Examination of Witnesses (Questions 200-219)
BARONESS HALE
OF RICHMOND
AND LORD
JUSTICE MAURICE
KAY
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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