Examination of Witness (Questions 36-51)
Q36 Chair: Anthony,
I am so sorry not to have welcomed you earlier. I was quite late
myself, breathlessly running to get here, but welcome to the Select
Committee. This should not be an unpleasant experience. Certainly
for someone from your profession, I am sure you will be more than
a match for us, but nonetheless we are here to find information
and to get a sense of the work of the committee, and above all
perhaps to get a sense of the members of the Commission and where
they are headed. I will start with a question that I asked Sir
Leigh in terms of where would you place yourself in this debate?
I am sure you will listen to the colleagues in the debates and
move as you go, but where are you now on this whole question of
bills of rights?
I begin with the observationand let me make it and get
it out of the way so I don't have to repeat it in answer to every
questionthat although I have some views I approach this
task with a totally open mind. Everything that is my view now
may change, so whatever I say now about my views is purely a provisional
Having got that out of the way can I also say
something about the perspective that I bring, because it may be
useful for me to say a word as to who I am, as I am probably one
of the publicly least known members of this Commission; I have
been a practising barrister all my life. I have been a member
of the Conservative Party all my life. Insofar as it has any
materiality I have been a pro-European Conservative all my life,
but I have never had any active involvement in politics in any
career or occupational sense. My perspective is that of a barrister
working in the law.
I have a civil practice, so I have no direct
experience of criminal cases or immigration cases, which are two
of the most newsworthy areas where the Human Rights Act has had
an impact. I have, however, been in quite a lot of civil cases
of quite varied kinds where the Human Rights Act and the Convention
have been what we have been arguing about in court, and most of
my views are based on that experience. I think that in terms of
decisions in actual cases, the Human Rights Act has, in the main,
been a thoroughly good thing and in most of the cases that I have
been in where it has played a role, that role has been beneficial.
There is one significant area where I do not think that is the
case, and that is privacy cases.
I think, however, that it is a great pity that
the Human Rights Act is necessarily perceived to have based our
rights on a charter of rights that comes from elsewhere. It may
historically be the case that in the 1950s it was drafted by an
Englishman, Maxwell-Fyfe, but that is an academic piece of information.
The reality, particularly as it is interpreted as a living instrument
by the courts, is that it is widely perceived as being from elsewhere.
It is not perceived as being part of Britain's heritage. I have
certainly come to the view in the last few years that it would
be very attractive if we could have some sort of Bill of Rightsthat
might not be the title but it is the label that is generally used
and is convenient to stick withwhich much more directly
reflects our own heritage. So my starting point is that I think
that rights legislation is beneficial, because it is a prompt
to judges to look at underlying principles when they are working
out the meaning of legislation in deciding cases, but I would
much prefer it if that set of underlying principles was seen to
be one that we more directly owned.
As to the European dimension, I think this is
very difficult, and perhaps I should wait for some further questions
to go further with it. The European Convention on Human Rights
is a noble venture with wonderful ideals, but if you look at where
we are now, the court, as you, Chairman, have already indicated,
makes decisions that something or other is a human right that
would not by the average Briton be regarded as a human right.
In more common parlance, if we talk about human rights issues
in the world, we are thinking of outrages in Zimbabwe. To be toldto
take the current example that is uppermost in one's mindthat
this country's penal policy, supported overwhelmingly by its legislators,
is incompatible with human rights just strikes most Britons as
nonsense. That is a problem, and if pressed -- I will not take
too long in answering the first question, -- I will be happy to
take that further.
Q37 Mr Chope:
Anthony and I know each other from long ago, and we have both
been members of the Conservative Party. Some people think that
the purpose of this Commission is basically to give the two Coalition
parties options at the end of 2012 whereby each of them will be
able to come to a different conclusion as to what they want to
put in their manifestos for the next election, based on the expert
advice from their own party members on this Commission. Do you
see that as being one possible objective? If the Conservative
members of the Commission reach one conclusion and the Liberal
Democrat members a different conclusion, none of the conclusions
could be carried forward in legislation in this Parliament, but
they could perhaps form on the basis of manifesto commitments
by those respective parties subsequently. Do you see that as part
of your mission?
