Can the Bill of Rights do better than the Human Rights Act?

30 November 2009

Middle Temple

 

INTRODUCTION

It is a great pleasure to have been invited today to deliver a paper explaining and justifying Conservative plans to replace the HRA with a Bill of Rights and I am particularly grateful for the opportunity to discuss this issue with fellow lawyers in my own Inn of Court.

 One of the things I soon discovered after being elected to Parliament in 1997, is how different are the skills required to be a politician as opposed to a lawyer. As a lawyer, I might receive praise for concise precision in developing my arguments. As a politician one’s brownie points are earned all too often for skills in opacity and obfuscation. Politicians love the broad brush and pride themselves on their ability to interpret the public mood and then ride and direct it. Emotion and instinct are key parts of the political process. In contrast good lawyers need to try and cut through the rhetoric to achieve a dispassionate analysis, but they may miss the point that analysis of itself does not win political arguments.

It is with this in mind that I shall try tonight to combine these two approaches. This does not seek to be a learned discourse on law. But I trust that sufficient of the analytical rigour inculcated into me as pupil by my fellow bencher Nigel Wilkinson QC when I was his pupil has remained thirty years later following, my transition into a politician in order to inform the approach my Party takes on this issue.

THE ECHR

My starting point is that the substance of the ECHR and our country’s adherence to it as an international obligation, are a key benchmark of our shared values as a nation.

As is insufficiently known away from the world of lawyers, its origins mirror British constitutional traditions of freedom and the rule of law. It is suffused with principles that can be traced back to those ancient statutes: Magna Carta, Habeas Corpus and the Bill of Rights of 1689, reflecting Common Law traditions of liberty and freedom from state oppression. It was indeed promoted by a Conservative political lawyer Sir David Maxwell Fyfe, later Lord Chancellor.

That said, the actual drafting obviously reflects a compromise between competing common law and civil law concepts.

In negotiating the Convention, and I should add for those interested in the detail that the negotiating history is available online, the British looked to establish a detailed list of clearly-defined rights, whereas the French and certain other civil law countries preferred a general list of principles that would be left to a supranational court to flesh out and clarify by its decisions.

The result reflects these origins.

I point this out, because there has recently been something of a tendency recently to suggest that the ECHR was a near perfect Conservative construction, willed by Churchill, and crafted by British barristers without any reference to the wider diplomatic process involved in drafting any treaty.

In truth, there was considerable unease in Britain about the ECHR from its outset. Indeed, some of the utterances from the great and the good of the day might not be entirely out of place in a current tabloid newspaper or on some blog threads.

Sir Eric Beckett, the FCO Legal Adviser, for one, warned that a supranational European court would be a ‘small paradise’ for claims by lawyers and by what were not then known as NGOs.

Contemporary FCO advice to Ministers warned against signing the ‘blank cheque’ represented by acceptance of the jurisdiction of a European court, predicting the subversion of the Convention in support of spurious claims:

To allow Governments to become the object of such potentially vague charges by individuals is to invite Communists, crooks and cranks of every type to bring actions.’

The gravest doubts emanated from Labour Lord Chancellor, Lord Jowitt, who briefed the Cabinet on the draft Convention in October 1950 in particularly disparaging terms:

The real vice of the document, therefore consists in its lack of precision … It completely passes the wit of man to guess what results would be arrived at by a tribunal composed of elected persons who need not even be lawyers, drawn from various European states possessing completely different systems of law, and whose deliberations take place behind closed doors … the whole document reeks of compromise.

But it also reeked of common sense and principles of common humanity which was why it was agreed.

Let us not lose sight of its original aim.

The ECHR was designed to set a standard for the behaviour of states towards their citizens which would prevent the re-emergence of totalitarianism and tyranny in Western Europe. In this it has been markedly successful, as has been shown by the improvements in the standard of conduct of many states and including in particular the fledgling democracies that emerged after the fall of the Iron Curtain. Its existence maintains pressure on countries that might be tempted to abrogate rights and freedoms and ensures that a country such as Belarus that has failed to adhere to the Convention is excluded from participation in the Council of Europe.

