Joint Committee on Human Rights Minutes of Evidence


Examination of Witnesses (Questions 20-33)

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

3 DECEMBER 2007

  Q20  Baroness Stern: But you are going to lose some of your rights if you do not obey the law.

  Mr Howe: I think it is legitimate for the court to take into account, when an individual is seeking to enforce his or her rights, to consider to the extent, if it is relevant, that individual has failed to carry out his or her responsibilities.

  Q21  Baroness Stern: Thank you. Professor Fredman?

  Professor Fredman: I think that the European Convention does already have rights and responsibilities. What is crucial is that rights are not conditional on responsibilities, so it should not be a question that you have to earn your rights by somehow discharging certain responsibilities. But I think there are already responsibilities; for example, Article 10 already says that because the right to freedom of speech carries with it responsibilities, it can be limited in certain ways, but there are two specific ways in which there are already responsibilities. The first is that the state has a duty to protect individuals against other individuals infringing their rights. For example, the European Court of Human Rights has said that there is a duty on the state to enact legislation or provide systems so that individuals do not infringe on the right of life of others or cruel and inhuman punishment. The second one is that the court has a duty to interpret the common law, which is between private individuals, so as to reflect the European Convention. But the underlying principle of both of those is that responsibilities should lie on those people who have the kind of power which could infringe on other people's rights, and it is those people who should have responsibilities in respect of other people's rights. Responsibilities should also lie on those who have the power to promote other people's rights, for example, there are now duties to promote equality as between other people, which might potentially involve private power as well as public.

  Q22  Baroness Stern: What about Francesca?

  Professor Klug: I will be very succinct, as requested. I agree with everything that Professor Fredman just said. I think what is needed, to be honest with you, is the philosophy of human rights to be more transparent than it is, the philosophy that is already in the Human Rights Act, which is that you cannot get a society that respects and protects human rights unless people respect each other and act responsibly towards each other, and this could be addressed in a preamble. In fact, there could be a preamble to the Human Rights Act which suggests this, and in fact, I personally wanted that at the time.

  Q23  Lord Morris of Handsworth: Just a supplementary. If we agree that the range of responsibilities are too far to be codified, does that not take us back to judges and the courts' interpretation?

  Professor Klug: I think basically, the duties of individuals and the duties of citizens are reflected in the criminal law and a lot of civil law, and the whole point of Bills of Rights was to say, "These are the rights of individuals in relation to the state and other public authorities". But you talk about the modern and the past—

  Q24  Lord Morris of Handsworth: But they are the broad principles, are they not?

  Professor Klug: They are principles, exactly, and the modern human rights principles very much reflect the fact that we live in a society, we cannot just be individuals, trying to enforce our individual rights in a kind of market of who wins most, but there has to be a recognition of the common good within a human rights treaty, and that is reflected, as Professor Fredman said, very well in the European Convention on Human Rights. But it is not transparent to the people of this country. The tabloid press have done their best to ensure that is the case. So I think this is one of the strongest arguments for consulting on a Bill of Rights, or at the very least adding a preamble to the Human Rights Act to make this clearer.

  Q25  Baroness Stern: Thank you. This is a question about private power. Should a British Bill of Rights follow the South African example of imposing the duty on courts to develop existing private law rights where possible to give remedies for breaches of rights committed by private power? You do not have to all answer if one of you agrees with what the other one said. Professor Fredman?

  Professor Fredman: As I said, there is already a duty under the Human Rights Act for courts to interpret legislation and the common law so that it is in compliance with the European Convention, but the point that has emerged in the South African courts is that it is much better to do that by developing existing common law remedies, rather than creating new causes of action directly from constitutional provisions. I think Justice O'Regan has been at the forefront of developing that notion. So the idea would be that if there is already a cause of action, for example, it has already been mentioned about confidentiality, that you can then develop that cause of action to protect privacy rather than expecting the common law to develop entirely new self-standing causes of action which derive directly from the constitutional rights.

  Mr Howe: Personally, I would be very cautious about, if you like—sorry to be jargonistic, but extending the effect of the Bill of Rights to have horizontal effects between citizens, as distinct from vertical effects between the citizen and the state, because I think one of the key problem areas which has emerged from the bringing into force of the Human Rights Act 1998 is actually the horizontal effect that has appeared in the context of the judge-made law of privacy. Nominally, this is done by the mechanism of re-interpreting the common law of confidence, but in fact the new right created is wholly different in principle from the obligation under the law of confidence that was limited to information of a confidential nature, or arising out of a confidential relationship. It is now enough to come within the ambit of that right if it is information of a private nature. The problem with that is the great uncertainty that is created, and also, I think if Parliament had chosen to introduce a law of privacy, I tend to think it would contain a lot of public interest defences. Any law of privacy, of course, is inherently imprecise, but it could not possibly be less precise than the so-called development of common law that we are left with at the present moment.

