Examination of Witnesses (Questions 420-439)
THE RT
HON JACK
STRAW MP AND
MR MICHAEL
WILLS MP
21 MAY 2008
Q420 Chairman: Good afternoon. This is
our last open session in our inquiry into the British Bill of
Rights. We are joined by the Rt Hon Jack Straw MP, Secretary of
State for Justice and Lord Chancellor, and Michael Wills MP, Minister
for State, Ministry of Justice. Welcome to you both. I think you
wanted to make an opening statement, Jack?
Mr Straw: Chairman, we thank you
for the opportunity to give evidence here. I wanted to make a
few remarks in terms of opening to try and set the context for
a British Bill of Rights and Responsibilities. When we had the
idea of incorporating the European Convention into British law,
which was actually in opposition in the mid 1990s in co-operation
with the Liberal Democrats, and then when I brought the Bill forward
sometime in 1997, and during its parliamentary passage I made
it clear, as did everybody else, that this was not a destination.
It was bound to be the start of a new chapter of the development
of British rights and concomitant responsibilities. Interestingly
at the time there was some contention about whether it was appropriate
to incorporate the European Convention itself and I was anxious
to achieve a situation where we had a consensus so far as was
possible between the parties. During the process, both in our
House and in the Lords, as well as just explaining what we were
doing, various changes were made to the Bill, not to detract—we
could not and would not—from articles of the Convention,
but for example over issues of remedies to try and provide some
satisfaction for worries by the churches and religious establishments.
At the end of that I recall, and it is shown in the record, that
Lord [Nick] Lyle, who was the Shadow Attorney General, leading
for the Conservatives used the phrase that he "wished the
Bill well" at third reading and there was no vote against
it at third reading. Reflecting on what has subsequently happened,
there is no question that it has become a received part of our
constitutional arrangements. It is highly valued by many people.
At the same time, and particularly given the shock and the extreme
stress-testing to which all legal regimes and democracies have
been under since 9/11, it has also been suggested by some that
it is some kind of "terrorists" charter. That is inaccurate
but part of the framework against which we are working today.
The question then arises what is the purpose of developing from
the Human Rights Act, building on it and not detracting from that
Act or the Convention, but into a British Bill of Rights and Responsibilities?
First, I think there is a platform in our politics to develop
the Human Rights Act because, although I am quite sure that whatever
we propose at the first stage will obviously be subject to a debate,
and I hope it is, all three parties now accept contemporaneously
that the Convention rights remain. That is true of our party,
true of the Liberal Democrats and it is also now true of the Conservatives.
That is a really important building block because I have always
been conscious that whilst constitutional changes may well be
contentious—you cannot always achieve this—but they
are more likely to endure if you achieve a broad measure of agreement
and should not be partisan tools for any one party. What are we
doing? The first thing is to broaden the base of what it means
to have a Bill of Rights. To say what everybody knows intellectually,
or if they think about it they appreciate that with rights go
responsibilities, with privileges go duties, but it is not necessarily
obvious to people because that fact is reflected in parts, although
not all explicitly, of the European Convention. Therefore it has
certainly been my judgment for a long time, and it is shared now
across government, that we should have what amounts to a single
text which says yes, these are your rights, but along with rights
goes responsibilities. I was asked this question earlier today:
how would I explain that in my constituency? I would actually
find it very easy because I have people coming to see me often
who have run into trouble with the law who are claiming rights
and I wish them to be able to claim those rights, but I wish them
to understand that they also have responsibilities to their victims,
to their neighbours and to wider society. I would also say to
them if you think about other countries which you may well have
visited—France, the United States or South Africa—in
each of those countries people have a better idea of what their
rights and responsibilities are because they have single texts
which have often come out of real internal or external conflict—France,
internal conflict, in the United States a bit of both, in South
Africa out of internal conflict—and so people have had to
articulate what their rights and responsibilities are. It gives
people a better set of handholds as citizens. That is one thing
we want to do. The second is to look at whether, within what would
amount to a single text, it is possible safely to develop what
is grouped as economic and social rights. There are some economic
rights whereby in my judgment and across government you run straight
into resource allocation and that it is simply not appropriate
for the courts to make those decisions in place of government.