This is not to say that everything connected to the direct application and indirect impact of the ECHR is perfect. A reading of the 14 rights protected under the Convention and the additional protocols to which the UK has acceded reveals nothing with which any right thinking person could possibly disagree. But the rights as drafted were in very general terms and set out very general rights such as freedom of speech, freedom from arbitrary arrest and the prohibition of torture. For the first 13 years of its existence it was simply an international treaty with no opportunity for the individual citizen of any country to enforce its provisions, until in 1964 a mechanism of direct petition to the European Court of Human Rights was conceded. Since then the Court has had to wrestle with a mounting volume of direct petitions and currently has an almost unimaginable backlog of over 97,000 cases.

In the process it has been transformed from an international tribunal adjudicating on a few major cases of international significance into an appeal court ruling on the minutiae of administrative decision making ranging from what is allowable in smacking a child, to what degree of ill health is needed before deportation becomes a cruel and inhuman act, to whether the Lord Advocate in Scotland should be allowed to appoint part time judges because of the separation of powers and this last notwithstanding that no one had ever seriously suggested that it was leading to any kind of injustice whatever.

Even more extraordinarily, in a current Belgian case the Court in the shape of its lesser Chamber has held that trial by jury may offend Article 6 on fair trials because juries do not give reasons for their decisions. This case has just been considered by the Grand Chamber with the UK and Ireland intervening. It is to be hoped that good sense may prevail.

I do not think it is in any way improper to question whether the Court is doing itself any credit in this increasing micro management of human rights in individual states subscribing to the Convention. What might have been reasonable when those states had no national constitutional mechanism to interpret and apply the ECHR themselves becomes unnecessarily intrusive and disruptive when they do. As Lord Hoffman stated in his lecture to the Judicial studies Board in March the Court:

“…has been unable to resist the temptation to aggrandize its jurisdiction and to impose uniform rules on member states”

He also highlighted that the jurisprudence of the Court is uneven in quality, sometimes poorly reasoned and uncertain in scope, the result of its expansion, and increasing lack of jurisprudential homogeneity and collegiality on the back of the greater number of states adhering to the ECHR.

These are all issues that need to be addressed and it is to be hoped that if the Russians finally ratify the 14th Protocol, there may be a greater opportunity for dialogue between national courts and the Strasbourg Court by virtue of Article 16 of the Protocol allowing the Committee of Ministers to refer problems of the interpretation of judgments back to the Court. There are also strong arguments for the Convention itself and its operation to be reviewed. But with 47 member states now adherent, achieving any consensus will be slow. This makes it all the more important that the original intention of the Convention to give adequate respect to different national traditions in interpreting and applying Convention rights should operate properly.

However I want to make myself quite plain. Although some have argued, and increasingly vociferously, that the solution for the UK in view of these problems is to withdraw from the Convention altogether on the grounds that it is an undesirable and unnecessary fetter of national sovereignty in decision making, I entirely disagree, as does the Conservative Party.

 Such a withdrawal would send a very damaging signal about how the UK viewed the place and promotion of human rights and liberties and would be an encouragement to every tin pot dictator such as Robert Mugabe, who violates them. Nor, if a UK government intends to behave in an ethical manner,  would withdrawal solve many of the problems now blamed on the ECHR itself. The USA is not adherent to and therefore not bound by the ECHR. Nevertheless that does not make it any easier for the USA to deport Uighur terrorist suspects from Guantanamo to China because its own national standards – not to mention the International Covenant on Civil and Political Rights – which precludes deportation where there is evidence that the subjects would suffer torture in their home country.  

THE HRA

Different considerations do seem to me to apply however to the HRA.

As is well known, I was in a small minority in my own Party in being broadly comfortable with the idea of incorporation of the ECHR into our own statute law. The advantages are easily rehearsed. It avoided a continuous stream of cases going to Strasbourg, a stream that was clearly going to accelerate regardless of incorporation. It afforded an opportunity for our national courts to develop their own jurisprudence in relation to the ECHR. In an environment where the intrusive power of the state had increased and was and is still increasing, it seemed to me wise to follow in the tradition of our forefathers and provide extra protection for rights and liberties as they did, whether in Magna Carta or the Bill of Rights of 1689, to reinforce the common law.

