Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 200-219)


4 MARCH 2008

  Q200  Earl of Onslow: I accept that. I would also agree with you that Lord Irvine of Lairg's solution in the Human Rights Act was extremely elegant. Are there, therefore, some fundamental rights which are better protected in UK law than in the ECHR?

  Baroness Hale of Richmond: That is quite hard a question to answer because the rights that are protected in the ECHR and the Human Rights Act are better protected than any other rights. The protection they get from the Human Rights Act, bringing with it not only the duties of public authorities but also the interpretative obligation in section 3 and the declaration of incapability protection in section 4, gives to those rights a better protection than any other right protected in United Kingdom law. There are, of course, things like access to justice which in ordinary domestic law have greater protection than they do under the Convention; that is one example, because of Legal Aid and the like. As I say, the rights that are protected under the Human Rights Act are better protected than other rights.

  Q201  Earl of Onslow: Do you think there are rights which are missed out by the Human Rights Act which should be protected by a Bill of Rights?

  Baroness Hale of Richmond: A sort of shopping list of things that one could expand into?

  Q202  Earl of Onslow: I can think of things but I am not as clever as you by any means and so you are more capable.

  Baroness Hale of Richmond: I could give you two things from my shopping list, but it is a purely personal opinion, and the first is children's rights. There is virtually nothing in the ECHR about children. The UK is party to the UN Convention on the Rights of the Child and there are aspects of that Convention which could, it seems to me, be with profit put into any British Bill of Rights; better to accord with our existing international obligations and with our understanding of children and what they should have. That would, of course, include a stronger right to education than is in the European Convention although there is one in the European Convention.

  Q203  Earl of Onslow: Do you say a stronger right to education?

  Baroness Hale of Richmond: Yes. We could go into detail on that but now is perhaps not the time and place. The other thing on my shopping list would be a better equality provision than there is in the European Convention. At the moment the equality provision in the European Convention only requires no discrimination in the enjoyment of the Convention rights. There is a protocol to the Convention which gives a broader guarantee of equal protection and non-discrimination which the United Kingdom has not yet ratified. Those would be the two obvious things on my shopping list. One could also think in terms of dignity.

  Q204  Earl of Onslow: You would not think of anything like the right of trial by jury?

  Baroness Hale of Richmond: I would myself personally not want to be prescriptive about what was a fair trial. The right to a fair trial is laid down in the European Convention. Let us think that the American constitution protects the right of trial by jury and I believe that it protects it for civil trials as well as for criminal trials. One could see that one could get into great difficulties by being prescriptive about the ingredients of a fair trial. Lord Justice Kay might take a different line on that.

  Q205  Earl of Onslow: If there were to be a British Bill of Rights, should it go beyond the "floor" of the rights protected by the ECHR and include additional rights which are indigenous to Britain? I think you have answered that question. That is the printed version of the question and the other version was my version.

  Baroness Hale of Richmond: Yours was a great deal simpler to understand.

  Lord Justice Kay: I do not have a shopping list and if I had it is one that I might not find it comfortable to disclose. You are really asking how the Human Rights Act should be amended or what a Bill of Rights should include. With respect, they are political questions for others to answer. As to the first part of your question, things being dealt with in domestic law rather than through the Human Rights Act or any Bill of Rights, I do not quite share Lady Hale's perspective on that. I agree with her entirely when she says that the Human Rights Act and the Convention are themselves inadequate protection against discrimination and inadequate security of equality but that particular source of law does not need to provide the answer. We have now highly developed equality and discrimination laws. It has been on our statute book in different forms and in increasing areas of protection for 30 years, much of it derived from our membership of the European Union. There is no shortage of discrimination law, quite the contrary. It seems to me to be a highly developed field of law that is forever being added to. In my view, it simply does not need either amendment in the Human Rights Act or a Bill of Rights to secure it further. I say I do not have a shopping list and I do feel a degree of inhibition about expressing views on what should and should not be included in future legislation. I have difficulty with the notion of a legal right to dignity, not because I am against people's dignity obviously, but because as a legal concept and as an enforceable concept and as a tool with which judges should be asked to work, I would want to know far more about how it was expressed in legislative form before I would feel comfortable about it. It seems to me that it may be one of those subjects that is aspirational, a motherhood and apple pie type of law rather than strictly enforceable law. That may have a role but that is for politicians to decide. I do think it is a difficult subject for law enforcement and for justiciability.