That is also the position of the judiciary—Baroness Hale
recently and Lord Bingham—but there are other social rights
particularly and some economic rights which are already the subject
of a great body of detailed specific legislation. What we are
looking at is whether in many of these fields—education
and health are two obvious ones—it is not possible to distil
the basic rights and responsibilities that people have in these
areas into a clearly comprehensive statement and be subject to
the detailed law as well, but it would still give people a sense
of what they are entitled to from others because the state in
a democracy is everybody else and what they are expected to give;
in other words, what they give and what they get. The last point
I wanted to make as far as that is concerned, as you and your
Committee are better aware than most, there are really three alternative
models if you are going to put rights in a text. You can have
declaratory text which is non-justiciable; you can have deliberative
and interpretive text, which I will come back to, or you can have
text which itself is deliberately and explicitly justiciable in
its own terms. Where we are in the development of these rights
is first of all to say there is a point in having just declaratory
text. It is not an idle exercise if, in an overall statement of
rights and responsibilities, you simply end up with declarations
because declarations can serve an important purpose. My understanding
is that that is the case for certain declarations of rights in
the Irish constitution. At the other end of the scale I am very
cautious to say, nearly opposed, and so is Michael, to the idea
that we should develop new generic rights which were themselves
justiciable because I think that would cause more problems than
it solved, but we both believe that this is going to be a long-running
and iterative process. There is quite a case for developing deliberative
and interpretive principles in these fields which would not give
rise to a cause of action themselves, but would be used when,
for example, people were accessing their rights of education or
health. That is a sketch of where we are and I hope that is helpful.
Q421 Chairman: Thank you for setting
out why you are pursuing the Bill of Rights issue and why you
think it is needed. Is it consensus across government or is it
a MOJ project? Is everybody signed up to it?
Mr Straw: There is indeed a consensus
across government. What was in the Governance of Britain
Green Paper which came out in early July last year was discussed
and explicitly agreed in Cabinet. The Prime Minister, in his statement
in the House on 3 July, made explicit reference to the possibility
of developing a Bill of Rights and Responsibilities. It falls
to Michael and to me to develop this and to officials and lawyers
in my department who, if I may say are extremely good, to do the
legwork but we cannot possibly deliver everything here unless
we have the rest of the Government on board. This is not just
a narrow discrete area of criminal procedure where most of the
rest of Whitehall, provided it does not cost anything, leave it
to MOJ Ministers; this is across government.
Q422 Chairman: You mentioned that
there is a broad consensus now about Convention rights. Does the
same apply in relation to the Human Rights Act? Can we have your
assurance that there is nothing in the project that is going to
weaken the Human Rights Act?
Mr Straw: You have that assurance,
yes. There is consensus across government about that and I have
said that on endless occasions. There is not a political consensus
about that at the moment. It is for the opposition to speak for
themselves essentially. What they have said, as I understand it,
is that they would wish to modify the Human Rights Act and they
believe that if they were to modify the use of the articles of
the Convention this would give them greater benefit of the margin
of appreciation. One of my pedagogical enterprises at the moment
is to explain that this will not happen and there is no way, as
long as we remain committed as a nation, which the Conservatives
have said we should to the Convention, that we can arbitrarily
legislate the domestic legislation to change what Strasbourg is
going to do and subject to Strasbourg; indeed, we would end up
in a worse situation. If your colleagues will accept that one
of the benefits of the Human Rights Act, and one of the many ones
I argued for myself ten years ago, was that we had been in the
worst of all worlds. We were subject to the Convention and Strasbourg
but we were not able to develop our own jurisprudence with the
benefit of our extremely good judiciary. We have now and actually
it is helping to mould what happens in Strasbourg. There is a
last point here which is there is a reference made in Mr Cameron's
speech as to what happens in Germany where it is believed that
they get a better margin of appreciation. That is not the case.
There is this arcane argument for us—not for the German
lawyers—about competence versus competence. Leave that aside
for a second. The reason why it is not an issue in Germany is
because the German constitution provides a greater level of protection
than does the European Convention on Human Rights for reasons
that everybody historically will understand. All of us, those
who have been, say Home Secretary, Foreign Secretary or Justice
Minister, have concerns about the interpretation of Chahal,
for example. Chahal was a judgment given in 1996, four
years before the HRA came into force, and there is no way if we
want to stay within the Council of Europe and the Convention that
we ourselves can legislate round that and I do not believe any
British Government would do so.
