Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 420-439)


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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