  Q206  Baroness Stern: Could I begin by asking you, Lord Justice Kay, some really straight forward factual questions if I might. If a public authority is failing in its statutory duty to provide accommodation to an elderly person in need, or a home help to a disabled person, or a speech therapist to a child of special education needs, or a home tutor to a child who is unable to attend school, could that person go to the High Court to ask it to enforce the duty?

  Lord Justice Kay: In principle, yes. In principle any decision of a public authority is susceptible to judicial review on traditional grounds. If you are asking as to the extent to which it is done—and I was forwarned that you might have an interest in that—the answer is that if one were looking just at the figures absolutely you would say that in quite a lot of cases a year it is being done. I retrieved these figures for you earlier today. In three years, 2005, 2006 and 2007, in the Administrative Court there were 439 applications in the Administrative Court in respect of community care decisions; 559 education; 188 on mental health; and 110 on other public health (not disciplinary). That is nearly 1,300 cases, which sounds quite a lot but as a fraction of the workload of the Administrative Court it is now infinitesimal because since I left the Administrative Court four and a half years ago it has doubled its case load. It has gone up from 6,000 cases a year to 12,000 cases and overwhelmingly they are immigration and asylum cases. If you take out the immigration and asylum cases, if you take out the criminal cases which involve appeals from Magistrates and Crown Courts on case stated procedures and go to the pure judicial review, then those 1,296 would not seem quite so insignificant. They are not all judicial reviews. Some are statutory appeals, for example in connection with SENDIST, the special needs tribunal, there is a right to appeal to the Administrative Court on a point of law. The principles are the same as judicial review when you get there. To make the obvious point, it is judicial review and it is not a judge deciding whether a speech therapist should or should not do anything in particular. It is procedural and is a challenge on public law grounds as to the decision-making process; it is not a substitution of a judicial review as to what a speech therapist should or should not do.

  Q207  Baroness Stern: Could I ask Lady Hale that the governance of Great Britain Green Paper stated that "the incorporation of economic and social rights into British law ... would involve a significant shift from Parliament to the judiciary in making decisions about public spending and, at least implicitly, levels of taxation." Would you agree with that statement?

  Baroness Hale of Richmond: Yes, I think that would be likely to be the case depending upon the model chosen. If one looks at the constitution of South Africa, they do incorporate certain social and economic rights into the constitution but they do it in a rather careful way, within the limits of available resources and so on and so forth. My very limited understanding is that the constitutional court of South Africa has been also very ready to take into account constraints on the appropriate level of provision for such reasons. It does depend how you do it. It is not impossible to do it in a way which would not turn the judiciary into a taxing body. The judiciary cannot be a taxing body and the judiciary cannot make hard choices in certain types of discretionary assignment. That is another limit that Lord Justice Kay would have mentioned when dealing with judicial review of certain types of decision. There are things we can do and things we cannot do and we have to be very careful.

  Q208  Baroness Stern: If a British Bill of Rights were to include justiciable rights to education, health and housing, could you say something about what courts would have to do to ensure they do not usurp the legitimate role of democratically elected decision-makers?

  Baroness Hale of Richmond: Could I put it a different way, which is not what courts would have to do but how the right would have to be defined by parliament to give courts the appropriate task for a court to do. Courts will do their best to do what parliament has asked them to do; it is what we spend our time doing, especially in the Administrative Court but also under the Human Rights Act and so on. If parliament would like there to be some sort of bed rock entitlement, it would have to find a way of putting that in such a way as not to put the courts in a position of trying to do that which they cannot do.

  Q209  Baroness Stern: Is that doable?

  Baroness Hale of Richmond: I am not necessarily the right person to ask. I understand there are places in the world where such rights are enshrined in constitutional documents and the courts find it possible to do it.

