Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 40-46)



  Q40  Lord Dubs: You may have heard, with the previous witnesses, some questions about whether there should be a Parliamentary or fully entrenched model as regards the Bill of Rights. I want to move on from that though and ask you this: if there were to be a British Bill of Rights, would you like to see any changes in the way in which judges are appointed to comply with international human rights standards, which require an independent judiciary, and indeed the possibility of equal participation in public life, or would you stick with the present way in which we appoint judges?

  Mr Smith: I would like to see no change in how we appoint judges, it being the case that we now have a Judicial Appointments Commission, and new arrangements to come in for the Supreme Court. I think it is a useful myth that judges are non-political. I think anything that raises another myth against it, that judges are political, is highly dangerous. I think the methods we have now in the Constitutional Reform Act for appointing the senior judiciary, as they will be taken forward into the Supreme Court, are the right ones to have. I think also the way that the judiciary are beginning to formulate their areas of responsibility, "relative institutional competence" is the phrase they are coming up with, I think is a very good way of articulating what areas should be theirs and what areas should be for Ministers and politicians.

  Mr Russell: In terms of the specific question about appointment, I have really nothing to add to what Roger said, but in terms of the way that the courts and the judiciary have played their role in terms of enforcing the rights in the Human Rights Act, when you consider the case law, you have seen that they have not been as activist as some politicians and some parts of the media would like to suggest. In many, many contexts, they have said, "Actually, we are not as well placed to answer this question as the democratically elected limbs of Government", so it would be a great shame if that misconception or misperception of how the courts have played their role under the Human Rights Act were to inform future debate on the shape of a Bill of Rights.

  Q41  Earl of Onslow: What I would like to ask is this: in the last ten years, I think there has been an abuse of liberty of an astronomical scale: for instance, fingerprinting and DNA on children, 500,000 secret intercepts a year, 700 agencies have access to all landline and mobile telephone records, no primary legislation, no debate in Parliament. We now have a surveillance society. We have identity cards coming up. All of these things seem to me something which we should have stopped via a Bill of Rights of some sort. Those to me are so fundamental; are we not overlooking dealing with these by not having a proper Bill of Rights which should deal with these issues?

  Mr Russell: In that context, the first point is that there is a right to privacy under the Human Rights Act, and I agree that one area in which a British Bill of Rights could build on that would be to add greater clarity in terms of the right to privacy. I share your concerns about the extent to which a surveillance society has arisen in the UK without a debate, that is a real concern for Liberty too. What is interesting about the right to privacy, though, is it is one of those rights which raises very interesting questions about which limbs of government are best suited to protect particular rights. It is one area in which the courts have not actually been that effective in protecting rights, and the reason is this: a court has a case before them, they see a relatively minor privacy infringement in the case of one person, so one person who complains that their DNA is being permanently retained on a database, the court is adjudicating on that one individual's case. Courts find it very difficult to think of the broader and wider social impact of schemes like the DNA database on the broader public. So actually courts find it very difficult to protect the right to privacy, and it is one right where I think that Parliament actually needs to be playing a far stronger role in questioning whether new government databases which are being established by statute are really necessary, and it is one role where perhaps it would not be appropriate to necessarily expect huge amounts more of the courts.

  Q42  Earl of Onslow: When fingerprints were discovered, they made very strict rules about how fingerprints could be retained. You are supposed to get a warrant to search somebody's house. All these things which Parliament beforehand would have regarded as odious now seem to pass, and it seems to me that the need for a Bill of Rights is actually to stop the executive more than anything else. I would rather stop the executive doing something than give it duties to do which actually would not necessarily be actionable. To go back to your socio-economic duties, the Government at the moment has pledged to reduce poverty by whatever it is; the Rowntree report, out today, says actually that has retrograded. If that had been in your Bill of Rights, who sues who for what for how to get it put right?

  Mr Smith: Can I come back to you on a number of points? One, I have no dissent from the substance of what you are saying, and absolutely no problem if we were able to put those kind of rights into a Bill of Rights, fine. I have some doubts about whether a Bill of Rights would be so detailed as to cover every example you have put forward. Secondly, a Bill of Rights gives politicians, in a way, no excuse. A Bill of Rights sets the parameters, in a way, it draws the boundary lines round the field, and you are still out there playing, and we as a society are still engaged in these issues. So a Bill of Rights is useful in its part, it is a reflection of the political culture, but actually, politics continues, and the issues that you bring up are issues which should remain in the political and which I think politicians should largely be taking different decisions on. Thirdly, I think there is a problem about detail. Any Bill of Rights will necessarily set principle. So if we just come to the number of days of imprisonment before trial, 28, 56, 90, 14, whatever the number, I doubt whether a Bill of Rights properly should put a number in relation to that. The Bill of Rights should probably do what the European Convention effectively says, that you should act proportionately in depriving people of liberty, and it is then for the political process, for Parliamentarians in a Parliamentary democracy, to decide initially and indeed at the end what number of days' detention in all the circumstances is right. So I think as Parliamentarians, it is for you to decide whether you are persuaded by 28, 56 or 90, it is for the judiciary to look over your shoulder and see if you have justified your reasoning and if you are making a proportionate judgment, but that is correctly, it seems to me, a political judgment to be made by Parliamentarians on legislation.

