Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 380-399)


10 MARCH 2008

  Q380  Lord Dubs: In your evidence you state that you do not think that a British Bill of Rights should include responsibilities, and you say that this is "fundamentally a political question". Could you expand further and say why you think that responsibilities should not be included?

  Mr Clancy: I was reading a speech by the Lord Chancellor. I did actually prepare for this session, you see. He made the speech in January and he makes an interesting comment: "Let me say here that I fully understand that there is not and cannot be an exact symmetry between rights and responsibilities. In a democracy rights tend to be vertical, guaranteed to the individual by the state to constrain the otherwise overweening power of the state. Responsibilities, on the other hand, are more horizontal. They are duties we owe to each other, to our neighbour in the New Testament sense", so in a sense I think that is where I am finding some difficulty in terms of responsibilities. What the Lord Chancellor seems to be indicating in this speech is that we are moving into almost a theological field about responsibilities and, whilst looking at the Gospel of St Luke, chapter 10, verses 25-37, you can see that the neighbour principle lies at the heart of many of our legal institutions -remember the case of Donoghue v Stevenson and Lord Atkin's famous judgment about the snail and the ginger beer bottle and the responsibilities, the liability, of a manufacturer for the ultimate consumer's detriment in the event that there comes to be a problem—that is all very well in a legal setting where the House of Lords makes a decision, but when we are talking about politicians setting out their responsibilities in words which tend towards the theological then it may be the case that the Lord Chancellor and the Archbishop of Canterbury will get into some trouble together.

  Baroness Stern: Can I just find out a little more about the snail and the ginger beer bottle?

  Chairman: I will tell you about it later.

  Q381  Earl of Onslow: It was a stone bottle; you could not see the snail inside it and the retailer was not found responsible, is that not right?

  Mr Clancy: It was an opaque bottle, you are right; it was glass. I have actually seen a Stevenson's ginger beer bottle.

  Q382  Chairman: Not the original exhibit?

  Mr Clancy: The original exhibit cannot be found, Chairman, but this lady poured out some ginger beer which allegedly contained parts of a decomposed snail. She drank it in what is known as an "ice cream float" and then suffered gastroenteritis. The case went to the House of Lords in 1932 on a point of law because earlier the Court of Session had decided that you could not find a liability in the manufacturer in the case of Mullen v Barr, but in the House of Lords Lord Atkin came to the conclusion that there was a responsibility on the part of the manufacturer because it was within reasonable foreseeability that someone would be consuming the product and that there was a duty of care by the manufacturer to the ultimate consumer. Therefore, Mrs Donoghue won her point of law and settled the case out of court for £500.

  Q383  Chairman: We will never know whether there was a snail or not because it was never reported.

  Mr Clancy: It was never proved. It never went to proof. It was only a point of law.

  Q384  Earl of Onslow: When I was doing my national service I was flipping through the Army Book or Manual of Law and it is in there somewhere, and that was in 1956 before most people in this room were alive, I suspect.

  Mr Clancy: It would be very interesting to see what kind of ginger beer the Army was drinking in those days.

  Q385  Earl of Onslow: The questions I have down have more or less been asked but I would like to encapsulate my question to you, which is this. Would you see a Bill of Rights solely as protecting the Queen's subjects from an over-mighty state, which Jack Straw talks about, because it seems to me, and we have probably all read the Henry Porter article; that was basically his evidence to the JCHR the other night? That is where I come from. I find that it is the over-mighty state which is passing law after law which offends my sense of justice, and that is where I see the necessity for a Bill of Rights. That seems to me to apply to England, Scotland, Wales and Northern Ireland, so it is supra-British and a protection of the subject against an over-mighty state.

  Ms O'Neill: Standing what we have already said to the effect that the Law Society would be hesitant about saying too much about the precise of a Bill of Rights, I think the traditional view of a Bill of Rights is certainly to protect the citizen against the power of the state. All I would say in addition to that is that as the jurisprudence of, for example, the European Convention on Human Rights has developed it has become clear that the protection against state action can also be extended to a requirement for positive state action, for example, to provide housing or to provide welfare assistance for those who without that assistance would have their rights breached. I think already we are in a position where we have a rights framework which imposes positive duties on the state to give things as well as imposing restraints on the state not to do things.