Q423 Chairman: The follow on question
from that is, perhaps on that point you make about Germany having
rights that go beyond the Convention, what will the Bill of Rights
do that the Human Rights Act does not do? Will it give people
additional rights beyond as the general constitution?
Mr Straw: It does two things:
one is it brings out that with rights go responsibilities. I could
go into this.
Q424 Chairman: We will ask you about
that as we go along.
Mr Straw: There are plenty of
examples in the texts of other nations' constitutions where this
balance is provided explicitly. If I think about my relationship
with my constituents, to be able to say to people you have certain
basic rights and responsibilities and here is one little booklet
or a few pages on the net that you can access that tells you this
would be terrific. Other countries have arrived at a position
like that and I do not see why we cannot. That is not more new
rights but it is putting rights in a proper context. One of the
things that has concerned me is that the upside of a consumer
society is that people have all sorts of consumer goods and they
can get what they want now. The downside is that relationships
tend to be commoditised and people see rights as some good which
in some ways they do not even have to pay for and they can just
take and that is not the case. Although the balance between rights
and responsibilities is not symmetrical, rights of the Convention
kind are those which we have against the otherwise over-weaning
power of the state. Responsibilities tend to be more horizontal
to your neighbour in the biblical sense as well as to the community
which sits above the state. They are really a very important part
of helping to make a democratic society operate; that is one thing.
The other is in this area of economic and social rights, which
is not really covered to any serious degree in the Convention.
It is in plenty of EU text and to a degree in the Charter of Rights
in the Lisbon Treaty but not here.
Q425 Earl of Onslow: Secretary of
State, those of us who come to the Bill of Rights from what can
best be classed as an old-fashioned libertarian state, it seems
to me there are two points here: one is the only responsibility
the subject has is to obey the law and nothing else, so you cannot
legislate for any other responsibility. Secondly, what has been
concerning me, and I think quite a lot of other people, is the
increasing power of the executive to pass acts of parliament—for
instance, the abolition of double jeopardy, the attempt to abolish
trial by jury for fraud—there is a whole list of these things.
Henry Porter is a perfect example of somebody who writes them,
which I feel extremely strongly about. The latest one that has
come up is this thing of saying that all telephone records, all
email messages, all internet access, should be kept and logged
for a year is what it is. Those seem to me something which the
State should not do. It is no business of the State. It is an
abuse of the individual liberty and the liberty of the subject.
We have on one side a, for want of a better word, the intellectual
side of Tom Paine and on the other side you have the intellectual
side which is the common law side—the lovely, wonderful
English side—which says the point of the law is to limit
the power of the state. The subject can do anything it likes unless
it has been told it cannot by the Queen in parliament. It seems
to me what is missing in the whole thing of the Government's approach
to it.
Mr Straw: My Lord, I am not sure
where you are putting Tom Paine, but funnily enough I quoted Tom
Paine in a lecture I gave in October where he was making the point
that it is important that rights and obligations are reciprocal.
He said: "A declaration of rights is, by reciprocity, a declaration
of duties also. Where there is my right as a man is also the right
of another and it becomes my duty to guarantee as well as to possess."
I am as concerned as you are, and Mr Henry Porter is, about ensuring
that people have access to their rights in the criminal procedure
and not to have unnecessary, unjustifiable interference by the
State. But where I depart from you is in what appears to be your
belief that it is possible to run a society today—indeed,
it has never been possible—based entirely on libertarian
principles which I see as essentially selfish where people are
simply claiming their rights and saying I have no obligations
to anybody else. Yet the issue about your only obligation is to
obey the law begs the question in any event about what is in the
law. I can argue about the abolition of double jeopardy or fraud
trials. The issue there is not about taking people's rights away
explicitly, and bear in mind that juries are the exception, not
the rule, across Europe and indeed in most countries in the world
which are perfectly democratic and libertarian, so these two do
not go together, although I happen to think that juries play an
important role in our criminal law and in our culture, the issue
there is when you are faced with a clear choice do you come down,
say on double jeopardy, on the side of someone who is unquestionably
guilty for whom there is DNA evidence that they are guilty of
a rape or a murder because of a double jeopardy law, or do you
adapt that to take account of changing circumstances and say actually
the rights of the victim and of the public to ensure that somebody
who is plainly guilty of the most egregious crime ought to be
tried and locked up and should not be able to dodge round the
law just because of a rule which was brought in in very different
circumstances. On the issue of telephone records, I can talk about
this, and I am as concerned as anybody who I phone, who I send
a text to, boring though these things are, should not be accessible
with any facility save for the real need of criminal investigation
or counter-terrorism and so on. There is a balance here and I
was going to give you this last example, my Lord, which is this.