  Q210  Chairman: There are a number of different ways of looking at it: one would be to bring together all the different statutory rights and try to formulate those in a traditional statutory way; and the other would be to do that but also underpin it with something akin to the South African bottom line, as it were—bottom line in both senses of the word—with the restrictions that the South African courts have in having to take account of available resources and the aspirations of the country. Would it be possible to try to get a mix of those two that would provide a certain underpinning for the most extreme cases which might not be directly provided for by statute but using the statute as a way of formulating the ball park figure as it were?

  Baroness Hale of Richmond: It might be. It would depend upon the kind of rights you were talking about. If you are talking about rights to financial benefits, which are actual rights in domestic law, you might want to have an over-arching right not to be allowed to starve, or something to that effect. You would probably want to put some sort of way of ensuring that that was a bottom line right. You would not want to translate all the hugely detailed social security law into a constitutional document for all sorts of reasons. If you are talking about education, that is supposedly a universal right so it is not a problem to turn it into a right but of course you then have to say what do we mean by education and how suitable does it have to be to "age, ability, aptitude and any special educational needs he may have", which is the current phrase. In fact, SENDIST is entitled to say to a local authority: "you provide that". It is the one social care tribunal that is entitled to say that. If you get onto health care, you can set a bottom line of health care but unless the decision is being irrational, courts are not likely to want to say "you must provide this particular person with this particular operation" or the like. It does depend on what thing you are looking at.

  Q211  Chairman: In South Africa the health care cases have been very few and far between. They have effectively been the supposed issue of new test and the one of two cases that have got through as opposed to the overall problem of Aids for example. If you take the rights of the child, which you mentioned earlier on, there are two ways of approaching it. One would be to say we will incorporate into UK law the UN Convention, like the European Convention on Human Rights. The other would be to have an over-arching phrase like they have in the South African constitution.

  Baroness Hale of Richmond: There are things in the UN Convention on the Rights of the Child which would not be readily translatable into rights here but there are other aspects, some which have been translated in Sought Africa, which could be.

  Q212  Chairman: It is a question of how do you keep it up to date. What struck me when we were debating the Charter of Fundamental Rights on this Lisbon Treaty, putting to one side is this enforceable in the UK, that was a much more up-to-date document than the European Convention on Human Rights because in the 60 years life has moved on. 60 years ago we did not have computers and now the big issue of the day is data protection which is not referred to at all in the Convention. You can argue around privacy and things like that but is that the sort of thing we should be trying to deal with. If so, is there a mechanism where we can try to bring these things and make sure they keep up to date with modern society?

  Baroness Hale of Richmond: You can look at the principle, can you not, of privacy of information and communications which is sitting there in the European Convention and you can restate the principle to include things which were not thought of in 1950. The fundamental principle would be the same, just as the fundamental principle of a fair trial would be the same, but you might bring into that, for example, the modification that the trial has to be appropriate to the subject matter and the people who are being tried, which is a later modification of the European Convention and brings me back to UN Convention as well.

  Q213  Earl of Onslow: How would you regard this? It seems to me that a Bill of Rights is something which says to an over-mighty and over-keen executive you shall not do this because that is beyond the pale. You should not say to a government you shall provide free education or free health because that is a policy matter. It is only a very short step to saying not only free education, free health but free socks and shoes and free sweeties on Tuesdays. That is a reductio ad absurdum—a latin phrase which you are not allowed to use in court any more—that is how it goes and surely that is what a Bill of Rights should be doing: protecting the subject from an over-mighty executive. That is what we are suffering from, in my view, at the moment.

  Baroness Hale of Richmond: Let us be clear. Whether to have such a piece of legislation and what it should contain and its underlying purposes and values are political questions which are for politicians and parliamentarians to decide; they are not for judges to decide. What we are talking about are the mechanisms by which you do whatever it is that you decide to do.

  Q214  Earl of Onslow: It is perfectly reasonable for you to say actually—and you are nearly saying it already—we cannot decide on the issue of sweeties because we do not know the implication behind it. I thought you were agreeing with Lady Stern that it is a question of money and policy.