  Q386  Earl of Onslow: Could you elaborate that a little bit more?

  Ms O'Neill: An example which comes to mind and which I think may have been referred to in the previous session is in relation to, for example, asylum seekers or aliens and the obligation not to treat those persons in a way which is inhuman or degrading. That obligation not to do something on the part of the state can be interpreted and has been interpreted by the courts as extending to providing positive welfare assistance to asylum seekers, so, although the right is in language of "Do not do X", the interpretation of that right includes "You must do Y".

  Q387  Earl of Onslow: I follow that, but that has been the case all along, has it not?

  Ms O'Neill: Absolutely.

  Q388  Earl of Onslow: That applies to things that do not apply to you, like habeas corpus, Magna Carta or the Declaration of Rights. They presumably had those to upsize as well, did they?

  Ms O'Neill: Yes.

  Q389  Earl of Onslow: So there is nothing new in that?

  Ms O'Neill: Agreed.

  Q390  Lord Bowness: Just before we leave this section, you answered one of my colleagues' questions as to what rights might exist in Scotland and elsewhere but do not exist in England, and you gave as examples free prescriptions in Wales and free personal care in Scotland. Are those really rights in the sense that we are discussing rights in a Bill of Rights or are they in fact benefits which flow from the political policies pursued by those particular administrations? In deciding to do both those things it is surely a question of political choice how you use your resources, not as a matter of principle whether you provide health and social care, which can be done in a variety of different ways? If we include those sorts of things in any Bill of Rights is it not going to restrict the ability of the devolved administration here, or indeed administrations elsewhere in the United Kingdom, to make those political determinations?

  Mr Clancy: The reason why I gave those examples is that they are couched in terms of rights to free personal care, rights to free prescriptions, but I can see exactly where you are coming from. You have touched a nerve in terms of what is meant by a "right". Whilst we can see that ECHR provides a list of rights, and in certain instances responsibilities because there are co-related aspects, it is quite difficult to see beyond those rights enumerated in ECHR, ones which would not stray into the areas of social and economic policy; I think that is probably right. When one compares ECHR with other international human rights instruments, such as the UN Declaration on Human Rights, it is possible to see that in terms of basic fundamental human rights probably the ambit of them has been circumscribed by the ECHR. It is when we make the political decision—when you make the political decision—and when the country agrees to such a political decision that we move into other areas where that which has not been yet considered as a right becomes a right and it really depends on how we define what a right is.

  Q391  Lord Bowness: Would you not have to make the same kind of saving clauses as are made in the Charter of Fundamental Rights, of which half essentially is a re-statement of the Convention rights? The other half is matters which probably could be described as social and economic rights. I think there is an attempt to describe them as principles, but they are almost all made subject to the provisions of national legislation.

  Mr Clancy: Yes, I think so. We would have to make such a saving provision.

  Q392  Chairman: Or you could approach the question of social and economic rights by circumscribing them in relation to issues related to resources as they do in the South African constitution. However, if we are to take the example of healthcare I think it would be a very strange Bill that had that very detailed level of specificity to which you were referring, as to prescription charges, but if, for example, you had a right to healthcare, however it were framed, there could be a bottom line that said, "If you cannot afford the prescription the state should provide it for free", which would be a different thing. It is effectively the system we have in England at the moment. We could argue whether it goes too far or not far enough, but that would be an example of how you might be able to deal with that.

  Mr Clancy: Another example might be where the current Article 6 provisions for right to a fair trial do not actually say that you have a right to legal aid, and we rely on jurisprudence from Strasbourg in Airey v Ireland to provide for that consequent right to legal aid, which I referred to as a right of access to justice in the context of our memorandum. Maybe what we should look to do is elaborate the rights as they are enumerated, which would be to search through the jurisprudence of the court and see where there are these gaps which have been filled by jurisprudential extension.

