Examination of Witnesses (Questions 260-279)
PROFESSOR VERNON
BOGDANOR, RT
HON KENNETH
CLARKE QC MP AND
MR HENRY
PORTER
4 MARCH 2008
Q260 Chairman: Is that necessarily
a bad thing?
Mr Clarke: I think it is!
Q261 Chairman: Let us take Mr Porter's
example of the databases, it is not just the state that maintains
databases, I am sure my bank has a huge database about me and
my transactions and my credit cards—
Mr Clarke: Your supermarket has.
Q262 Chairman: The supermarkets monitor
what food you buy—
Mr Clarke: --- and what time of
day you buy it.
Lord Bowness: Tear up your loyalty card
then.
Q263 Chairman: If Mr Porter is right
about the need to monitor databases, it is not just the state,
it is all these private, big business people we need to control
as well.
Mr Porter: That is why I go for
a double-barrelled privacy law which I think would be very important.
The Canadians have shown it works and it is constantly finessed
and tuned to take in different commercial factors as well as changes
in society and so forth. I think we need that backed up by a Bill
of Rights. In a sense I do not think it is a Bill of Rights issue,
I would like the principle established in a Bill of Rights and
then I would like a privacy law, and I think people would come
round to my thinking eventually.
Q264 Earl of Onslow: On the point
somebody was making just now about the Bill of Rights entering
into social and economic areas, when I first came on this Committee
we were looking at human rights in old people's homes and my immediate
reaction was, "This is nothing to do with the Human Rights
Act, this is to do with policy and how it should be done, the
Human Rights Act should be about great big principles of law,
of liberty of the subject, et cetera, et cetera, et cetera."
But I went along a footpath to a Damascus conversion which was
simply this, it was found to be an immensely useful tool, both
to the nurses who wanted to put things right and to patients to
do things which they should be doing anyway, and because somebody
said it was against human rights they all got frightened and did
it. That is a very bad reason to have it but in some ways it is
useful, untheoretically, just practically. Again this is the conversion
I had originally because Parliament was not doing its job. They
are tools to make people do their jobs and you were saying just
now, "Surely we should do something about ... .", I
am sorry I cannot remember.
Mr Clarke: I said why do we not
legislate on nursing homes.
Q265 Earl of Onslow: Yes, that was
it, and I interrupted and said, "But you have not".
That is what gets those of us who are libertarians, in the oldest
sense of the word, because Parliament lets these things happen.
Mr Clarke: Parliament does not
get invited to legislate. Let me be plain, I am not coming out
in favour of new legislation on nursing homes but say this Committee
advocates new legislation on nursing homes, the Minister consults
a bureaucracy which is very, very close to people who own nursing
homes, work in nursing homes, represent those in nursing homes,
with great respect there will be a tremendous consultation which
will be responded to by people who say, "The nursing home
movement in this country is a fantastic contribution to human
welfare", and it does require quite a long process before
legislation is brought forward to make a real difference to the
way nursing homes are run. It is amazing when you are a minister
in these individual areas that sometimes your bureaucracy, certainly
most of the lobbies you work with, constantly bombard you with
the need for more surveillance, more information, more data and
more protection against dreadful newspapers who try to claim there
is some deficiency in the system for which you are responsible.
That is why we get so little reforming legislation. If the Government
brought forward a Bill on nursing homes designed to raise nursing
home standards and to stop the abuses of individual residents,
scarcely a Member of Parliament would dare to speak against it
and nobody would vote against it; it would be in favour of motherhood.
It is the bureaucracy in the system which makes it slow to bring
these things forward.
Q266 Chairman: We have made a lot
of progress in getting the Government to legislate on YL,
but by focusing on nursing homes we are missing the point about
what the YL case is actually about, and what it is about
is the applicability of the Human Rights Act to public services
delivered by privatised contracted-out services in the broadest
sense. To resolve the issue we have to make a decision ultimately
whether we think it is right that if services are continually
being privatised, contracted out, the people who receive those
services suddenly lose the rights they have to enforce those rights
against the organisation delivering the services. We have talked
about this particular aspect, there is a whole series of other
things which are affected which came out of the debate we had.
Mr Clarke: But if you are going
to be able to sue your gas company on some new basis beyond contract
or beyond the ordinary law of tort, should that not be as a result
of a new piece of legislation and not because some judge has suddenly
decided to interpret the Human Rights Act in a way which goes
in your favour?
Q267 Chairman: But this goes beyond
that, this is actually looking at the general applicability of
the rights rather than the specifics.
Mr Clarke: Yes. Your supermarket
database, if you are worried about that, does it not need a Bill
on supermarket databases not a judge struggling to decide what
your human rights are about what a database should have on you
and who they should sell it to?