  Q43  Dr Harris: Can I ask a question? The previous panel argued that there should not be the ability of judges to strike down legislation, arguing that that would undermine the role of—well, the question is: did they then say Parliament, or did they then say the Government as democratically elected? Would you say that your view or a view on how much power judges should have to point out incompatibility, declare incompatibility, strike it down on a temporary basis, depends on whether you actually have a Parliament that holds the executive to account, or can that not be relevant? In other words, if you have an executive that just does what it likes, and Parliament has no way of pressing a Government to rectify an incompatibility, say over the housing rights of gypsies, or the rights of prisoners to vote, just to take two issues at random, then would that influence your view as to whether judges should be more active at all on this question?

  Mr Russell: In a way, what is interesting is that is what already happens under the Human Rights Act. Where Parliament does not exercise its responsibility to prescribe the parameters of Government power by putting limitations in primary legislation, or requiring the powers themselves to be set out in legislation, the result is that they are then put in secondary legislation, with the result that the courts then do have a strikedown power. So in a way, if Parliament is requiring, as it should, in my view, detail to be put on primary legislation, and it is taking very seriously human rights concerns, human rights considerations and the kind of things raised by this Committee, then I do not think that we would need to expand beyond the current model of the Human Rights Act. I think it is absolutely right that in the current model, the court should have the power to strike down secondary legislation where that kind of detail is not provided in the statute itself.

  Q44  Dr Harris: But actually, that is an argument against itself, because you can argue when Parliament has failed, in other words it has failed to force the Government to provide primary legislation as debatable to do something, actually, Parliament protects people from the executive directly. I know some people would argue you need to be protected from judges, but I happen to think that protection from the executive, given our electoral system, is important. Parliament has effectively done that by failing to prevent secondary legislation having these issues which judges can strike down. So my concern, do you see my point—

  Mr Russell: I do not see the contradiction, no. I think that when Parliament has failed to require its being primary legislation, then it is absolutely right that the court should have the strikedown power to control the executive.

  Dr Harris: What about where Parliament is rubbish when it comes to primary legislation? Let us say you have a country where the executive is embedded in the legislature, there is very strong whipping, you very rarely get proper scrutiny, some things go through Parliament with primary legislation never being scrutinised in Committee because of guillotines. I will not name the country. You have a slavishly loyal sometimes, particularly in the run-up to a general election, governing party, elected on, say, 25 per cent of the vote of the people who are entitled to vote.

  Earl of Onslow: This is Ruritania incidentally that he is talking about.

  Q45  Dr Harris: As I say, I am not naming the country. What do you then do? Do you think that has any bearing on whether judges should be given the ability to declare incompatible, especially if you have a Bill of Rights that, say, is passed by a two thirds majority, would you, unlike the previous panel, give any thought to giving judges more power in those circumstances?

  Mr Smith: I would give thought, but I would reject it. I understand what you are saying. A weakness of our system, the Parliamentary democracy, is that the executive controls the legislature, at least one House of the legislature, clearly. I think if we had a written constitution, somebody has to protect a written constitution, so there is a large logic for the judges doing that. I think that pragmatically—the Human Rights Act is a very British sort of compromise, and it seems to me rather good. It is a bit lumbering, it is a bit clumsy, you pass legislation which allows foreigners to be locked up, the judges declare it incompatible, the Government has to come back again, it comes back with something which the judges still ask questions about, you have another go at it. It seems to me that that to and fro, which retains for Parliament the ultimate power of deciding at the end of the dialogue what the legislation should be, but also gives a voice to the European Convention, and the values which the UK has signed up to in the abstract, it seems to me absolutely right. I would not want a situation where ultimately—I want a situation in which we would have the Belmarsh judgment, but not Roe v Wade. I want you to decide on abortion, and I want you to stand up before your constituents, or if you are not elected, the public, and defend the position on abortion. I do not want the judges to do it, and I certainly do not want to have arguments about who is appointed to the judiciary on the basis of whether they are pro-life or pro-choice.

  Q46  Dr Harris: But we have not decided on Hirst or Morris or Gabaj, it has been years, so I accept Belmarsh they did get a move on for other reasons, but if you do not happen to be a high-profile rights case, then you just wait years before the Government, if it ever does, gets round to dealing with the incompatibility. I suggest that in our current situation, Parliament is not strong enough to push the Government into dealing with these things as urgently as one might require, let alone individual redress.

  Mr Smith: I would agree there is a whole other debate about how you strengthen Parliament to loosen the power of the majority party in the Commons, and I think you should get on with that, and not make that debate stray into giving the judiciary greater powers.

  Ms Ghose: If I can briefly raise another important point which is sometimes missed, given that public information and understanding about the Act has been largely confined to courtroom cases: if you really care about protecting and promoting everybody's rights, you look at human rights as a system, and you look at everybody in society having a role, so you look at Parliament actually really pro-actively scrutinising legislation, as this Committee does, before things come on the statute books. You look at the judges having a role, you look at people having a role, and you look at NGOs actually robustly holding the Government to account on its human rights standards. It seems to me that this point that is coming up, notwithstanding the different models that there are about laws being batted to and from courts and Parliament, strongly suggests that the whole system would be strengthened if everybody in society was having a much more robust role, was much more aware of their rights, and was holding the different bits of the Government, broadly speaking, to account.

  Chairman: Thank you very much. I am sorry it has been a curtailed session, but we had the division which I am afraid ate into the time a bit.

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