Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 440-459)


21 MAY 2008

  Q440  Baroness Stern: I have a supplementary question to Mr Wills. I am still pondering this notion that there are people around claiming their rights promiscuously. I am thinking about the work that we have done on this Committee on old people in care and adults with learning difficulties and children in custody and I am wondering have you got an example you could give us of someone you have met lately or read about who claims their rights "promiscuously"? I cannot imagine who this person is.

  Mr Wills: Certainly none of the groups that you have mentioned would fall into the category that I was referring to, just so that we are absolutely clear about that and of course we are proud of this legislation that we brought in. We are proud of it, it has done a lot of good and it will continue to do good as it evolves; there is no question about that. What we are trying to say is that there is no question that it has been misunderstood and there are certain people who fuel the misunderstanding about this. Most of the rights are not unfettered. There are very few absolute rights. That is another way of articulating what I am trying to say. It is important that people understand that. That is why we want to articulate the responsibilities better than perhaps we have managed to do up until now. It is very important that any legislation in this area is owned by the British people as a whole otherwise you get the sorts of problems that we have been having—problems of misunderstanding—and the more that people are encouraged to believe that these rights are proportionate, they are accompanied for the most part by responsibilities, the greater the degree of ownership. The more the majority of the British people feel that these rights somehow privilege unfairly certain groups of people and they are encouraged to do so by people who claim, often usually without any justification whatsoever rights, that is the point. That is what I mean by promiscuous. You can claim these rights but it does not mean that the courts will uphold them. They are often based on a profound misunderstanding of what the Human Rights Act actually does, but we have to be very clear about that. I think that is the point we are trying to get across.

  Mr Straw: Baroness, the examples you quoted are all very good examples of where law-abiding British citizens have been able to make use of the Human Rights Act—elderly people who have been forced into different care arrangements in different places have been able to make use of the Human Rights Act to see out their declining years together—there are all sorts of things which this Committee is aware of but which the public are less aware of. I had to see somebody not long ago who has a terrible criminal record but who spent a large part of the conversation with me explaining about how his rights had been broken. I dealt with it patiently and I thought about this as I was listening to this and reading all sorts of documents relating to this that it would have been helpful to this conversation and to build an understanding about his exaggerated sense of his rights if I was able to say: Yes, but the text you are quoting also includes in this same paragraph text about your responsibilities and if you are pondering your current situation—he was not in prison by the way—it is because you have only read the first bit, not the second bit. That is a very practical way in which this certainly would have helped me in this difficult conversation and plenty of other people in similar situations—probation officers talking to the offenders they have to deal with, prison officers, all sorts of people who, for understandable reasons, the offenders in such a situation are very assertive of their rights. Getting across to them with these rights comes responsibilities and continuing responsibilities, for example, to their victim and society whom they have offended and that they are not the victim is very important.

  Q441  Earl of Onslow: Firstly, the American constitution has the first ten amendments—a Bill of Rights—would they not be enough for a British Bill of Rights? Those are the protection of the citizen. The second point is that on the continent you can be locked up on suspicion while they investigate for an extraordinarily long time, which would not be acceptable to English courts. I think it is reasonable to say that the common law tradition, the tradition of the King being subject to the law, a long historical and mature development of the English liberty approach is, I would suggest, superior to people who tear up their constitutions every 20 minutes, which has been known to happen on the continent so we should not be ashamed of being proud of things which do provide better liberties. I go back to what I was saying earlier which is the worry that all governments, and it is not only your government, of not understanding the rights of British subjects is to be stroppy, is to stand at market places and say "It is my right" and then get shouted down and it is wrong. This is the whole point of liberty and sometimes I do not think that the Government understands that deep gut thing of it is nothing to do with you and I can be stroppy if I want to.

  Mr Straw: I understand that. I stand in market places as I did in Crewe last Saturday.

  Q442  Earl of Onslow: Did they call you a toff?