  Professor Klug: One of the disadvantages of Bills of Rights is they are imprecise, I think you have to face that. I think the Human Rights Act approach was about right, with the development of the common law and the positive obligation theory. We do not have the time to go through this, and it is probably not very useful. But what I do see though is a Bill of Rights giving the opportunity to get the public function test right, to address the issues that are very well-known to this Committee, that have arisen through the case of YL, because that was a kind of clever way, if you like, of increasing the direct ambit of the Human Rights Act into public functions that are carried out by the private sector without direct horizontal effect, as Martin called it, being too expansive. So I think that is another opportunity that a Bill of Rights presents.

  Q26  Baroness Stern: Thank you. One more. Do you think the Government is right to link the debate about a British Bill of Rights with the question of the rights and duties of citizens? Here I am underlining and putting in bold the word "citizens". Do you think that is right?

  Mr Howe: They are sort of linked at the level of general debate. Whether there is any linkage in the drafting of a Bill of Rights is another matter. I suppose where it comes in is that there are possible areas where citizens ought to have different rights from people who are non-citizens, but, you know, I think that is a subject that requires some rather careful thought.

  Professor Klug: There are Bills of Rights that have chapters that say "Citizens' rights; right to vote; duty to serve in the army", but I think this goes to the heart of what Dr Harris was raising before, and why it really matters whether the Bill of Rights that is being discussed is building on the human rights principles that we have promoted round the world and are part of, or is something wholly new and different, because the whole point about human rights, of course, is that you have them because you are human, you need them wherever you happen to live, because that is the jurisdiction you are living under. If we go to Portugal, if we go to America, we want the protection of those constitutions, and people expect it here, but the fundamental principle driving that is that Bills of Rights are about protecting the rights of human beings as human beings rather than their legal status. If we are to resile from that through this process, we will indeed be resiling from the framework that is currently part of our law, and I think this needs to be transparent, and it needs to be part of the debate from the beginning.

  Professor Fredman: Can I add to that that when we think about citizen, the meaning of citizen is the right to vote, so the rights to vote will be limited to citizens, but the European Convention says very clearly that everyone has these human rights. In a way, it is even more important for those who cannot vote, because they do not have a say in the political process, and if we think that it is the political process which primarily protects people, it is exactly those people who do not have the right to vote who are in even greater need of protection of human rights.

  Mr Shepherd: But that in this country is only prisoners, is it not? Who else does not have the right to vote?

  Lord Dubs: We do not.

  Q27  Mr Shepherd: And you make the law, and determine the issues in these cases, as often as not.

  Professor Klug: Non-Commonwealth permanent residents in this country do not have the right to vote. EU residents—

  Q28  Mr Shepherd: If they are here lawfully, they do have the right—

  Professor Klug: Non-Commonwealth do not; and EU citizens can vote in local elections but not in national elections, as things currently stand.

  Q29  Lord Dubs: May I move the questioning on to the relationship between the powers of the judiciary and the powers of legislators? I think, Martin, you referred to that in one of your earlier answers, but my question specifically is this: should the courts be given the power to strike down legislation if in their view it is contrary to the British Bill of Rights, or should the driving force come from Parliament?

  Mr Howe: My personal view is no, the courts should not be given the power to strike down legislation. The existing system under the Human Rights Act, as you are aware, is they have a power to declare it incompatible. That mechanism could equally be carried forward in the context of the British Bill of Rights. In that respect, it would be, you could argue, more strongly entrenched, soft entrenchment, but still more strongly entrenched than the Bill of Rights of 1689, which suffers from the defect that it has the status of an Act of Parliament, but any subsequent Act or indeed subordinate instrument can repeal it if it is inconsistent with it.

  Q30  Earl of Onslow: But if we pass a Bill of Rights, Parliament, in its wisdom, can repeal that Bill of Rights; no Parliament can bind its successor. So however hard you entrench, you can always unentrench if people are so minded.

  Mr Howe: There are mechanisms by which you could go further. For example, as a matter of constitutional mechanics, you could exclude any Bill that amended or repealed the Bill of Rights from the scope of the Parliament Act, so that it would require the assent of the House of Lords as well as the Commons to do it. I suppose you could go further and say any Bill which contradicts the Bill of Rights is excluded from the scope of the Parliament Act, so if the House of Lords dug its feet in, then it could block it. That would be a constitutional possibility. It is one I would be very cautious about, because the effect of any form of entrenchment is to transfer power from our legislators to the judiciary. It is one thing to have a Bill of Rights that forces, if you like, the Government of the day and the Parliamentary majority, if they have it, to jump through a political hoop, and take the public flak for departing from the Bill of Rights, which seems to me is a legitimate thing to require them to do; it is another thing to have a mechanism that actually blocks a Bill going through, because if you do that, you do risk the danger of transferring the political arguments into the courts. Of course, the long-term prognosis of that is perhaps what we see in the United States, where political decisions are taken by a political body consisting of nine people, the Justices of the Supreme Court, and then the president of each party then has a strong incentive in, if you like, packing the court with judges of either conservative or liberal persuasion, in order to shift the majority in the court one way or the other. This is a point, I think, that can be made without any particular left or right bias, but over historical periods, this is what has happened in the States. So I think that is a possible consequence of strong entrenchment that one has to be very careful about leading on to.