In the law children and parents have various rights of education.
What is also in the law, and we have tightened this, is responsibilities
on parents not only to make sure their children go to school,
but all sorts of more explicit responsibilities. All parents do
not realise this. There is text used in other countries that there
is a case—I put it no higher because this is a developing
process—for saying to parents yes, you have rights and so
have your children but you have also got responsibilities and
this is what it says and this is what through representatives
and debate has been agreed by the British people.
Q426 Dr Harris: I wanted to ask you
about the question of the British Bill of Rights. You call this
a British Bill of Rights. Does that mean a Bill of Rights for
British citizens?
Mr Straw: Dr Harris, a lot of
Convention rights, for example, are there for anybody in the jurisdiction.
I do not think anybody is suggesting a system where you had one
set of rights in a criminal trial under habeas corpus if you were
a British citizen or if you were not, that would be risible and
completely contrary to the Convention, so let us be clear about
that. The "British" adjective in my view is important
because there is this implication in the air that these human
rights which equal in some people's minds, not mine or yours,
a terrorist's and criminal's charter, are a European imposition
and by Europe it is meant "the other", that somehow
we are not part of Europe. I think it is really important we break
that down. One can do it in longhand by pointing out that we were
the architects of the European Convention, and we were the draftsmen,
but in shorthand by saying what we are doing here is having a
British bill.
Q427 Dr Harris: It is spin in a good
cause, not in a negative way.
Mr Straw: I do not accept that
term because it is a pejorative term. It is explanation. I wish
now we had called it the British Human Rights Act, but there was
not that same sort of climate then. Given how the word "Europe"
has become to mean something foreign, other, unpleasant, I think
it is quite important to say if the British Parliament decides
on something then—
Q428 Earl of Onslow: Fog in Channel,
continent isolated you mean?
Mr Straw: Yes.
Q429 Dr Harris: You could seek to
reclaim the meaning of that rather than sidestep it. Maybe you
could do both.
Mr Straw: I think one could do
both is the answer.
Q430 Dr Harris: I notice in the draft
legislative programme it talked about giving people in the UK
a clear idea. Is that because of the distinction between Britain
and the UK with respect to Northern Ireland?
Mr Straw: There is a drafting
issue about what is Britain and what is the UK. There are some
quite difficult issues about the geographical extent of specific
rights in any new bill, not so much responsibilities but certainly
new rights because of devolution and different jurisdictions.
In fact, in Northern Ireland, which is in the United Kingdom,
it is not Great Britain, they already have developed quite a lot
of instruments rather further than we have. I do not wish this
to be disruptive of the Good Friday Agreement so we have to work
round those.
Q431 Dr Harris: You are saying that
basic human rights might be a devolved issue?
Mr Straw: The United Kingdom is
a single unitary country and it is the United Kingdom Government
which is a signatory to the Convention and which represents all
the parts of the UK which have devolved, but not federal, government.
Our obligations under the Convention therefore apply everywhere.
If there is a case taken here, the public authority against whom
a case is taken here is, for example, the Scottish Executive or
the Scottish Health Board, and that ends up in Strasbourg, the
United Kingdom Government is the respondent. It is just a drafting
problem and one which requires us to work in co-operation with
the devolved assembly.
Q432 Dr Harris: You are not saying
there will not be certain rights that are England and Wales specific
or Britain specific and some that will not be extended to Northern
Ireland? I know that ultimately it is as you have explained under
the ECHR.