  Mr Straw: They could have done. They called me all sorts of things. I do it regularly in the town centre in Blackburn and have done for the last 25 years. I happen to think it is other people's right to call me whatever they want to, and indeed they do. It is an important part of the rough and tumble of British political discourse. It is not for the evidence session but I wish there were more of that. What you have just said about the fact that in many areas British rights and liberties are actually stronger than Europe is making my point in a way which is that the European Convention is a platform and I want to build on that. It is not about taking people's rights away, far from it, but when I listen to you—you may disagree with me because of the name on my plate—I do not feel a profound sense of disagreement. In terms of government, which I have worked in and observed over 35 years, any government has to be checked because the tendency of government is to use the power you have got. I can only say to you that, having worked in the previous Labour administration for three years in two departments, and having observed, albeit from the opposition benches, the administration between 1979 and 1997, and then actually being in this administration right at the sharp end of people's liberties as Home Secretary, Foreign Secretary and now this job, the Human Rights Act has shifted the balance from the State to the citizen. It has changed the behaviour of all public authorities, in my view for the better, in favour of the citizen. It is terrific. Let me say that it is a damn nuisance from time to time. I literally saw before my eyes when I was working for the Department of Health and Social Security and the Department of the Environment shortcuts over people's liberties taken. Those of us who were in practice at the Bar in the early Seventies will remember that as well. Apparently it was a high point of British liberty but we all remember that suspects were quite routinely dealt with entirely inappropriately inside the cells. If your client said to you they had been fitted up, verballed or punched in the stomach and they wanted you to advance this as a defence you would say "Yes, I will do all that", but if you knew that the judge will put the boot in on the summing-up, or find you guilty if it is a stipe and you will go down for longer and everybody turned a blind eye to that. It was at the high point of British liberty. The Human Rights Act, along with some other things, has made a very big difference to people's liberties and I celebrate that.

  Q443  Earl of Onslow: The answer is I completely agree with the Human Rights Act. I want it to be better. I do not think the Human Rights Act goes far enough.

  Mr Wills: This Government does fundamentally agree with you in a whole range of ways, not just on the Human Rights Act, but the Freedom of Information Act gives huge power to the individual to be stroppy, as you say, against the state and that is right and proper and we are proud of it all.

  Q444  Lord Dubs: When we were in South Africa we met Judge Albie Sachs who said that in his view the Bill of Rights should be about the sort of society that you want to have, the values you want as a society. Is that your approach or do you think our Bill of Rights and Responsibilities should be merely declaratory of rights and responsibilities which already exist?

  Mr Straw: I have tried to set out our store on that in my introductory remarks. There is a jurist called Philip Alston who has describes Bills of Rights across the world as "a combination of law, symbolism and aspiration". One should not dismiss for a second the symbolic and aspirational role that Bills of Right and Responsibilities can play. They can take on an iconic importance which goes beyond the explicit legal protections afforded. The examples of South Africa and the United States are just two where people got a sense of their rights and, certainly in South Africa, their concomitant responsibilities. That is in their constitution which people then have as explicitly here. As I indicated in my opening remarks, the approach we are most actively considering is of the three on the spectrum between just declaratory of rights, deliberative and interpretive ones, and wholly justiciable rights is to go for the second.

  Q445  Lord Dubs: A moment or two ago we were talking about British rights. Can you give some examples of what you would consider to be specifically British rights which might be candidates for inclusion in our Bill of Rights? You have talked about the European situation.

  Mr Straw: In terms of education, health, administrative justice, equality, in these areas I am not for a second going to say that these would have no parallel anywhere else in the world—of course they would because most democracies have developed details of these—but we want to ensure that the language was suitable for our society and the aspirations of our people. For example, on healthcare in many societies people do not have a right to healthcare.

  Q446  Lord Morris of Handsworth: What about the British rights to have British jobs for British people?

  Mr Straw: That begs quite a few questions. My view and the view also taken by parliament is that if people are lawfully here and they have a permit to work then they are lawfully here and have a permit to work. Quite a lot of us around this table, either in our own person or in our forebears, were not British citizens once and this applies to me. My great-grandfather was not a British citizen but came from Germany. There are plenty of other examples around the table so you have to be rather careful. The idea of British jobs for British people, however, not in this context but in ensuring there were sufficient opportunities for the people who are settled here and that runs into wider issues about how you, for example, take people off invalidity benefit, what you do about those who are on job seekers' allowance, how you raise skills for people.

