powers to confiscate assets in circumstances where it does not have evidence for prosecution. I have a long list here, and these things seem to me to show an absolute necessity for a Bill of Rights, but a Bill of Rights which reinforces 1689, like jury trial, nobody can be arrested without a warrant, somebody has to be charged and found guilty, and all of those ancient British liberties which seem to me—how we got into the pickle, we have the Human Rights Act on one side, and the actions of a Government which has taken away liberty after liberty after liberty after liberty over the last ten years.

  Professor Klug: I would agree with a lot of that analysis, except to say the Human Rights Act has unquestionably provided a check on the capacity of the executive to do that to the extent that it wished to do so. That is all that we have had!

  Q18  Mr Shepherd: Sorry, it is like a running commentary, is it not? There is clearly a vision—it is an international system. I would adhere to the United Nations: this is an extraordinary situation in which we have a court to which we are deferential, and this does not happen with the United Nations generality of what I would call civil liberties law, and is now called human rights, encompassing a much wider area. It is trying to get a clarity as to what does protect the very point about it, the liberty side of it, because if you have liberty, you can therefore develop all the social instruments you want, if that is the will of the people. It is this contradiction between this march of saying that a foreign court, because that is what it is, operating largely for its members, with the exception of England, Wales and Ireland, is operating a different legal system; the very point, I think, that Mr Howe was alluding to in the nature of the civil law tradition as opposed to the common law tradition. All of those are the things that seem to me at the heart of this. What do you want this for? An argument has just been put forward that you want a Bill of Rights to protect our liberties and our freedoms as have traditionally been understood. You present the newer world which says that this should encompass many of the instruments that deal with social injustices, et cetera. That is why I mentioned earlier President Roosevelt's adding on freedom from want, freedom from hunger. In the more stringent age when I was brought up, those were legitimate, good and virtuous aspirations, not a matter of rigorous law. That is why I was trying to set out a distinction there, and therefore, following the line through, I do not mean to be dominating, but this interests me, because I think we muddle the greatest trust of all, which is to protect these political rights, the freedom of the people to decide whether one has a priority over another, as opposed to judges. Now you come back.

  Professor Klug: A small point of clarification, which is, of course, that the point of the Human Rights Act was so that British judges should take those broad rights and develop British jurisprudence, rather than, as you put it, "a foreign court". That is a separate point to your second one, but just to clarify that one point you made.

  Professor Fredman: Yes, I think it is very often thought that there is a dichotomy between what should be decided by the people through the democratic process, and what should be decided by human rights through the courts. It is often set up as a dichotomy that these fundamental liberties are appropriate for courts because they are restraining the state from interfering with people's fundamental liberties, and that that is separate from the democratic process whereby we decide how and in what way people's needs are addressed. So that is the way in which it is often thought of. I think we should contest that, because of course it is extremely democratic as well to protect people's liberties, and when the courts protect people's liberties, they cannot avoid, at the same time, requiring the Government to do certain things which require expenditure, which require the state to actually take positive action. We saw this very clearly in the House of Lords decision in the Limbuela case, where people had no option but to be destitute, because of the way in which the Government had set up the system- they were not permitted to work, and they were not given the right to social security. The court held that Article 3, which is the basic right not to be tortured, and not to be subject to inhuman treatment or punishment, was breached. So in protecting those very basic liberties, the court is also involved in dealing with people's basic needs. The argument about it being undemocratic needs to be addressed by thinking about what is the role of the courts, and human rights are not only about courts. Human rights are also about what Governments, what Parliaments, what the people think are the values which should be pursued by the country. I think one of the main strengths of the Human Rights Act is that it actually sees Parliament, and now the Human Rights Commission, but primarily Parliament, as central in pursuing human rights. So I really want to go beyond that dichotomy between thinking of judges as inhibiting the state from interfering in freedom, and somehow interfering with democracy, and the opposite. One last point is, of course, when judges protect people's liberties in the areas in which the Earl of Onslow suggested, they are also pursuing democracy, and the judges are actually strengthening democracy in those respects as well, which is exactly the same intermingling between the two. I mean, when the courts prevent those sort of things, when they protect liberties against government action in that way, then the courts are also promoting democracy, so the courts in civil and political rights are also promoting democracy as they are in all kinds of rights.

  Chairman: Could I just remind everybody on the Committee and witnesses, we have a limited amount of time, we have another panel to get through, we may have votes in either House, so if our people could be short in the questions, and the witnesses could be succinct in the answers, that would be very helpful. Baroness Stern?

  Q19  Baroness Stern: Thank you very much. I have two questions to ask; you only get to answer the second one if you say yes to the first one. This is about rights and responsibilities, and the "and responsibilities" is in italics, is underlined, stress it, because that is what I am now asking about. So question one is: do you agree with the Government's view that what is needed is a Bill of Rights and Responsibilities? That is question one. If you say yes to that, I am then going to ask you, I am asking you now: what sort of responsibilities in your view would it be appropriate to include in a British Bill of Rights? I do not mind who wants to start. Martin?

  Mr Howe: Right, I think the answer is, in principle, yes. However, you then open up a very, very broad range of choices on what should the responsibilities be. My own view is that actually, the responsibilities so referred to should actually be quite narrowly defined, and the impact of them should be in some sense coming in in some areas where balancing exercises are required in the application of the law. In other words, what I would not like to see are some generally defined responsibilities which then have direct legal force as between the state and the citizen, because some of these charters of responsibilities are extremely frightening. There is the African one, which contains responsibilities to respect the government, and not agitate against its proposals and policies. But if one has, if you like, a narrow definition of responsibilities, such as obeying the law, not engaging in crime, that sort of thing, and if they come in, not as a direct legal responsibility of citizens, but simply as something that comes into account where someone is seeking to enforce their rights, then I think they have a legitimate role to play. But, of course, it does not follow that just because you fail to carry out your responsibilities, you become an outlaw and are entitled to no rights. I think that would be taking it too far.



 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2008
Prepared 10 August 2008