Mr Straw: Some of these areas—education
and health are two—are overwhelmingly devolved, although
not all parts—embryology, for example, is not, as you know
and it is a GB-wide issue. Embryology is UK, abortion of course
is GB, so there are these complications. The Human Rights Act
was drafted and, although it received Royal Assent the same month
as the Scotland Act, the two were running in parallel. I was present
at the birth of both. What happened to the Scotland act and also
the Wales act, but the Scotland act more explicitly was that the
Scottish administration was made subject to the Convention in
advance of the UK. It was a slightly odd arrangement but there
we are. The thinking preceded devolution. We just have to ensure
that what we say does not collide with the Devolution Settlement
and, if there is a question of that, it has the consent of the
devolved administrations. It is a tricky issue but it does not
raise issues of principle.
Q433 Dr Harris: It is a process issue.
Mr Straw: Yes.
Q434 Dr Harris: What about the question
of the proposed British Statement of Values? How does that relate
to it? Secondly, the issue of whether there are certain rights
like the right to vote that could be applied selectively to certain
people within the jurisdiction and to citizens and whether the
responsibilities part relates to those rights or not?
Mr Straw: I will ask Mr Wills
to come in on the Statement of Values and I will come back on
the right to vote.
Mr Wills: It feeds in because
any statement of rights, historically and as a matter of principle,
derives in the end from the values of the society to which these
rights and responsibilities apply; it is inevitable. It is true
of the Magna Carta, it is true of the 1689 [Bill of Rights] and
it will be true of this. We see very much the process which is
an innovative process, of formulating a Statement of Values will
feed into this. We will have to see how that process evolves and
we quite deliberately have let go of the process as a government
and want it to be driven fundamentally from the British people
themselves, so we will have to see how that evolves. Certainly
we could envisage a situation where the Statement of Values, which
we hope will emerge from that process, could form the preamble
to such a Bill of Rights and Responsibilities and set out the
values which inform those rights and responsibilities. Going back
to an earlier point about why this is a British Bill of Rights,
although a lot of the rights are universal in their application
and in their origin, the way that they apply, the way that they
are articulated inevitably are particular to this society. This
is not aspirational in the sense that where we use the word "British";
it is descriptive. We see the Statement of Values as being part
of that process.
Mr Straw: On the right to vote
there are a number of rights which follow directly from being
a citizen. It is slightly complicated because in this country
the right to vote in general elections extends to citizens of
Commonwealth countries, of the Irish Republic and to vote in local
and European elections to resident EU citizens, so it is complicated.
Q435 Dr Harris: Other than that,
is there any other area you think might apply just to British
citizens?
Mr Straw: There are obvious ones
which go with citizenship like a right to a passport and the right
to consular assistance which are directly linked to being a citizen
of this country. Lord Goldsmith in his review looked at some of
these. On the right to vote, people do have a right to vote. I
have had plenty of discussions on doorsteps, and I am sure you
have too sometimes, about whether people have a duty to vote if
they want to have a complaint. Some countries have compulsory
voting. I do not think people would find that acceptable in this
country. The idea that at a declaratory level with a right to
vote and a right to take things up in a democracy and maybe a
non-justiciable duty to vote is one we should debate.
Q436 Dr Harris: On this question
of responsibilities—I am not going to go far because I think
Lord Morris has some specific questions on this—the state
has some responsibilities within the system, for example, to remedy
and implement judgments of the Strasbourg Court in good time.
The Connors case, the Hirst case, which is actually
about citizens who the European Court of Human Rights thinks have
a right to vote—some prisoners—and then some of these
Northern Ireland cases—Jordan, McKerr, Finucane—they
have been sitting around for a long time. In my view the Government
has abrogated its responsibilities, its part of the deal, by not
sorting these out. Would you accept without taking personal responsibility
perhaps that there is a responsibility to do your side of the
deal?
Mr Straw: I accept that in general
terms, of course, that the State, Parliament has all sorts of
responsibilities and, self-evidently, the Executive has responsibilities
to meet its obligations in international instruments that we have
signed. Our record in terms of compliance with Strasbourg judgments
is pretty good and better than some Members of the Council of
Europe. We are running a second consultation on prisoners' voting
rights, which is a tricky issue.
Q437 Dr Harris: I think there has
been a significant criticism about delay. My last question is
about this issue where you used the term "selfish".
You said in your speech last year on Magna Carta—this is
the thing the press picked up on perhaps because you pointed them
at it—that you feel that "some people seek to exercise
their rights in a selfish way without regard to others."