  Mr Wills: You could, for example, argue, and some people do, that British people should have the right to the skills to enable them to fill jobs in this country. That is the key thing. We are going to lose millions of unskilled jobs and part of the debate that we need to have is should people have a right to have the opportunities to fulfil those jobs—the right to get the sort of skills that everybody is going to need to fill the jobs that are going to be available in this country and everywhere else in the world. It is a different way of looking at it. It is not a restrictive formulation; in some ways it is an enabling formulation in talking about the right to skills.

  Q447  Lord Morris of Handsworth: This is taking us away from the principles of universality of rights and cocooning in the overall context of so-called "Britishness".

  Mr Straw: So far as this development of the Bill of Rights and Responsibilities is concerned, as I answered to Dr Harris, if there were to be in this, and it is not currently anticipated that there would be in this Bill, but there might be as a result of the consultation rights which were confined to British citizens, they would be the ones which are obviously confined to British citizens like the right to a passport and the right to consular protection, and even the right to vote. It may be down the track Parliament decides that the right to vote would be entirely related to being a British citizen, which is the practice of almost all the other countries, including Commonwealth countries and the Irish Republic, but for the time being we have had a more complicated definition.

  Q448  Lord Dubs: You mentioned equality a moment ago. Is there scope for including equality, administrative justice and rights for particularly vulnerable groups, such as children, all as part of this?

  Mr Straw: There is certainly scope, Lord Dubs. We have not made final decisions about this. It is an absolutely fascinating exercise just getting to where we have got to in government, intellectually as well as politically. The current buzz word is it is challenging, but it is very challenging indeed. Those are all possibilities, yes.

  Q449  Chairman: Can I come on to the question of social and economic rights. Albie Sachs said to us when we met him that a country which did not include social and economic rights in some form in its Bill of Rights is a country which has "given up on aspiration". I had the impression from your opening statement that social and economic rights are not excluded from the process. The real issue is where it fits in the continuum between declaratory and fully justiciable. Is that right?

  Mr Straw: Yes. He also said, "There is nothing wrong with aspiration. A country without aspiration is a country not really thinking about its future." I agree with that which is why I do not rule out the idea of some rights within this Bill being declaratory. I would just say to the Committee that the only worry I have there is the worry of being parodied. I get the sense that this Committee understands the importance of aspiration and the role that it can play within an otherwise legal instrument. That is the point which is made by the jurist, Philip Alston, who I quoted a moment ago. What I am also conscious about is space for there to be a serious debate about this. I do not want to end up in a position where people say it is not worth the paper it is printed on because it says this but you cannot go to court for it. That is the difficulty here. If you think about the other countries which have explicit constitutions, almost all of them right across Europe and much of the rest of the world had to argue what became their constitutions in the wake of civil war, occupation, colonisation and they went through an acute period of disruption. If you are in South Africa, or even the United States, India or France, you are going to sit down and do that in a convention in a very intense way and say what are the rights we think people should have? We will worry about how we enforce them later on but let's have a statement that we can all agree with or disagree with. Our situation is very different and I am pleased it is. The last civil war we had was in the 17th century and we are still living with the consequences. Albie's forebears were absolutely right, I was on the side of Parliament and everything went with the 1689 Bill of Rights, just so we know.

  Q450  Earl of Onslow: We were on the side of the House as well.

  Mr Straw: I know you were, sir. I had a submission the other night which I started reading and it started talking about Article 9 and I thought this has nothing to do with Article 9 of the European Convention, what is this about? It was a whole submission about a very contemporary issue which raised the question of Article 9 of the Bill of Rights. That is a slight digression, but I say the declarations can be important. People are going to say where is the beef in this Bill, so I am concerned to ensure that there is beef. In some areas, explicitly economic rights, we say look, these are the rights to have at this particular level public spending on this service you have to leave that to the Executive and Parliament.