No, I don't see it as part of our mission. I can't speak as to
whether it was a part of motivation behind the Commission, but
I certainly don't see it as part of the mission. I don't think
that is the way it is going to work. I think two things: firstly,
I think the differences between different political parties are
nothing like as great as is commonly supposed and, secondly, I
think that there is a real change of mood. Let me take those two
points in turn. Although the stock phrases used by different parties
are very differentcertainly the Labour Party feels pride
in the Human Rights Act and the Conservative Party has tended
only to say bad things about itall three main political
parties over the last few years have, in one way or another, talked
about some sort of new Bill of Rights in this country. The domestic
part of our task, in talking about a UK Bill of Rights, is entering
territory where there is absolutely no reason why quite a degree
of consensus should not emerge.
The change of mood is in respect of the European
dimension, and perhaps it is now a convenient moment to move on
to this. We have recently heard people across the political spectrum
saying something has to be done about the margin of appreciation.
Our own member, Baroness Kennedy, said that in the House of Lords
a couple of weeks ago. Lord Falconer said that in the House of
Lords a few weeks ago. Several Members of Parliament said that
in the prisoners voting debate in the House of Commons a few weeks
ago. I don't want to say that it is a 100% viewpoint in the United
Kingdom, but I think one could say that there is an emerging consensus
in the United Kingdom that the European Court must allow a greater
margin of appreciation than it has up to now if it is to continue
to have the respect and legitimacy that it needs to do its work.
If one reads the full text of the Interlaken
Declaration, and then the Izmir Declaration from the next meeting
that carried forward that discussion, buried deep in four or five
pages of fairly platitudinous utterances one finds in each of
them a statement of wish and aspiration for greater subsidiarity.
So, although I suspect that many other member Governments in the
Council of Europe countries are not viewing things quite in the
way that we are, there is at least a glimmer there in the official
declarations of recognition of this as an issue. That is why I
say I think there is a new mood.
Q38 Mr Chope:
I agree with what you said, but is there not a further problem?
If the opposite of subsidiarity is harmonisation, the prospect
of the European Union joining the Convention is going to bring
the EU, which is interested in harmonisation and purports to speak
on behalf of the 27 Members of the Council of Europe, into conflict
in the European Court of Justice and the European Court of Human
Rights? Do you see that as a problem ahead? Isn't the only way
of avoiding that to repatriate to the United Kingdom Parliament
control over our own rights legislation, so it would be interpreted
by the courts, but then, if we disagreed with the court's interpretation,
should Parliament so decide, they could reverse those judgments,
as we do on a regular basis when the courts decide something with
which Parliament disagrees? Isn't there a strong argument for
saying that talk about subsidiarity is unrealistic, particularly
because of the EU involvement in this, and that the best thing
to do is to repatriate all this?
I think with the EU joining on one side it is, I dare say, going
to involve all sorts of difficulties that have not properly been
thought through with potential conflict between the Strasbourg
Court and the Luxembourg Court, but it can be argued that it is
something to be welcomed because it would bring a layer of supervision
above the EU and a layer of supervision enabling us to look at
whether the EU is unintentionally infringing rights. But push
that over to one side, because I think the main question that
you ask brings one to the heart of what can be called the democratic
deficit in the Convention arrangements.
Everywhere in the free world where there is a supreme
court that enforces rightsand most democratic countries
have such an arrangement, although we do notwhatever the
supreme court may decide can always be trumped by the democratic
institutions. It may involve enhanced majorities. It may involve
not just an enhanced majority in the US Congress but two thirds
of states voting for the same thing. It can be done and it sometimes
is done. In the Council of Europe arrangements, there is nothing
like that and in the short term this gives the Strasbourg Court
enormous power. In the longer term, it may drain it of legitimacy.
In my mind, the question of democratic deficit is one that is
pulled on to the agenda once the margin of appreciation has reached
the agenda, which it now has. As to what is to be done, one could
bounce ideas around, but to the next question.
Q39 Mr Hamilton:
Mr Speaight, I was intrigued by something you said in your opening
remarks about the Human Rights Act being somehow from outside
alien to this country, or at least having been founded or written
outside the United Kingdom and not being part of our heritage.