  Baroness Hale of Richmond: There are some things that are easier to decide upon than others. There are certain basic threshold entitlements from the fact of being a human being that it might be possible to say. I am only saying it might be possible to say. There are modern human rights documents and modern constitutions which do include certain basic social and economic entitlements. It is possible to do. It is a question for parliament entirely whether it wants to go beyond the pure protection from the over-mighty executive into that. The European Convention does so a bit because of its education provision, and it also allows for it, because its protection of property allows for property to be controlled in its use or even taken away for social and economic purposes. It has not fallen into the trap of making it impossible. All I am saying is it is possible within certain limits to do that but you have to bear in mind that there are things that judges cannot decide. They cannot decide as between X, Y and Z: if you only have two dialysis machines and you have three kidney patients, who gets them? They can ensure that the people who do decide are using rational criteria to so decide and are not being biased and are not discriminating and so on and so forth.

  Q215  Lord Bowness: The Chairman introduced the question of the Charter of Fundamental Rights. That is based on the Convention and a whole series of international instruments that the Member States are signed up to in any event. It seeks to draw, whether successfully or not, a distinction between the rights and principles. Most of the economic and social rights fall into the principles and they are almost all, without exception, expressed subject to the national laws, the laws of the Member States or the Convention of Member States. That was done precisely to preserve the rights of the Member States and not to take away from them the political decisions about how you carried out certain things. We would probably all take great differences about how you do it and questions of resources. My question is really if you had a Bill of Rights, and that is a major question, do you think you would have to draw it in a similar way to ensure that the Bill of Rights and the courts were not trespassing into those political questions which many of us rightly say lie with parliament.

  Baroness Hale of Richmond: As I said previously, it is for parliament to decide how to do that. All I am saying is there are some constitutions which have managed to lay a basic minimum without requiring the judges to do things that judges cannot do.

  Q216  Lord Bowness: I was asking whether you thought the Charter was a reasonable blueprint on which parliament could work.

  Baroness Hale of Richmond: I think I had better not answer that.

  Lord Justice Kay: I agree with all that Lady Hale so eloquently said. It is a matter of parliament defining the terms, the rights and the remedies, and parliament is on notice as a result of experience under the Human Rights Act. The High Court and the Court of Appeal struggled for two or three years on proportionality and Article 8 cases, never being quite sure whether it was carrying out a qualitative judgment or a judicial review of whether the minister had acted reasonably in the circumstances. Then Lady Hale and her colleagues put us right. We know now we have to, in some circumstances, make qualitative decisions this proportionality exercise. If parliament enacts a Bill of Rights and does not want us to engage in that kind of exercise, parliament will have to say so and I am sure it will.

  Q217  Lord Morris of Handsworth: My questions are primarily about judicial appointments and they are principally directed at you, Lady Hale. If Lord Justice Kay feels moved to comment then we would love to hear you. If there were to be a British of Bill of Rights, would you like to see any changes in the way in which judges are appointed?

  Baroness Hale of Richmond: At the moment we have very recently established the Judicial Appointments Commission and that preserves the principle that all appointments should be on merit but also involves a duty in the Commission to try and widen the pool from which the most meritorious candidates are selected. It seems to me to be rather early days for saying that we should seek further changes in what has so recently been changed. The Commission has to get into its stride and it has to see what it can do in the pool widening sense and it has also got to see what it can do in this really thorny question of defining merit.

  Q218  Lord Morris of Handsworth: Do I take it you have great faith in the Commission to break the historical mould and to be more diverse in terms of the complexion particularly in the higher courts?

  Baroness Hale of Richmond: I think it is hope rather than faith.

  Q219  Lord Morris of Handsworth: In view of the new system, and you made reference to the Commission, could you say whether you believe that the appointments are perhaps somewhat too much under the control of the judiciary itself?

  Baroness Hale of Richmond: I genuinely do not know the answer to that because obviously the Commission has a substantial lay element and the lay people are all pretty powerful people. The judiciary who are involved are, one hopes, the sort of people who are going to understand the approach that the Commission is taking to things and are not necessarily going to say "this is the way we have always done it so this is the way we are going to go on doing it". That is why I say I hope that the machinery is there to make, over time, the moves in the direction which I suspect that both you and I would like to see, which is a more reflective judiciary than the one we have at the moment but without any sacrifice to what I call the four "in-quotients" which are, intelligence, industry, incorruptibility and impartiality.

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