  Q451  Chairman: It is a question of finding the right balance. One of the issues raised in the Grootboom case (a housing case in South Africa) is an important point that it is all very well having all the political rights, a right to vote and all that sort of thing, but if you do not have the basic fundamentals of life, which is what socio-economic rights provide—a roof over your head, food to eat—those rights are pretty meaningless because you are never going to be in a position to exercise them. That is why I think that those socio-economic rights become very important. If you look at the formulation of the South African constitution, they seem to have got it pretty well workable in a way that the judges do not really get involved in the decisions about resource allocation, jumping the queue and that sort of thing, but they do have that basic fundamental issue. If you contrast the housing cases in South Africa, basically the Grootboom case was saying you do not have to live in a hole in the ground but you are not entitled to a flashy house; you are entitled to basic living standards of shelter. If you look at the two health cases, one health case was somebody who tried to jump the queue and was told no, you cannot; the other is where the resources were available to do with provision of antiretrovirals to pregnant women where it had been a policy decision by the South African Government not to provide them though resources were available and they were told that they had to. There you had quite an interesting way that the constitutional court was able to find the right balance.

  Mr Straw: In any democracy there is going to be a continuing tension between the rights of individuals and minorities and the rights of the majority and you cannot have a democracy unless you can have both a means of fulfilling the majority expression but in a way which respects the rights of minorities and individuals, however unpopular; indeed, it cannot be a democracy. I have often said about parliamentary democracy that it is not so much about the rights of the majority—it is about the rights of the minority. The question is how do you resolve those inevitable tensions? What we have done osmotically in a typically British way over the years until the Human Rights Act was to say that there are these basic rights to do with habeas corpus and all sorts of other things, jury trial, subject to odd exceptions, where there is consensus between the parties but also it is built into the common law that, unless Parliament is absolutely explicit they are going to take away these rights, the judiciary will lean over backwards to assert them. We do not have a basic law and an entrenched constitution and for all sorts of quite separate reasons I am not in favour of that. Given that we do not, ultimately Parliament has to be supreme and sovereign and it does. That is also the sentiment of the majority of the senior judiciary. That is my starting point, Mr Chairman. On your housing cases, South Africa is self-evidently a poorer country and there are much greater extremes between poverty and riches. We have all sorts of rights which are both built into the legislation by the welfare state and are explicitly enforceable. There is then a question do you try and wrap those up to interpretive principles? Can I make another point on one area of jurisdiction. In India the High Court there, as many will know, out of complete frustration by the public about the unbelievable pollution which I have witnessed in Delhi, and the failure of the governments controlling the environment in Delhi to enforce environmental articles in the Indian constitution, they finally said they had had enough and banned two-stroke engines. The improvement which has followed has been dramatic in air quality in Delhi and there has been a decline in deaths. That was judicial activism but without any question with the support of the populous. I understand why it happened in the Indian system—I am not criticising the Indian courts—but in my view in a British system that issue stands to be resolved by British Parliament.

  Q452  Chairman: I want to come back to the question of environmental rights, but before we do can we stick to socio-economic rights. What you are basically saying is what you wanted to do was to pull together disparate bits from all over different pieces of legislation into one place, which may or may not be justiciable. Is it not possible to have some overarching basic principles? For example, when we looked at the position of asylum seekers—you probably would not agree with our conclusion—we came to the conclusion there was a policy of destitution towards failed asylum seekers, people living on the streets with no money, no shelter, no nothing, below the minimum standards that any civilised society should see anybody within its boundaries living in. Would you say, for example, that there ought to be a justiciable right somewhere along that continuum not to be destitute which can be refined to the very basic needs of food and shelter?

  Mr Straw: I would rather not get into a debate about how we treat asylum seekers.

  Q453  Chairman: I used that as an example.

  Mr Straw: I understand that. I am happy to but I think we are careful with asylum seekers.

  Q454  Chairman: The basic point I am putting to you is should there not be a basic fundamental right not to be destitute?