Is that fair? One can say that one is claiming one's rights but
you also want to be polite and obey the law as was said and all
those sorts of things, but can you claim rights in a selfish way?
Does that mean you just write a strong letter via your lawyer
to be selfish? You either claim your rights or you do not. They
are my rights and I suppose it is selfish. I cannot understand
how I can possibly claim my rights in a non-selfish way.
Mr Straw: It is a nice point you
have made but I was thinking about the kind of situation which
our constituents encounter where, for example, they will encounter
bad behaviour by juveniles, sometimes parents who assert the right
of their child to do essentially whatever the child wants to regardless
of its impact on other people. Getting across the sense in a text
that there are responsibilities as well will not overnight for
a second change that behaviour but it will actually enable people
to have a better argument with such people when they are asserting
that they have legal rights, which of course is true. You also
remind them that they have responsibilities as well. I am really
keen on getting that out specifically. That is why on specifics
we have changed the law so far as parents' responsibility in schools
in respect of their children because for sure parents have rights
to have facilities and teaching of their children, but parents
have also got very clear responsibilities. Most parents meet those
and more; some do not and expect others to do this for them.
Mr Wills: If you focus on the
word "claim", I think what the Secretary of State is
saying as well was that these rights are very precious and that
there is a tendency among some people to assert them promiscuously
and that devalues them. What is important is that when people
lay claim to these things they are precious. They have been fought
for, they are rightly entrenched in our society but they are precious
and they should be asserted and claimed with a proper sense, as
the Secretary of State is saying, of the responsibilities that
go with that inevitably.
Q438 Dr Harris: Free speech only
if it is responsible.
Mr Wills: That is not what I am
saying. You know as well as I do the famous analogy of shouting
fire in a crowded theatre.
Q439 Lord Bowness: Lord Chancellor,
I hope I have not misinterpreted what you said earlier in your
reply to Dr Harris' question but it did seem to me, and you might
want to clarify this, that you were really saying a British Bill
of Rights was more acceptable than the European Convention on
Human Rights which was seen by members of the public as a somehow
foreign concoction and therefore not something they wanted to
subscribe to. Does this mean you are suggesting a Bill of Rights
which will somehow include the Convention rights and that you
would be doing it in a way for presentational purposes to the
public? If that were the case, I would have thought that that
was not really very tactful towards our partner states either
in the European Union or in the Council of Europe. The European
Convention really is a common thread which runs through their
democracies and that they see as extraordinarily important. You
may say that it is really off the point, but if we are going to
be sitting here on this side of the Channel saying we have to
have a British Bill of Rights which does not obviously refer to
any of you people the other side of the water, that would seem
to me to be extraordinarily unfortunate.
Mr Straw: Lord Bowness, I am sorry,
I do not agree with you. It is possible to trivialise anything
but this is a far from trivial exercise. My historic points are
two: one is the European Convention is a profoundly important
legal instrument which has benefited British citizens amongst
many others, particularly in recent years, but secondly it has
been parodied as a "terrorists" or "criminals"
charter. I understand why because you cannot remove rights even
from people who have done really horrible things. You can take
away their liberty but you cannot then deny them the right to
sue the prison authorities or to sue me, as they often do because
they have these basic rights, that is what is going to happen.
I am concerned that this has then run in in some areas of the
popular imagination to an assertion that this is a European imposition.
You and I know that it is not a European imposition. We all know
the history of this which is that the UK led the way, although
it was extremely nervous—both parties were—about incorporation,
but these rights which were drafted, not least by David Maxwell-Fyfe,
a distinguished Conservative jurist, were essentially a distillation
of what he and the other British drafters thought were British
rights. I think it is far from just being a presentational matter.
I think it is really important that we get that across. You can
do that by shorthand or you can do it by longhand and going through
the explanation I have just offered or saying these are British
rights and they were developed by the United Kingdom, they were
endorsed by the British Parliament and they are British and, what
is more, we have built on the Convention to ensure that they work
better within the United Kingdom. That is no different from what
other countries do. Yes, they subscribe to the European Convention
but in their own constitutional texts they have clear statements
about what it means to be a French citizen, a German citizen,
an Italian citizen, a Spanish citizen and so on.
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