  Professor Klug: I am glad to say I agree with almost everything that Martin Howe just said. I think there is no appetite in this country for judicial strikedown power. Indeed, the Human Rights Act was known initially as the British model, precisely because it did not have one, and it has been copied by other jurisdictions, particularly in Australia, since. I also think, though, the idea of suspending the Parliament Act, certainly in relation to direct amendment to any Bill of Rights- which I think was an idea that emanated from the leader of the Conservative Party, David Cameron- is one that I think is well worth entertaining.

  Professor Fredman: I agree, I do not think there should be a strikedown power, and I think that makes us think a bit more about what the judges are doing when they are adjudicating on human rights. The point has to be that judges need to be strengthening and reinforcing the democratic process, and they do it by making Government accountable. Government has to come to court and explain what it is doing, and be transparent, and provide the kind of reasons which are compatible with human rights and which can persuade people. It is also the case then that the courts can feed into the political process in a unique kind of way, which has got to do with the judicial process, which is much more deliberative and based on a reasoning process rather than on interest bargaining. So the judges' role is to augment democracy by making decision-makers accountable to people who might otherwise not have a voice in the political process, but it should not be done by a strikedown, it should be done in the very sensible way that the Human Rights Act does it, through the declaration of incompatibility.

  Q31  Earl of Onslow: Relationship with the Human Rights Act, other international human rights obligations. I think we have probably gone over whether the British Bill of Rights should replace the HRA or merely supplement it, but it then says: what relationship is there between, for instance, that and the European Charter, the new one signed at Nice, in the EU Charter of Human Rights, and what would be the relationship of the British Bill of Rights to the UK's other international rights and obligations? Anybody like to answer that? And answer came there none.

  Professor Klug: It is just I think we did kind of review this debate earlier in response to Dr Harris's point. My own view is that it would be an extraordinary development and a very large mistake to do anything other than they are doing in Northern Ireland, which is consulting on rights supplementary to the European Convention on Human Rights. In terms of what would be the relative priority, should we have a Bill of Rights which goes on incorporating the European Convention in our law as the Human Rights Act does, and has additional supplementary rights, and perhaps some better-worded rights in it, no problem with that, or are you asking what would then be the relationship between that Bill of Rights and the European Convention on Human Rights?

  Q32  Earl of Onslow: The EU Charter says dignity, freedoms, equality, solidarity, citizens' rights, justice and general provisions.

  Professor Klug: Some of the values in the EU Charter, stripped of their context as the EU Charter, could indeed be part of the consultation process on a Bill of Rights. The word "dignity", for example, does not appear in direct terms in the Human Rights Act, although it is in the UN treaties, and this is an opportunity to look at a more modern way of presenting what is fundamental about being human, which is what Bills of Rights are about. For example, to disabled people, to elderly people, a concept like dignity is hugely important in terms of establishing that it is not just a question of not being discriminated against, but receiving treatment by public authorities that is respectful and reflects your worth as an individual. We keep hearing about scandals every day; this would be an opportunity to consult on whether values like that should be directly in a Bill of Rights. At the moment, they are indirectly there through case law.

  Q33  Earl of Onslow: We have been looking at the human rights of old people and the human rights of people with learning difficulties, and we have really discovered that why the professionals in those two spheres of interest are interested in the Human Rights Act is they use it as a lever to behave how I would think people should behave anyway. So in that way, the Human Rights Act is being used for something that it was not originally intended for, I would suggest.

  Professor Klug: I would suggest it was intended for that purpose actually, having been part of those deliberations. If I could just make a personal comment, as an ex-social worker in at least two former lifetimes, it is extraordinarily useful, when you do operate in a sort of legal vacuum- because the law cannot possibly account for the day-to-day kind of decisions that you are having to take- to have a sort of ethical framework that helps you think how to address difficult dilemmas, if I can put it as broadly as that. It is extraordinarily helpful, which is why the police, for example, both in Northern Ireland and here, really welcomed the Human Rights Act as a potential tool in operational decisions.

  Chairman: We have a division in the Commons, I think we have finished our questioning for this panel anyway, so thank you very much. While we are away doing our duty, perhaps we could swap the panels over and start straight away. Thank you very much. Sorry to be a bit curtailed, but we have to go and vote.

  The Committee suspended from 5.20 pm to 5.30 pm for a division in the House of Commons.



 
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