Others worried that incorporation would bring the judiciary into the political arena by requiring them to make decisions that would usurp the role of the Executive which is answerable to Parliament, thus undermining our parliamentary democracy. I believed that those concerns were entirely legitimate, but it seemed to me that Lord Irvine’s respect for Parliamentary sovereignty in Clause 2 of the HRA, through his mechanism for declarations of incompatibility, went at least some way to meeting that anxiety.

Ten years after the Bill became law it is possible to make a clearer judgment on the operation of the HRA with the benefit of experience.

Its supporters can rightly point to the way it has influenced public authorities in the provision of services, to show much greater respect for human dignity. Few could disagree with the outcomes of cases such R v East Sussex County Council[1] which overturned a ban on manual lifting of severely disabled patients which had been imposed solely with regard to rules for the health and safety of carers and without sufficient thought as to its impact on the disabled people they were serving. It was a question of priorities which was got right by the court. Another positive example is the way the courts have given a person detained on mental health grounds a say in decisions taken on their behalf in M v Sec of State for Health[2].  

But its shortcomings are also apparent. It is noteworthy that it has done little to check the growth of creeping authoritarianism in the eight years of its operation. On the introduction of ID cards, the arbitrary use of stop and search powers on the pretext of fighting terror, the growth of RIPA authorised spying by local councils on dog walkers and attempts at curtailing trial by jury and most recently the issue of secret inquests it has been possible for ministers to give a certificate of compatibility with Convention rights on the face of the legislation. It has taken a decision of the European Court of Human Rights and not of our own courts to force the UK Government to change its position on the blanket retention of DNA to create the largest DNA database in the world-although it appears that the executive are still trying to press on with a modified scheme.

It can of course be argued that the courts have not yet had the opportunity to consider some of these matters and we have the Belmarsh judgment on preventative detention and subsequent cases on Control Orders as illustrations of the impact of the ECHR in this area. But the trend towards authoritarian solutions to security and crime problems has continued. Indeed the rhetoric of successive Home Secretaries such as David Blunkett and John Reid has been of open criticism of these judicial decisions thus undermining their own legislation which they supported at the time it was enacted.      

The HRA has also engendered public hostility through the perception that it is contributing to “rights inflation” a subject on which some sections of the tabloid press have had a great deal to say.

I am well aware that some of what is said and written is of course myth. Stories that the HRA has allowed prisoners to demand the right to access pornography continue to appear notwithstanding the fact that that demand, albeit formally claimed, was rejected by a court at first instance, a decision not appealed.

But we cannot ignore the fact that the HRA has also created greater legal uncertainty, particularly for those on the frontline of public service delivery. The refusal of a police force to publish the names of violent fugitive offenders and the ludicrous argument of a Director of Education that the filming of a school nativity play was prohibited by the HRA are both examples of a continuing genre. They are making it much harder for there to be public understanding that there are going properly to be cases where politically unpalatable decisions must flow from genuine ethical dilemmas, such as the inability to deport an undesirable foreigner posing a security risk to a home state where he would be tortured or killed.

The result is to trivialise the purpose of the ECHR and undermine its acceptance. This is where my experience as a politician joins my experience as a lawyer. I do worry as a politician that there is complacency amongst lawyers, academics and campaigners who support human rights and the HRA as to the extent of public resentment of the operation and influence of the legislation in practise. In a recent Ipsos Mori poll taken in 2008, 80% reportedly considered that some people take unfair advantage of human rights. More worryingly 42% considered that the only people who benefit from human rights are those that don’t deserve them. Only 40% disagreed with this sweeping criticism.

Last but not least, in looking at the way the HRA is operating, we ought to consider whether the decision making of the courts is taking place in the manner in which Parliament originally intended in 1998.

It was quite clear in the course of the Parliamentary debate on incorporation that it was desired only that the courts should “take into account” Strasbourg jurisprudence. This makes particular sense because the nature of the Strasbourg  jurisprudence is to resolve individual cases of difficulty while paying due regard to the margin of appreciation left open to national courts to interpret the Convention in their own way.