  Q393  Chairman: Could I raise the issue of horizontality again? I put to the previous witnesses the issue of the big multinational. Supposing we had a right to privacy. Why should an employee of a big multinational not be able to rely on that right against surveillance by their employer, for example?

  Ms O'Neill: Our perspective is that the way the Human Rights Act is drafted at present there is at least the potential for such an interpretation already.

  Q394  Chairman: But it is not enforceable against a private employer?

  Ms O'Neill: Not a wholly private employer unless that private employer can be viewed as a public authority against whom direct rights would lie. In terms of the law of privacy I do not think we have any difficulty with the general obligation on the courts to interpret the common law in a way which is compatible with Convention rights and to extend Convention rights in a horizontal way by that mechanism.

  Q395  Chairman: So you would not like to see horizontality directly enforceable in that context? You have to rely on the courts interpreting it in that way?

  Ms O'Neill: To the extent that the Cabinet Secretary referred to the protection of rights being a state responsibility, I think there is something in that. Where we would like to see greater activism is in relation to the definition of "public authority" within the Human Rights Act as it stands at present.

  Q396  Chairman: I think we all agree with that—I hope we all agree with that anyway—based on our previous discussions on the YL case, but this is a slightly different issue. This is where you have got an entirely private big company, nothing to do with the state at all, that decides that it wants to spy on its employees and what they are up to and that sort of thing.

  Ms O'Neill: I think, with respect, that that in some respects is an easy example to give. The more difficult example is the small employer who is not a multinational and the extent to which we as a society want to impose those obligations on all other citizens in all of their other dealings, and, without taking the easy route out, I think that is a bigger question than the Law Society of Scotland can answer.

  Q397  Baroness Stern: Since we are talking about what else it could be, I wonder if you have any views on how well the ECHR does with the rights of children, for instance. We have ratified but not incorporated the Convention on the Rights of the Child and it might well be felt that in that area there is a lot more we could do to make ourselves much more bound by the basis of the Convention on the Rights of the Child. Do you have any views on that?

  Mr Clancy: The Children (Scotland) Act 1995 gives children many rights which emanate from the UN Convention on the Rights of the Child, and, of course, we have a Commissioner for Children and Young People here in Scotland, Dr Kathleen Marshall. Without being cheeky, I suspect that she would be better placed to answer this question than other people, but maybe I could take that question away and write to you after I have talked to Christine about it in a place where we can discuss it, if you do not mind.

  Q398  Lord Dubs: In your view what would be the appropriate balance between the powers of the judiciary and the power of the legislature under a Bill of Rights? Does this have any implications for parliamentary sovereignty?

  Ms O'Neill: We again start from the perspective, in Scotland at least, where the notion of the judiciary having the power to strike down legislation is not novel or shocking. That being said, the judiciary in Scotland have not yet struck down any legislation of the Scottish Parliament, so we are still waiting for the impact of that sort of ruling. In terms of the sovereignty of Parliament and the balance of the powers of the judiciary and the legislature, again, looking at what we have already, we, of course have a situation in the UK at present where sovereignty of Parliament is not entirely unlimited. In the context of the European Union our domestic courts—-

  Q399  Earl of Onslow: May I just interrupt you? It is unlimited because it was found in the Appeal Court by Lord Justice Laws that Parliament is quite entitled to pass legislation which says, let us say, that the Common Fisheries Policy does not apply, by specifically repealing sections of the 1971 European Accession Act. That has become established as a slightly constitutional act in that the doctrine of implied repeal does not apply to that Act. You have to specifically repeal it and then it can be repealed, so the doctrine of the supremacy of Parliament is still there. Okay, it is pushed back a little further, but the absolute supremacy of Parliament is still there because no Parliament may bind its successor.

  Ms O'Neill: I would go no further than to point to the decisions of the House of Lords to date where legislation of the UK Parliament has been disapplied. I would not go any further than that.

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