Examination of Witnesses (Questions 236-239)
PROFESSOR VERNON
BOGDANOR, RT
HON KENNETH
CLARKE QC MP AND
MR HENRY
PORTER
4 MARCH 2008
Q236 Chairman: We are going to start
our second set in the afternoon. We are joined by the Rt Hon Kenneth
Clarke MP QC, Professor Vernon Bogdanor of Brasenose College,
Oxford and Henry Porter. Is there anything you would like to say
by way of opening statement? If not, the starting point is we
have heard from a wide range of people. Do you think a British
Bill of Rights is needed in your view?
Mr Porter: I certainly think it
is. I did not used to think it was but in the last five to six
years my mind has changed. It has changed because in the area
of civil liberties rather than human rights, and I think there
is a distinction which we all understand, we have come to see
an attack on the ordinary what I call elementary headline rights
that we were all used to in this county. In my submission I gave
you a list of those. In some ways they are controversial and in
other ways they are incontestable but my main concern is in the
area of privacy. I think we are facing the most amazing growth
technologically where data bases can link into each other, exchange
information horizontally, vertically, without the subject, that
is us as citizens, knowing what is happening. That places us all
at a great disadvantage to the State. We all have a great faith
in the State and in the benevolence of the government but in five,
ten, 15 years' time we do not know what kind of government we
are going to have and we do not know in what sort of condition
the world will be. I happen to think it will be quite a troubled
century. I believe now that it is time for us to concede what
has happened in the last ten years and to say we have to get a
grip on this. We have to understand the direction society could
go in. The front line for me is this question of privacy. If we
look at what data base is being built now, you have the national
identity register, you have every car journey, truck journey,
taken and recorded on motorways and in city centres. You have
the potential, not yet in law but the Home Secretary has announced
the desire, to collect information as people travel out of this
country, 19 pieces of information including credit card numbers
and telephone numbers and all this may link up. I was having an
argument with a friend of mine this morning who said if you have
nothing to hide, you have nothing to fear. I just do not think
that is a grown-up response these days. Your innocence does not
protect you from bad things and does not protect you from what
might happen in the future. I have become a great convert for
a limited Bill of Rights which underlines these rights that we
have all taken for granted and entrenches them in a way that parliament
finds acceptable and the judiciary find acceptable. There is no
argument about it, we just realise we have to make this new covenant,
this new act of faith between the two branches of our constitution
to go forward and to protect the average citizen from the kinds
of invasion and intrusiveness that I think are beginning to happen.
In the street I live, Westbourne Grove in Bayswater, there has
suddenly sprouted the most amazing number of globe CCTV cameras
which are all linked by microwave and radio controlled. Of course
that may or may not help the security of the area but it does
give you a sense of the watchfulness of the State which I am beginning
to worry about.
Mr Clarke: I am not persuaded
by the case for a British Bill of Rights and I will not be persuaded
until I can see with clarity precisely what the content of the
legislation is going to be. I would also like to be able to anticipate
with clarity what kind of litigation that is going to give rise
to. The idea is now very current but I do not think that degree
of clarity surrounds the idea at all. I think human rights have
become more important in every modern society. I do agree with
that implication of what Henry Porter has just said. I think the
European Convention on Human Rights is an absolute floor as a
minimum defending human rights in this country and always has
been. We have moved on steadily. We have allowed individuals to
bring actions under that Convention since the mid-`60s. I was
opposed to the Human Rights Act and I have changed my mind. I
was wrong. I feared that it would transfer power to the judges
from parliament. I feared that we would have a rash of political
and campaigning cases that would give rise to judges getting involved
in things that should be resolved by the political process. With
hindsight I was wrong. I think we are in a very comfortable position.