Q268 Lord Morris of Handsworth: Can
I try to clear up in my mind the positions that Ken and Henry
take. You said, Ken, at the outset that you were not persuaded
we needed a Bill of Rights and your response is that we should
leave it to Parliament, on the other hand we have Henry's paper
which demonstrates that Parliament is not really working. So between
the two situations the problem still exists; some problems still
exist. Could I ask whether you think the human rights model of
protection gives sufficient importance to the role of Parliament?
Would you want to see the role of Parliament strengthened in order
to ensure that human rights, which you passionately believe in,
are in fact protected?
Mr Clarke: I said I am not persuaded,
which is less strong to my mind, because I have gone through the
same process as Lord Onslow of being persuaded that things were
correct which I was previously against. I understand the feeling
Parliament is not satisfying Henry Porter so I therefore fall
back on the argument that parliamentary reform and the strength
of Parliament's ability to scrutinise the executive would be my
preferred route. I think you should ask Vernon Bogdanor to decide
what is the key argument. It is the balance between the Bill of
Rights and therefore a judicial review, particularly if the judiciary
have been given the right to override legislation and so this
legislation is contrary to this entrenched Bill of Rights, which
some people would argue, and whether—and I am not a pure
parliamentary democrat because I accept that Parliament can commit
excess—normally the parliamentary process should suffice.
Professor Bogdanor: I wonder if
we are not being perhaps slightly geographically and historically
parochial in our arguments here. It seems to me the onus might
be on those who think we should not have a British Bill of Rights
to argue why it is that the rights which were created in the 1950s
are just the rights we need now and no more. We all of us think,
I suppose, that society has changed enormously in nearly 60 years,
why are the rights which people drew up in 1950 exactly the sort
of rights we need now and no more? That seems to me historically
the parochial argument. The geographically parochial argument
is that we are in such a small minority amongst countries where
our rights depend upon the discretion of Government and Parliament.
The judges can do more than say, "Your rights have been infringed,
there is nothing we can do about it, but we hope that Government
and Parliament will put things right." So far Government
and Parliament have put things right but there is perhaps no reason
why that should continue indefinitely. We are in a very small
minority of countries which have not fully incorporated the Convention.
Q269 Lord Bowness: Supporters of
the European Convention will say that it is not frozen in the
early 1950s, surely the courts interpret it in the light of the
jurisprudence of the courts? I put it to you, is it entirely fair
to say it is frozen at that point in time?
Professor Bogdanor: It is not
frozen in that sense but it is frozen in another sense that there
are certain rights which now occur to many of us, such as for
example rights connected with the environment, which were not
thought of at that time. There is also an argument, and obviously
it is a very controversial matter, about the right to health care
but I am sure people can think of other rights as well—the
information society sort of questions which Henry Porter has raised—people
did not consider those very seriously in 1950—why should
they have done, they did not seem to pose such serious problems
then. But we do live in a very different sort of society now.
I would like to repeat what I said earlier, that if the framers
of the Convention, which included British Conservative lawyers,
were here today they would probably imagine a wider set of rights
than were in that Convention which was good for its time but of
course society advances.
Q270 Lord Bowness: Chairman, forgive
me, I asked the question and I should not challenge the answer
but, if you are going to include those sort of matters, do you
not get into the same difficulty that the framers of the Charter
of Fundamental Rights got into, whereby including principles as
opposed to the Convention rights means they have to virtually
make all principles subject to national laws? Yes, the environment
might well be a great issue that people would want to see mentioned,
but you can hardly have it on the basis of something universal
across the piece as a principle. It would either have to be subject
to national laws or, in our case and the case of 26 other countries,
possibly European Union laws on the environment, but it would
be on laws produced by some legislative process rather than a
statement of principle in a document.
Professor Bogdanor: Yes, indeed,
it would be a standard which Member States of the Council of Europe
would be expected to conform to. I happen to think that is a very
good example for those in favour of a British Bill of Rights because
obviously the right to environmental protection depends upon certain
duties being fulfilled by numerous people and organisations. So
that would bring out one point, that rights involve correlative
duties and responsibilities. Many are talking about a Bill of
Rights and Responsibilities; in areas that does not make sense,
but I think it perhaps does make sense in the area of the environment.
Q271 Lord Morris of Handsworth: My
understanding of your position, Professor, is that our rights
are not to be frozen in the 50s, 60s, 70s, or whatever period
in time. Would you therefore support the possibility of amending
a Bill of Rights, were we to have one, to make it much more flexible
in order that it could in fact represent social attitudes or infringements
of human rights at a particular point in the future?
Professor Bogdanor: Certainly
it ought to be amended but not I think by the normal parliamentary
process.
Q272 Lord Morris of Handsworth: What
law would you use then if you support an amendment?