I wonder whether you could expand a little bit on what you believe
is our heritage in terms of human rights or the rights of the
citizens of this country. I just want to understand a bit more
about where you are coming from.
I think I said it was perceived as being from outside this
country, and if I didn't say that I would like to correct my utterance
now, because in fact it was written in large part by David Maxwell-Fyfe
who was a British parliamentarian and lawyer.
Start with the Magna Carta. In saying that,
I am conscious that the Magna Carta has no part in Scotland's
heritage, and one always has to be aware that the heritage of
the United Kingdom is diverse. But the Magna Carta is extremely
important to the heritage of England and Wales, both because of
its place in our history and because of the way in which its wording
has been echoed in similar charters all over the world.
We had the Bill of Rights at the end of the
17th century. The Latin tag "habeas corpus" has a value.
I say this as a non-criminal practitioner, not speaking in areas
in which I have direct involvement, but if the debates about terrorist
control, periods of detention and so on, instead of talking about
rights under article so-and-so of the Convention, still used the
tag "habeas corpus"it is nothing to do with the
Human Rights Act that that went, as it was ditched a decade or
two previouslythere is a resonance in that expression that
echoes down the years so that people feel, "That is rather
important and if there is any thought that that is being infringed
I am rather bothered about it".
Q40 Mr Hamilton:
Sorry to interrupt you, forgive my ignorance, but how far does
the Human Rights Act, largely written, as you say, by a British
parliamentarian, contradict those traditions and that heritage
of this country?
Not at all, and one reason why the project that we are embarked
on seems to be one that has every possibility of success is because
the wording of the European Convention is, in fact, a statement
of our domestic heritage. There are extra things that I would
like to see in that, but there is nothing in the rights of the
European Convention that clashes in any way with the British heritage.
Q41 Mr Hamilton:
Can I just ask you a little bit more about the work that you will
be doing on the Bill of Rights? You can't predict what you are
going to publish next year, but do you see a United Kingdom Bill
of Rights as perhaps a precursor to, or in any way similar to,
the possibility of a written constitution? You mentioned that
judges needed some underlying principles behind the legislation
that has been passed in this place; would the Bill of Rights do
I suppose those who are keen on there being a single codified
document containing the British constitution would see a Bill
of Rights, or whatever it is ultimately called, as part of that
but there is no reason why the existence of a UK charter of rights
need lead to codification of other parts of the British constitution.
Q42 Mr Hamilton:
Would it be desirable, or is that outside your brief?
I am a sceptic about this. Some good friends of mine are great
enthusiasts for a written constitution. My answer to them is the
British Constitution is written down; it is just written
down in lots of different places.
Mr Hamilton: Thank you.
A very good answer.
Q43 Mr Turner:
Could I ask you about subsidiarity? Is it not the case that subsidiarity
comes from up there and delivers something down here whereas what
we believe in, or quite a lot of us believe anyway, is that rights
should go up rather than down?
That sounds to me like an essay question. I think I would unhesitatingly
want to endorse the proposition that rights are something that
people feel and that any document that sets out rights reflects
a sort of unspoken consensus in a society as to the inherent value
of each human individual in it. Human societies being what they
are there need to be some sort of controls, which can only come
from above. All law is for the benefit of the weak, because the
more powerful people are the more law is a nuisance to them, so
the enforcement of rights will necessarily come from some institutions
at the top.
Q44 Mr Turner:
What I am distinguishing, I think, are between European and English
That leads one to the extraordinarily difficult issue. At the
risk of putting my head in a noose, I see a looming crisis in
which there may well be a classic collision between an irresistible
force and an immovable object over the prisoners voting issue.
At the beginning of this year, as a detached observer, I expected
that what would happen would be that the United Kingdom would
enact some change to its penal policy, maybe saying prisoners
who are in prison for short sentences could vote or maybeand
this seemed to me the more attractive optionenacting so
that the mere fact of imprisonment would not deprive a person
of the right to vote but that at the same time as passing a sentence
of imprisonment a judge would be required to decide one way or
the other whether there was also a restriction on voting, in rather
the same way as if it is a driving offence that calls one to consider
a driving ban or, if it is a certain sort of offence, prohibition
from being a company director. However, that is not what has happened
so far, and instead we had the House of Commons debate and vote.