  Mr Straw: There are going to be exceptions. I was having this conversation with a woman who came to see me last Friday who is a wholly failed asylum seeker from a country which I know to my certain knowledge is perfectly safe for her to go back and she wanted to stay and was complaining that she did not have any money and I explained to her that there are limits to the British taxpayers' patience. I understood her anxiety but I promised her there was zero reason for her not to go back and that therefore she needed to go back and that is my view. I think we just lose the public entirely in these areas if we are not firm at that point. It is very different in other areas. There is a case of whether we can encapsulate basic principles of the welfare state in interpretive principles, certainly declarations for sure. This is a new area in terms of developing law, not discussion of course. When Michael and I produce our Green Paper I am certainly not going to say we have got the answer—this is for debate and discussion—and your Committee will have a very important role to play in saying why can you not do this, why can you not do that, or you have got that wrong. It really has to be a collaborative process.

  Q455  Chairman: How will this fit together with the constitution for the NHS?

  Mr Straw: How it would fit together is the constitution for the NHS is a more detailed, by definition, document than the single article. They literally have to fit together in terms of statements but there are plenty of areas where you can overlap anyway. In some of these areas we have highly developed specific rights in the economic and social field. It is about encapsulating the generic principles and celebrating them, being aspirational in Albie Sachs' phrase, and query whether you also make them interpretive and deliberative.

  Q456  Chairman: If you use the South African formulation, which seems to have worked, and I think the problem was also mentioned in South Africa if a country with such a disparate range of wealth between the very poor people in the townships and the wealthier people, if they can achieve this balance in their constitution why we, as a comparatively wealthy country, cannot and their formulation was the state should take reasonable legislative and other measures within its available resources to achieve the progressive realisation of the rights. I think that comes ultimately from a UN document. Why can we not use that formula?

  Mr Straw: We are looking at all of these. I have a feeling that they also go on at some length about responsibilities as well.

  Q457  Chairman: We asked them about what the responsibilities meant and nobody knew. Nobody could answer the question. We asked judges, politicians, NGO's and nobody knew what "responsibilities" meant in the South African constitution.

  Mr Straw: There are various Australian instruments—the Australian Capital Territories Human Rights Act, the State of Victoria's Charter of Rights and Responsibilities, the preamble to the ICCPR: `realising that individuals having duties to other individuals and to the community into which he or she belongs is under the responsibility of the individual to strive for promotion and observance of the rights recognised in the present covenant' [italicised / citation] and Article 20 of the UDHR and so on. There are plenty of examples one can come up with.

  Q458  Chairman: There are examples of responsibilities but that is not what I am asking you about. I am asking you about the specific question of the degree of justiciability on that scale which maybe they want to achieve.

  Mr Straw: The discrete issue about the level of justiciability has to be made country by country. We have moved over the last 40 years to a much higher level of justiciability for all sorts of what was seen previously as administrative action. When I studied law at university in the Sixties and practised at the Bar in the early Seventies we did some work on public law and judicial review. Famous authorities like Wednesbury were still there but judicial activism was developing. It has developed hugely since then. It was fast-moving before the Human Rights Act and will move. At the same time my own sense is that because we do not have the huge disparities of wealth, nor the huge disparities historically in people's rights that they do in South Africa, and we have very long-functioning institutions, that maintaining the sovereignty of Parliament at the apex of this system is absolutely fundamental. The senior judiciary recognise that. Lord Bingham, in a very important speech he gave, quoted a senior Australian judge as saying that if judicial activism goes too far you undermine the rule of law and I believe that. The only way you can maintain public confidence in what government is doing is by giving the public the regular choice to change the Government and to change everything, if they want to, with that.

  Q459  Chairman: I would not disagree with that. That was the view in the Human Rights Act formulation with the declaration of incompatibility and so forth and I think it is a very useful model that perhaps we will talk about here. The last point from me is on environmental rights—the third generation rights as they are sometimes called. Do I take it from what you were saying that you are not supportive of rights to clean air, clean water, that sort of thing, as part of this constitution?

  Mr Straw: Of course I am supportive of the right to clean air and not to be poisoned.

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