In practise however this has not happened. Our courts have shown a marked deference to Strasbourg. In Ullah-v-The Home Secretary[3] Lord Bingham laid down the principle that the duty of our courts “is to keep pace with Strasbourg jurisprudence a it evolves over time: no more but certainly no less.” As Lady Justice Arden has recently highlighted in her Thomas More Lecture at Lincoln’s Inn on 10 November 2009, such interpretative deference makes it difficult for national courts to then have any dialogue with Strasbourg, and she called for the development of a “right of rebuttal” for superior national courts: a right to decline to apply Strasbourg jurisprudence so long as it fails to provide principles on which the courts can rely for its general application. At paragraph 26 she encapsulates our particular national problem and it is worth quoting:

A different problem for national courts  arises when the Strasbourg Court has sought too develop its jurisprudence in a manner which demonstrates a misunderstanding of the domestic law position……..It follows that the higher courts should not be expected as a matter of domestic law to implement the decisions of the Strasbourg court in every situation. There is however a small problem here generated by section 2 of the Human Rights Act 1998. This has been interpreted at the highest level as requiring our domestic courts to follow Strasbourg jurisprudence.”

But at the same time our courts have occasionally been willing to go much further than the Strasbourg Court has ever gone. We are in the process of developing a home grown jurisprudence on restrictions on deportation based on the right to family life in Article 8 of the Convention. Last year, in EM (Lebanon) –v- The Home Secretary[4], the House of Lords applied this to a Muslim woman who argued that she and her daughter could not be returned to Lebanon after being present illegally in the UK as her divorce from her husband would be resolved under Sharia law principles that would lead to the daughter being placed with the father. As Sharia law is held in considerable dislike in this country the decision is likely to elicit sympathy. Nevertheless it remains a remarkable interpretation of Article 8, far removed from its application anywhere else and surely far removed from the intention of those who drafted it. As with developments to privacy law, as exemplified by the Max Moseley case, where a matter falls within the margin of appreciation, our courts are on these examples anyway tending not to apply a self denying ordinance so as to leave such issues of principle to be determined by Parliament.   

HOW A BILL OF RIGHTS MIGHT WORK

It is because of all these issues that I believe that a Bill of Rights replacing the HRA would be helpful. It was with this in mind that David Cameron set up a Commission of lawyers to advise a to how this could best be achieved and what was possible within the parameters of continuing adherence to the ECHR, with which our proposals must be compatible.

The Commission’s work is not yet complete. It is in any case not a project that can be completed in Opposition. We would wish to consult widely on our ideas if elected to Government and I would expect to do this by means of a Green Paper. I don’t wish to see the matter rushed because it is my view that it was the speed of enactment of the HRA which lead to insufficient debate and resulted in the deficit of popular and political understanding of its implications which has caused many of the present problems of its lack of acceptance.

But I am in a position to outline some of our ideas.   

Firstly a Bill of Rights would offer us an opportunity to protect rights and liberties which are not covered by the ECHR at all and which form part of our core values. These could include the right to trial by jury for indictable offences and limits on the power of the state to impose administrative sanctions without due process of law, thus curbing a worrying trend towards fixed penalty notices and other extra judicial penalties for criminal offences of dishonesty and violence.

There are also good reasons to extend the principles of equality under the law and freedom from discrimination to encompass gender and sexual orientation which are not covered specifically by the ECHR.

We may wish to bring together key constitutional principles from elsewhere in our existing law. There might be merit in identifying and enshrining in one statute those clauses of the Bill of Rights of 1689 and the Parliament Acts which provide the framework of our Parliamentary democracy.

We could also take the opportunity to look at areas such as the balance between privacy law and freedom of expression to amplify and better define the Convention rights and seek to provide a principled means of resolving the tensions between the relevant rights and obligations, giving the public and Parliament the opportunity to debate how that balance should best be struck within our national tradition, that has historically treated the right to freedom of expression as of paramount importance. At present the vacuum created by the vague wording of the ECHR is inevitably being filled by judge made law, to the horror of the media and the pleasure of some of their victims. It is surely wrong that Parliament should duck considering this and similar issues.

Where rights are qualified and not absolute and a balance has to be struck between competing rights, as must happen in relation to many of the Articles of the ECHR we should also consider if we wish through interpretation clauses to give a more detailed guide consonant with our own legal and political traditions than does the ECHR text itself as to the weight to be given to each of them.

