Examination of Witnesses (Questions 34-39)|
3 DECEMBER 2007
Q34 Chairman: We are now coming into
our second panel, sorry for the disruption during the division,
for which we are joined by Roger Smith, who is the director of
JUSTICE, Jago Russell, the policy officer from Liberty, and Katie
Ghose, who is the Director of the British Institute of Human Rights.
Welcome to you all, I am sorry it has been a bit of a curtailed
session. Perhaps I could start off by asking Katie whether you
think a British Bill of Rights is needed.
Ms Ghose: It would depend on what
kind of Bill of Rights it was. I would like nothing more than
to see an all-singing, all-dancing, comprehensive protection of
the rights of all people in the UK, a package that would see not
just the civil and political rights, which we have protected to
some extent in our Human Rights Act, but the things that people
actually say they really want, the economic and social rights,
the right to housing, to education, to have an adequate standard
of living. If we were talking about that sort of Bill of Rights,
and it is exciting to see something like that happening in Northern
Ireland, where people themselves are being asked the kind of rights
they would like, then I would say yes, that would be wonderful,
it would be an addition to the foundation we already have in the
Human Rights Act. But if you are asking me whether I am in favour
of what looks to be on the table, I have to say there has been
no indication from the Government that the intention of the Bill
of Rights process is to add rights to what we already have in
the Human Rights Act.
Q35 Earl of Onslow: Sorry, can I interrupt
you there? In the Human Rights Act, there is no right to a trial
by jury. I happen to think it is extremely important that that
should be entrenched, or rather put in, so that is a major addition.
Ms Ghose: That is certainly an
example of a civil or political right, yes. I think there are
many other examples of rights, what we would call economic or
social rights, to use the jargon, but are things, as I have said,
that when people are actually given the opportunity to say the
kind of rights they care about in their day-to-day lives, as well
as the civil and political rights, they do talk about things like
housing, education and health. As I was saying, the current process,
the process that is coming up, there has not yet been anything
put on the table, if you like, other than perhaps the right to
trial by jury, that would give an indication that the process
was really being driven by a desire to add to the rights that
we already have.
Q36 Chairman: Jago?
Mr Russell: I think it is probably
worth starting by saying that actually, I do not think any of
the organisations at this table, and definitely not Liberty, asked
for this debate. This is not a debate that we have been calling
for. Actually, I have to say, it is a debate which Liberty approaches
with a degree of trepidation, rather than something we welcome
with open arms in the current political climate. Really, you only
have to ask yourselves, why have politicians started talking about
a British Bill of Rights? They have not done it because of a progressive
desire to incorporate a greater range of rights, or to give greater
human rights protection; they have actually made statements about
ripping the Human Rights Act up, David Cameron's recent comments,
because of things like cases which have established that Article
3 will not allow a person to be deported to torture, and other
controversial decisions; those are the kinds of things that have
given rise to this debate. In that context, of course we will
engage in a debate on the British Bill of Rights, but I am pretty
sceptical at the moment about where that debate will take us.
I think some of the things you heard from the previous panel actually
reiterated the fact that there are lots of people that are engaged
in this debate, in all of the political parties, who actually
would like it to take us backwards in terms of human rights protection
and not forwards, and that is clearly something that Liberty would
be very concerned about.
Mr Smith: Personally, I too am
agnostic as to the result. Paradoxically, I think if one could
get agreement on a British Bill of Rights, political consensus
over the spectrum, I would go for one. Short of that, I think
it is difficult. What JUSTICE has been concerned about at this
stage in the debate has been to work through the issues and try
to put in the debate all the things you have to consider if you
want a Bill of Rights. You just have to start opening the Pandora's
lid of content to realise what comes out, and if we are going
to have a serious discussion about a Bill of Rights, then there
are a lot of serious issues, and they are wider than socio-economic
cultural rights. I think, yes, jury trial is in there, a whole
series of issues come out, and this is not a quick and easy debate.
If we are going to have a Bill of Rights of any kind, it is only
going to be the result of a long process, and I think, frankly,
anything that deserves the title Bill of Rights probably requires
a degree of political consensus which in the current circumstances
is rather hard to see obtaining.