The idea of judicial review, developed over the last 20 years,
has been extremely important. I am wholly supportive of that although
I sometimes found it a nuisance when I was a minister. I always
credit Harry Woolf with having led the way in developing the concept
of judicial review in its modern form and it is a valuable protection
against arbitrary decision by ministers, their bureaucracy and
the like which, with the size of the modern executive and its
interface with individuals, is very, very important. Why have
we got into a debate on more? I am afraid I think there is a political
background to all this. There is the right-wing press's attack
on the European Convention on Human Rights which was a wholly
non-controversial document until about 15 years ago but once it
became part of our European debate in this country suddenly it
became the object of attack with the growing insistence that foreigners
were making laws which were being applied at the expense of our
institutions. Politicians should have been more robust in resisting
that. For a variety of other reasons, which I certainly would
not raise in a Joint Committee, Britishness has become frightfully
important to a lot of British politicians, some because they want
to prove they are not just Scottish and some because they want
to prove they have listened to the feelings about immigration
but do not want to say much about it so we have a lot of Britishness.
People go into areas that imply that somehow a new British set
of laws is required to defend our human rights. Where I get off
the bus is when I say to press people what do you wish to add
to the existing European Convention and the Human Rights Act assuming
that you are not going to persuade me you want to subtract in
any way from what we have got; vagueness rapidly results. You
get into a debate about rights and responsibilities which gets
canvassed in all directions which is a very important debate.
I do not think it is a great new political insight. I think it
is platitudinous and should be regarded as rather cliche-ridden
by anybody who understands how a democratic society works. Of
course there are rights and responsibilities but you would not
want to put those into law. The idea that you are going to have
litigation enforcing responsibilities on people, individual citizens,
in the name of the Human Rights Act I find rather bizarre. The
duties are already covered by what we have. The best argument
I have heard is to protect the right of trial by jury. As it happens,
I have taken part in arguments in recent years defending the right
to trial by jury which I strongly defend. It has been raised several
times in parliament. I have to say I am wobbly on details of it
such as the question of whether or not you have jury trial in
long complicated commercial fraud. When I was Home Secretary I
believed that we did not prosecute enough commercial fraud because
the complexity of it made it highly unlikely that you would have
a satisfactory trial by jury. Perfectly distinguished jurists
recommend that change and I think parliament should continue to
look at it. I do not think it should be decided on some human
rights argument and be ruled out of court as an argument. I have
to say all the other suggestions I have heard get into the area
of social and economic rights which I really would not transfer
from parliament to the judges and which take on too much of a
political context. Mr Porter puts it very eloquently. I read the
document he put in and listened to his evidence and Henry Porter
feels very strongly about the surveillance society which is quite
rightly a current topic of debate. I share his unease about it.
I do not share his feeling that we are all acquiescing and setting
out machinery of a police state but a police state could make
great use of what we are setting out and we ought to take check
of it. The question of whether and where, what sort of DNA bank
you have, whether you should regulate the spread of CCTV, all
these things, I go back to my feeling that if parliament and political
debate cannot resolve that public concern on that issue then I
do not think we should transfer it across to the judges with some
statement of human rights and say you tell us what kind of DNA
bank, if any, the police are allowed to hold on the ordinary citizen.
Not least public opinion will change at times, public opinion
resolve, the political process is more flexible, more responsive
to change, and I think that is what parliament has got to be capable
of resolving. It should not become a matter for strictly protected
law being applied by judges who might actually be more intelligent
and more capable of resolving many of these issues in the collective
mind of parliament but are not accountable in the same way. Part
of the public debate, and the way parliament is, you might think
parliament is the best place for those cases to be resolved.
Professor Bogdanor: Whether we
want a British Bill of rights depend on what we want it to achieve.
The European Convention was first drawn up 50 years ago in a very
different sort of society from the one in which we now live. I
suspect that if the framers of the Convention could be brought
back to life they would probably say that more rights ought to
be added on to it, rights which were not thought of perhaps at
that time. That would be one purpose of a British Bill of Rights.