One issue that has to be considered is whether or not responsibilities can be included in any Bill as well as rights. It is clear however that, however tempting an idea as it might appear, aspirational responsibilities, such as that of being a good neighbour, cannot be enforced through statute. The government has itself conceded this when it became clear that its own Bill of Rights and Duties would be no more than a largely symbolic document which would contain little that was justiciable at all.

While the scope for a preamble touching on the duties of citizenship may be helpful, I think that symbolic legislation should be avoided. But that still will leaves scope for the interpretation clauses to provide for the better balancing of rights where the assertion of a right undermines the rights of others 

In considering how compatibility with the ECHR is best to be achieved there has been discussion of whether the Convention rights should be included verbatim or reworded.

That debate need not be concluded at present. My own inclination would be to use the Convention rights as currently drafted, as a starting point. To do otherwise appears to me to risk pointless confusion. The inclusion of the ECHR rights but spelt out in greater detail and clarified and supplemented where necessary in the new Bill of Rights would further ensure that the decisions of UK courts could continue to influence the development of Strasbourg jurisprudence which has clearly been of value over the past eight years.

In contrast I see the key areas of change as being a reconsideration and recalibration of the relationships of our national courts and Parliament and of our national courts and the Strasbourg Court in particular, respecting the extent to which our courts are bound by decisions of the Strasbourg court.

So far as the relationship of the courts with Parliament is concerned, I believe that it is important that Parliament should have a proper dialogue with the judiciary on issues of interpretation. The system in clause 2 of the HRA, by which a fast track procedure exists to amend offending legislation after the making of a declaration of incompatibility is not satisfactory as it minimises the role of Parliament. One option would be to put in place a requirement for primary legislation to be passed, coupled with the possibility of suspending the operation of the relevant clause for a maximum period of 6 months.

I would wish to see the current system for the making of declarations of incompatibility to continue as before. It would provide a sensible way for the courts to rule on the Bill of Rights without infringing the sovereignty of Parliament.

We should also, however, reconsider the duty in Clause 2 to “take into account” Strasbourg jurisprudence. As I have already said, it has been interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended. We would want to reword it to emphasise the leeway of our national courts to have regard to our own national jurisprudence and traditions and to other common law precedents while still acknowledging the relevance of Strasbourg Court decisions.

THE UNITED KINGDOM DIMENSION

I am very much aware that in the proposals that I am putting forward, any change to the HRA has consequences for devolved administrations in the UK. All devolved governments and legislatures are subject to and have to act in compliance with the Convention Rights. I want to make clear that a Conservative UK government wishes to respect the devolution settlements and so does not want to impose change against the will of devolved administrations in devolved matters. We want therefore to proceed by agreement with the principle very much in mind, particularly for Scotland, that its own national tradition of rights and liberties is different from that of England and Wales.

In Northern Ireland, a Bill of Rights is under consideration, although the report of its Commission has proved controversial in its advocacy of socio-economic rights which are definitely not under consideration for a Conservative UK Bill of Rights. I can see no reason however why our UK Bill of Rights should not make special provision for Northern Ireland to reflect its need to tackle the particular circumstances there.

CONCLUSION

In concluding I want to emphasise that a new Bill of Rights cannot be guaranteed to have none of the failings of the HRA. I hope that in this talk I have made clear that the HRA and the ECHR are documents on which we wish to build. The intention is to develop a home grown document that can engage a wide public debate of the principles affecting both rights and liberties and ultimately, promote a sense of popular ownership of the concept, principles and content of human rights which we lack at present.

If we can achieve this, then I believe that the informed appreciation of the value for all people in our country of a strong but flexible framework of human rights will be much greater than at present. This is a political and legislative goal which is well worth the effort to achieve. Laws alone should never be enough, not even for lawyers.    

 

Dominic Grieve QC MP

[1] R v East Sussex County Council, the Disability Rights Commission (interested party), ex

parte A, B (by their Litigation friend the Official Solicitor) X, Y [2003] EWHC 167

(Admin).

[2] R (on the application of M) v Secretary of State for Health (Maurice Kay J) [2003] EWHC 1094

[3] R (Ex parte Ullah) v Special Adjudicator; Do v Secretary of State for the Home. Department [2004] UKHL 26

[4] EM (Lebanon) (FC) v Secretary of State for the Home Department (Respondent). [2008] UKHL 64