Joint Committee on Human Rights Minutes of Evidence


Examination of Witnesses (Questions 191-199)

BARONESS HALE OF RICHMOND AND LORD JUSTICE MAURICE KAY

4 MARCH 2008

  Q191 Chairman: Good afternoon everybody. This is another of our evidence sessions in our ongoing inquiry into a British Bill of Rights. In this session we are joined by Baroness Hale of Richmond and Lord Justice Maurice Kay. I should mention that you are being televised and how many people are watching I could not possibly comment. It is a very important session and that reflects the importance of it. Do either of you want to make any opening remarks or do you want to go straight into opening?

  Baroness Hale of Richmond: I have no opening remarks to make.

  Lord Justice Kay: No, thank you.

  Q192  Chairman: Perhaps we can start with you Lady Hale. Do you think the courts in our country would ever be comfortable with a power to strike down legislation passed by parliament?

  Baroness Hale of Richmond: I think we would find it extremely novel, quite alarming and would hesitate to use it. That is about as far as I need to go.

  Q193  Chairman: Do you think there is any judicial appetite for more extensive powers than those in the Human Rights Act, the certificate of incompatibility and so forth?

  Baroness Hale of Richmond: I have not detected any in the cases we have heard so far. Perhaps that is partly because of the approach we have taken to declarations of the incompatibility and because of the approach that the government and parliament have then taken to what to do about declarations of incompatibility.

  Q194  Chairman: Do you think the Human Rights Act system is a good model to follow, if there is to be a Bill of Rights, in terms of judicial intervention?

  Baroness Hale of Richmond: It is the one we know. We are becoming more and more comfortable with it as we get more experience of how it operates. I am sure that the judiciary would do whatever parliament told them to do but it is the one with which we feel most comfortable. There is another one which, although it looks very different, is in practice quite similar and that is the Canadian model, with which I am sure members of the Committee are completely familiar.

  Q195  Chairman: Some of us have been around a bit longer and might be more familiar with it than others. We went to Canada a while ago and looked at some of these issues. Do you think the certificate of incomparability could be improved on in any way, that we could build on what we have got or is it fine as it is?

  Baroness Hale of Richmond: As I say, it is obviously for parliament to decide what, in the end, they would like the judiciary to do. But certainly a model that says that the courts can declare an Act of Parliament invalid but that parliament can override that declaration, which is more or less the Canadian model; or one in which the courts quite regularly, as in both Canada and South Africa, say "this is our view of the constitutionality of this particular piece of legislation and we are going to give Parliament an appropriate length of time to try and put it right", coupled with a "notwithstanding" power, would not, in practice, as the Canadians have pointed out to us, be that different from the current declaration of incompatibility. There are arguments either way.

  Lord Justice Kay: I have a high regard for the structure of the Human Rights Act as a model. It is not the most aesthetically pleasing statute. It is quite a terse, ugly looking little thing but it works remarkably well. Some statutes are rather beautifully designed and are very difficult to operate in practice. I do not think the Human Rights Act is of that kind. I think the experience is that the declaration of incompatibility works rather well. It has cropped up in a relatively small number of cases where declarations have been made, to the best of my knowledge, they have always been properly considered and acted upon by government within a reasonably short period of time. It is a curiously British way of doing things but it seems to me to be a working way of doing things. I have no criticism of it at all.

  The Committee suspended from 4.21 pm to 4.26 pm for a division in the House of Commons

  Q196 Chairman: Before we adjourned, Lord Justice Kay was answering the previous question. I was not sure you had finished.

  Lord Justice Kay: I had, thank you.

  Q197  Earl of Onslow: Lady Hale, before 1688—and you are bound to correct me if I am wrong—Chief Justice Coke assumed, I believe, that parliament could not pass Acts of Parliament contrary to common law, is that right?

  Baroness Hale of Richmond: I am not sure it was entirely contrary to common law. I would have to check the answer to that question. There is a statement in Coke to the effect there were certain things parliament could not do and that is as far as I am can recall it.

  Q198  Earl of Onslow: Am I right in saying this was then stopped by the Bill of Rights of 1668/9 which said no court may interfere with parliaments?

  Baroness Hale of Richmond: It says that freedom of speech and debates and proceedings in parliament shall not be called into question in any court or place out of parliament. That is what the Bill of Rights says. That is virtually an exact quotation. That does not answer the question of what, if any, limits there might be.

  Q199  Earl of Onslow: There is still a very slim theoretical possibility to put your wigs together and say parliament is talking rubbish.

  Baroness Hale of Richmond: It is extremely slim.


 
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