Q37 Baroness Stern: You may think
you have answered this already, but I do not think you have. Do
you think a Bill of Rights should be aspirational, setting out
the sort of society that we want to be, or should it have a more
Mr Smith: I went to South Africa
relatively recently, and I was really enthused by the way that
South Africans of every colour were energised by the aspirational
rights in their constitution. So I have seen it, and it is a wonderful
thing. Do I think that is in any way transplantable to the United
Kingdom that I recognise; is there any hope of any consensus of
a right to end child poverty, or even a right to medical care?
I do not think so. So as a sceptic, I would like to see it, I
would love to see it, I would love to see agreement, I do not
think we have a hope of that at this moment.
Earl of Onslow: Can I come in on that?
Q38 Baroness Stern: No, you cannot.
Mr Russell: I think it needs to
be a combination of both, I think it should be aspirational and
contain real hard-edged legal rights, and I think in terms of
the Human Rights Act, which I would actually say is a Bill of
Rights in all but name, we have achieved one of those things:
we have a very sound collection of enforceable human rights in
there, but that actually the aspirational side of the Human Rights
Act has been missed out. There was a huge amount of judicial education
before the Act came into force, but there were not the same levels
or types of education in terms of explaining to the public sector,
the kinds of work that BIHR have been doing, about how human rights
principles can actually help us to aspire to a better public service
and to a better society. So I think the Human Rights Act itself
could deliver both the hard-edged legal rights and the aspirational
Ms Ghose: I would endorse that.
BIHR works with a very wide range of voluntary community and public
sector organisations, and we find that the way we talk to people
about the Human Rights Act reflects the aspirations it contains.
The right to a private and a family life, that means so much to
people working with people with learning disabilities, whose children
are routinely taken away and put up for adoption, because the
local authority frankly does not want to put the resources into
supporting them at home. What an aspiration for that family to
have a family life, to be living under the same roof together.
So I think human rights in and of themselves are aspirational,
and I think there should always be a combination, and there usually
is a combination, in law and in wider practice, of wonderful aspirations,
but also of concrete legal standards that people can use in and
outside the courtroom.
Q39 Baroness Stern: Thank you. I
think we know what Katie thinks, but do you think the Government
is right to have effectively ruled out the possibility of a British
Bill of Rights including social and economic rights such as health
and education? Roger?
Mr Smith: No, if one takes the
view that one could get consensus on those issues. If one takes
the view one would not get consensus on those issues, then I think
it is a realistic decision to have taken. I would love to see
socio-economic rights which everybody agreed, in a formulation
which everybody agreed. I do not think that is realistic in our
politics as they are at the moment, and I regret that. What I
hope is that as part of the debate which is gone through, we inch
our way towards more of an acceptance of that, but do I think
there is a consensus, enough for a Bill of Rights at this point?
I do not think so.
Mr Russell: I would reiterate
the comments that Roger has made. I think in the current climate,
it is very unlikely that there will be consensus around that.
I personally do think that when you are talking about some socio-economic
and cultural rights, although not all, that there could be difficulties
with judicial enforcement of some of those rights, and I think
that would need to be looked at. So it would not necessarily be
that exactly the same model of enforcement of rights should apply
to all kinds of rights in the political spectrum or in a British
Bill of Rights, but that is not to say that they are not incredibly
important in the human rights framework, and that there could
not be real advantage in making some of those rights enforceable
in the courts, and some of those rights enforceable through other
structures, perhaps the democratic structures and through Parliament.
Indeed, in the context of many economic, social and cultural rights,
there is actually at the moment very little political disagreement
about the fact that there should be some form of a welfare state,
although exactly what form that takesso to some extent,
actually economic, social and cultural rights are already being
delivered quite effectively, although it clearly could be improved
in some areas, through the political process and through Parliament.
Ms Ghose: Can I add to what I
said, just very briefly, three words: ask the people. People have
not been given an opportunity in the country to learn about existing
rights, and to have their say about whether they might even want
to see economic, social and cultural rights become part and parcel
of our law, over and above how they already are. It is tiring
to hear Ministers and other politicians set their face against
further rights for people, on the basis that somehow it is not
democratic, or judges are stealing power from Parliament. Other
countries manage to do it. I think it is going to be a long run
thing, and I think politicians should have the decency to actually
ask people what they think about this. I think what you will find
is there is an appetite and an interest in things like poverty
and housing and health, and how can we do better for all our people,
and that could be well translated into further human rights.