Examination of Witnesses (Questions 380-399)|
CLANCY OBE AND
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 problemthat 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
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
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 decisionwhen
you make the political decisionand 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
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
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,
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 thatI hope we all agree with that anywaybased
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.