I then thought the next thing that would happen would
be that the European Court would realise that it had a looming
political problem and that the UK Government's very helpful request
for the matter to go to the Grand Chamber would lead to it going
there for consideration; absolutely the contrary. Within only
a few weeks of the request for it to go to the Grand Chamber,
the request was not only turned down but the court announced something,
which I am told nobody can recall it ever saying before, and that
is that it was announcing a time limit of a relatively short period
of six months for the United Kingdom to produce legislative proposals.
So the court was talking very tough, although
in the small print, it did two things, which may not provoke a
crisis. One is it decided there will be no compensation order
for prisoners at the moment and, secondly, it dismissed all the
pending cases by prisoners on the grounds that the court had already
made a decision. However, what will happen at the end of the six
months, which will be on 11 October? There is a looming crisis.
Q45 Mr Turner:
I am not quite sure where that gets us in terms of a decision
but never mind, let's move on. Can I just quote you something?
You said in Human Rights Act - Legal Pathways, on page
5, "Sections 1(2) and 15 of the Human Rights Act create,
on one reading, the impression that a British Minister can make
fresh reservations." You then went on to say, "That
is incorrect. It is now too late." I don't quite see what
justification you have to write, "That is incorrect",
and I would like to know a bit more about it.
Gosh, it is several years since I wrote that, and I have completely
forgotten that part of the document, I am afraid. I don't, I must
say, see how the UK can now make reservations from the Convention.
It could withdraw by giving notice. It can make derogations by
the national emergency clause. What it can do, however, and what
could be done in a UK Bill of Rights is some tweaking of rights.
In the Human Rights Act, there was one attempt by Parliament to
tweak by section 12, which in effect said where there is a conflict
between privacy and free speech under articles 8 and 10, free
speech is very, very important. That really was the message of
section 12. It was saying if the seesaw is in any way like that,
let the free speech end win.
In my view the English judges have simply ignored
that, so tweaking may not work very well. But that is a precedent
showing that tweaking can be done, and it certainly is a possibility
in a UK Bill of Rights that extra text can be added to a repeat
of the wording of the Convention, which would give some indications
as to how in new situations these rights were to be implemented.
Q46 Tristram Hunt:
Just to press you on this earlier document that was producedI
didn't realise it was so long agoin your favoured outcome,
is it right to say as on page 25, "The UK does not withdraw
from the European Convention on Human Rights Treaty but the Westminster
Parliament repeals the Human Rights Act in its present form and
enacts in its place a second Bill of Rights"?
That is certainly a possibility, yes.
Q47 Tristram Hunt:
Would that be your favoured option?
Subject to all the qualifications about any preliminary view,
my favoured option would be that, that in place of the Human Rights
Act there would be a new statutelet's call it a UK Bill
of Rights for want of a better labelwhich would set out
as the rights every single word that is in the European Convention
but also some extra things, jury trial being one of my candidates
Q48 Tristram Hunt:
To your mind, would that have the dual purpose both of, as it
were, embedding the European Convention in a sort of British story
of rights and freedoms and heritage but then also providing some
nuance and direction to current usage?
Q49 Mr Chope:
Can I ask Anthony whether he thinks one of the biggest conflicts
is between what might be described as Continental jurisprudence
and British jurisprudence? We have always as Brits put a high
premium on fairness and equity, the legal term for fairness, whereas
the Continentals don't seem to have done. The biggest political
problem seems to arise when people seek justice under the European
Convention where they themselves have contributed to their own
problems, perhaps, for example, an immigrant who fails to declare
at the first opportunity that he is an asylum seekermaybe
somebody who has committed as an asylum seeker a crime but then
is told under the interpretation of the Convention that, although
he has committed a crime in the country to which he doesn't belong,
he can't be sent back to the country from which he emanates because
he might then be subject to the laws of that country and maltreated.