Professor Bogdanor: I think it
might be reasonable to say that the House of Lords should have
an absolute veto over amendments, as it does over extending the
date of a general election. If one did not have that provision
it would be possible for a temporary majority in the House of
Commons to alter the Bill of Rights for purely political purposes
which obviously one wants to avoid. But my proposal would depend
I suppose on retaining the current House of Lords, a non-elected
House of Lords. We give the House of Lords power to stop the Commons
extending the period between general elections beyond five years—the
Lords has an absolute veto—and that is a kind of constitutional
long-stop. So perhaps that kind of constitutional long-stop would
be appropriate to prevent the Bill of Rights being amended by
the normal parliamentary process, and that would emphasise its
importantance as a constitutional document.
Q273 Baroness Stern: Could I come
in and ask something about responsibilities because you did mention
this in your answer before last. I know that Henry Porter thinks
the idea of a Bill of Rights and Responsibilities is a bad idea,
and I understand that Kenneth Clarke thinks it is "platitudinous
and bizarre"—is that right?
Mr Clarke: It is a perfectly sensible
debate to have but it tends to become a platitude because everyone
accepts one's rights in society carry with them certain duties
and responsibilities, it is not a great original insight which
is being claimed by people who are suddenly making themselves
philosopher kings on the subject at the moment.
Q274 Baroness Stern: Could I ask
Professor Bogdanor, who did say—at least I thought I heard
you say—maybe there is something in this idea about rights
and responsibilities, in the sense it could apply to the environment?
Do you think it would be appropriate to have any responsibilities
in a British Bill of Rights and do you think there is a connection
between, "You will only get your rights if you are good with
your responsibilities"?
Professor Bogdanor: It seems to
me that all our rights depend upon others discerning their responsibilities.
For example, if I have a right to freedom of speech, you and others
have a responsibility not to interfere with my exercising that
right. The point I was making about environmental rights is that
this is a situation where the correlative responsibility is absolutely
obvious. As you suggest in your question, the issue of rights
and responsibilities has been taken much further in two different
ways. The first is to try to answer the problem of social cohesion,
and there I agree with Kenneth Clarke very strongly that a Bill
of Rights and Responsibilities makes no sense, it is confuses
what can be achieved by the law with what we need to achieve by
social and political means; the problem of social cohesion is
very complex. As to the other point, that our rights should depend
upon our responsibilities, that cannot be correct. I think the
former Lord Chancellor, Lord Falconer, said that there were only
two criteria for our having rights, the first was that we were
human and the second was that we were here in Britain. Obviously
some people who are here in Britain are not citizens but they
have rights just as much as citizens, so I think the suggestion
that rights should depend upon responsibilities argument is a
very poor one. Some people have implied that, that if you are
not a responsible citizen you do not have any rights, and that
I think is quite mistaken.
Q275 Earl of Onslow: I think actually
it is all right to be irresponsible but take the consequences
if you are.
Mr Clarke: I think you have a
right to do whatever you want until Parliament and the law forbids
it, in any free society. You are open to criticism if you exercise
your freedoms in a way which makes a thorough-going nuisance of
yourself, and it is up to Parliament to do something about it
if a lot of people are doing it. I think it is dangerous if people
start saying that people do not have human rights in a society
unless they demonstrate they are behaving responsibly in some
other way. For welfare benefits, of course, you should lay down
rules and say, "It is perfectly open to Parliament to agree
the rules which say you are not entitled to the benefits if you
won't do this to qualify for it", but to dress that all up
in human rights' language I think is a mistake and I agree with
Professor Bogdanor. The whole question of how do you get a society
to feel mutual obligations to each other and get people to behave
in a responsible way, whilst appreciating they should not take
for granted all the rights they have, is not something I would
either legislate for or litigate about.
Q276 Chairman: Can I come back to
the issue of social and economic rights which we did not fully
explore? Perhaps I can ask Professor Bogdanor to start with. I
think Ken's view is, if they are aspirational there is no point
having them, to summarise, but if you look at the South African
constitution they have very, very tightly constrained justiciability
of rights which are subject to resource implications. So there
is a degree of justiciability but it is very, very difficult in
the way it is phrased. Albie Sachs said to us, "There is
nothing wrong with aspiration and a country without aspiration
is a country which does not really think about its future",
or something along those lines. Do you think there is a role for
social and economic rights if they are properly worded and constrained
in a similar way to South Africa?
Professor Bogdanor: I accept that
one should not put aspirations in a Bill of Rights, that a Bill
of Rights should be concerned, to refer to an earlier question
by Lord Bowness, solely with what is justiciable. Within that
limit, I think one can require a certain minimum from Government
in the modern world in social and economic matters and there already
is, as I said earlier, one social right in the Convention, which
is the right to education. No one supposes that this gives you
a right to a certain sort of education or a certain standard of
education. Principle for a very minimal floor, and I cannot see
why by analogy the right to health-care, for example should not
also be there. I cannot see the force of the argument that social
and economic rights as a matter of principle are not suitable
for inclusion in a Bill of Rights.