One might think that not enough rights are protected by the Human
Rights Act. Secondly, one may think we need better protection
for human rights. We are one of the few countries where the European
Convention is not actually incorporated into our law. Whether
one has a right or not depends on the discretion of government
or parliament. The judges cannot enforce that right. Many people
in Britain believe that this is a sensible compromise but we are
very much out of line with most other democracies in Europe. Thirdly,
it seems from various surveys that the British people do not really
feel they own the Human Rights Act. Although, as others have said,
it is a mistake to regard it as an alien imposition, nevertheless
many people do feel that it is. I was talking recently to a senior
Conservative who is strongly in favour of the Human Rights Act
and he said that he cannot persuade his constituents in his rather
leafy constituency that the Human Rights Act has anything to do
with them. His constituents believe that it is only for prisoners
and suspected terrorists and the like. We would, therefore, achieve
a firmer basis for the Human Rights Act if somehow the British
people could feel that they owned a British Bill of Rights. That
would be a third basis for such a Bill. The fourth issues is very
largely that discussed by Kenneth Clarke about citizenship, identity
and so on. But in this area I doubt if the Human Rights Act would
be of much use. It does not seem to me a mechanism that can resolve
these very difficult social problems of how to hold a multicultural
and multi-denominational society together. That, after all, is
one of the most fundamental problems we face as a country. I very
much doubt if legal mechanisms can do much to help in that direction
except perhaps at the margins.
Q237 Chairman: I think the question
about the Human Rights Act being somewhat out of date is an important
one. I do not know if you were here when I put that point to Baroness
Hale. I contrast that with, for example, the Charter of Fundamental
Rights—putting to one side for a moment its justiciability
and its enforceability—if you look at the Charter of Fundamental
Rights per se it is a much more modern document dealing,
for example, with issues like data protection in a way that the
European Convention could never do, in that they are the sort
of things we can now do which Mr Porter was talking about which
were not even dreamt of in 1950. So could we learn things from
the Charter of Fundamental Rights which might be transferable?
Professor Bogdanor: Indeed, it
is not difficult to think of further rights which should be or
might be in a British Bill of Rights and which would perhaps be
there if it was being drawn up afresh. The right of privacy is
certainly one. There are other rights which are recognised in
international treaties and it may be argued that they also ought
to be in a Bill of Rights. Some have argued against social and
economic rights but there is one important social right which
is in the European Convention and that is the right to education.
Some would argue that if the right to education is there, why
not the right to health care as well. That seems in many ways
a complementary right. There are further rights which have been
mentioned, rights connected with the environment, which of course
were not thought about in the early 1950s, so I do not think it
is difficult to draw up a list of further rights which ought to
be given basic protection. Finally, some people have suggested
that there ought to be a fundamental right to equality in the
British Bill of Rights. We have recently set up an Equality Commission
and it would seem natural perhaps to put a right to equality,
possibly parallel to the right to equal protection in the American
constitution. We ought to perhaps have that in a British Bill
of Rights if we were to have one.
Q238 Chairman: Your view, Mr Porter,
is that we should be looking at something rather more narrow and
looking primarily at civil rights, not these wider things. In
that context, could I put to you one last question from me and
that is partly building on what Ken has said. If you take, for
example, the issue of CCTV which you take great exception to,
there is huge public demand for CCTV as they see this as a way
of protecting themselves from crime, is it the role of the Bill
of Rights to try to square that circle by saying, "Thou shalt
not have CCTV" or by saying, "You can have it but only
under a certain set of circumstances", when on the other
hand people are saying, "We want it on every street corner
because it helps protect us against crime"?
Mr Porter: It is not my only fear
and I do see the point of CCTV.
Q239 Chairman: I use that as an example.
Mr Porter: I raised it obviously
along Westbourne Grove. Partly because people do not understand
the advantages of technology, but my real worry is what is called
transformational government, the way that databases do naturally
grow to each other, they reach out to each other, and then there
is function creep, people think of new ways of using that database.
If I can just set aside the CCTV point, I think if people knew
and understood the power of these databases, of collecting and
sharing and processing information, they would begin to think,
"We need to think about it as a society" and that should
be done by Parliament. I am very in favour of Canadian privacy
protection. As you probably know, there are two privacy laws in
Canada, one of which protects information which is collected by
the Government, federal and state, and the other which is about
commercial collection of data. I do think we should have something
like that in this country and for my taste it would be backed
by a Bill of Rights which ensured, as the Human Rights Act does,
privacy for people's communications and their family. We do live
in a society, and it may be argued it is necessary, where there
are something like half a million interceptions—email, internet,
post and anyway you can think—per annum. The idea of that
15 years ago, the way we have accepted that, seems to me extraordinary.
I make the point that it is not just about CCTV, it is about databases
and we have to be very careful of them.
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