One of the principles of British law has always been
that if you want to get help from the courts you must come with
clean hands. Do you see that that is one of the difficulties that
there is at the moment and perhaps the concept of equity could
be written into a Bill of Rights so that people would only be
able to get justice if they themselves had acted fairly and reasonably,
by analogy perhaps with the law of self defence, so that you can't
expect somebody who hits you to be penalised if it was indeed
you who hit them first?
As to the last part of the question and those ideas, I would like
to say that is something on the agenda for consideration, without
going any further as to what I think about it. I think one has
to rememberand this is my second observationthat
the great thing about rights is that everybody has them. I may
be a paedophile but I am still entitled to a fair trial. I may
be a terrorist but I should not be tortured. I personally am more
inclined towards a more minimalist statement of rights than one
that goes in the direction of environmental rights and socioeconomic
rights, because the further you go the more they have to be qualified
in every way. I am more attracted by rights that so far as possible
are statements of things that everybody is always entitled to.
As for how the right not to be tortured is dealt
with in cases like Chahal, as I say, it is a topic for consideration
but I prefer not to be drawn on that now. I would, however, like
to say one other thing in response to what you raise, and this
is to the legal traditions found in cases in mainland countries.
One of the things that I hope will be very seriously considered
in drafting any UK Bill of Rights is giving an express statement
that English courts can and should take account of decisions on
rights, expressed in the same or similar terms to our rights,
by courts in other common law jurisdictions: Commonwealth countries
and the United States of America. Courts do do this from time
to time so it would not be asking judges to do anything they hate
doing. As everybody in the law knows, common law jurisdiction
cases are quite often referred to in English judgements, but there
is very little general public awareness of the fact that our country's
law is part of an international family of law, which has grown
up from us. Whereas we often recognise that the English language
is one of our advantages in our globalised world, we very rarely
seem to realise that our common law is a huge asset because we
share a legal culture with the United States and with Canada;
three of the G7 share the same legal culture. Move on to the BRIC
countries: India, same culture; China even. Well, the Hong Kong
area of China, it is us again. There is no other country in Europe
that has any comparable advantage and I hope that this process
might just shine a little bit more light on that.
Q50 Sheila Gilmore:
I raised the issue with Sir Leigh earlier about the different
parts of the UK and how you see perhaps this progressing through
your process, because there are some clear differences, both in
the legal traditions, and perhaps it is so controversial that
it is important to get this right from the outset. How would you
see the Commission setting about that?
Firstly, it is extremely important to be aware that the Scottish
legal tradition is distinct. I hope I have already indicated that.
I think that the devolution dimension is one of the most difficult
areas that we are going to have to explore. I am not sure that
it has been mentioned yet this morning that the Government announced
an intention to appoint an advisory panel, or rather an intention
that the devolved legislatures should appoint members to an advisory
panel, lawyers rather than politicians, to provide advice to the
Commission on legal and technical aspects of devolution matters.
So that is an area of input that is coming, although so far as
we are aware, no appointments have yet been made by devolved legislatures.
I think Sir Leigh indicated that certainly one of the first plans
we made is to visit Cardiff, Edinburgh and Belfast. I think it
is an area of our work that will take a lot of time, and particularly
the Scottish dimension should.
Q51 Sheila Gilmore:
Do you think there is anything now that makes the concept of a
UK Bill of Rights untenable?
Does it make it untenable? I hope it won't make it untenable.
The Human Rights Act is a UK statute, so I don't see any a priori
reason why a UK Bill of Rights should be untenable, but I do certainly
agree that the devolution dimension needs a great deal of thought.
Chair: Mr Speaight, thank
you so much for coming this morning. I think one of the temptations
in having an expert witness is to raise all those issues that
you have in the back of your head and you finally have someone
in front of you who has a view. I am desperately hanging on to
not asking you about the First Amendment right to tackle the questions
about privacy. No doubt you will be discussing that in your deliberations
on the Commission, so I will refrain. I am looking forward to
the informal session maybe that we can have and raise some of
those issues with you. Thank you so much for your time. You have
been most generous. I hope we can see you again, either here or
perhaps in a more convivial atmosphere, as we interact with the
Commission and its very, very valuable work. Thank you so much.
Thank you very much.