Q277 Earl of Onslow: On this issue
of right to education, what is education? Does it mean at the
age of 6 you can count to three, or does it mean that everybody
has to be a professor of nuclear physics by the age of 30 or a
professor of law at Oxford? How do you define education and how
do you actually make it, as Mr Clarke says, justiciable?
Professor Bogdanor: This is a
matter for the courts and there is a large case law I believe
on this issue. The only point I was concerned to make was that
it does not seem to involve insuperable difficulties. Obviously
no one suggests that everyone has a right for example, become
a professor of nuclear physics by the age of 30, but I think one
can rely on the judges to interpret this sort of issue fairly
sensibly.
Mr Clarke: It has never actually
been used, as far as I am aware. I am not aware of any litigation
because everyone has a state education system and nobody seems
to have used it, but on health they might. Do I have a right to
demand homeopathic treatment—that would be a very controversial
case.
Chairman: If we look at how South Africa
has done it, they seem to have squared the circle quite well on
health, but that is going into a lot of detail we have not got
time for today.
Q278 Mr Sharma: What kind of consultation
should there be about a British Bill of Rights?
Professor Bogdanor: That is an
extremely difficult question to answer because of course the danger
is that the consultation is purely amongst the articulate. I believe
that the Government is thinking of adopting a procedure which
was used in British Columbia over the electoral system whereby
a random selection of people is to be brought together in some
sort of convention to consider what they regard as the essentials
of a British Bill of Rights. I am not convinced that is necessarily
the right solution but I find it difficult to think of anything
which would be more suitable. There obviously needs to be very
widespread consultation and not just amongst interested pressure
groups and the articulate. The great danger is consultation only
amongst the articulate, and one has to try and secure an institutional
solution which will enable a very large number of British people
to be involved in the arguments and to feel they owned a British
Bill of Rights. This is perhaps a part of citizenship education.
Your question is fundamental but very difficult question to answer!
Mr Clarke: I would have the ordinary
consultation. I think it is quite important to consult on it.
I am afraid I think that normal consultation, of which I approve,
tends to get a not-completely-representative set of responses
but as long as you realise the responses you are getting are from
articulate interest groups—and actually there are not any
particular vested interest groups in this area—the response
you get back tends to cover a range of issues. I would be very
dubious about citizen's juries and random selections, particularly
if they are going to start debating Britishness and what British
values are and how British society should be made to recognise
British values more. I do not have excessively patronising or
scornful views of public opinion, I usually agree that the public
are more intelligent than either their politicians or their journalists
and if you talk it through for a bit, people begin to get a hang
of what you are talking about, you tend to get more sensible ideas
than the first reaction. But this is a very dangerous area. As
far as the press is concerned, there is a section of the press
for whom the mention of human rights tars somebody as being a
wet, liberal, hopeless character who is failing to stand up for
British interests in society, and there is no point in encouraging
that too far.
Mr Porter: I agree with that.
It is astonishing how the reputation of human rights, the thing
which guarantees us all our freedom, is so denigrated. It is one
of the most astonishing turn of events in these last ten years.
You can blame the papers—I get large numbers of emails when
I write a column and you get some of this in the emails and it
is fascinating to respond to them and say, "Why do you think
this" and just go through the motions of explaining it. I
do believe in consultation. I was at a dinner in Hay-on-Wye at
the book festival, the literary festival, last year, and the dinner
was set up by the Guardian to discuss human rights and
the Bill of Rights particularly, and in that room were a number
of very distinguished people—Lord Bingham, Sir Martin Rees,
the Astronomer Royal, Simon Schama, the historian, the head of
the British Museum, and so forth, and I was very struck by how
at 1 o'clock in the morning there was a really fascinating discussion
of what should be in a Bill of Rights. If you put a group of individuals
like that together to form some kind of proposal you can then
push it out to the public—and I would include in that group
lawyers as well as scientists and writers, scientists particularly
who understand where we may be going. I certainly do believe in,
first of all, educating people about the possibilities, what might
be in a Bill of Rights, before you ask them for their opinion,
so you have something to which they can react.
Q279 Mr Sharma: What sort of body
should be established to consider the range of options and make
recommendations to the Government and Parliament?
Mr Clarke: A Select Committee
is not a bad start! I would not set up a special body. In recent
years everybody has been very fond of setting up expert studies
and having reports as a basis for government policy, the present
Prime Minister is very fond of that method of proceeding but although
he has had some very distinguished people advising him I have
always had a strong suspicion that the conclusions they supposedly
reached were pretty well determined before the process started.
In practice I do not think any Government will completely let
loose control in the end of the first draft at least of anything
which gets canvassed, but I think they should listen to Select
Committees and indeed groups of people at 1 o'clock in the morning
at book festivals wherever they are.
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