Joint Committee on Human Rights Appendices to the Minutes of Evidence


APPENDIX 25

Memorandum from Liberty

"EXPLORING WHAT THE HUMAN RIGHTS ACT HAS MEANT SO FAR FOR THE GOVERNMENT, THE COURTS AND WIDER SOCIETY"

INTRODUCTION

  Liberty lobbied for the incorporation of the European Convention on Human Rights for many years and we were very pleased when the Government decided to demonstrate its commitment by including the measure within its first Queen's Speech in 1997. We were also pleased that the Government, particularly the Home Secretary, consulted with us and other human rights organisations regularly during the drafting of the Bill and during its passage through Parliament. The Government did listen to some of our concerns and the Bill was improved as a result. We did not persuade the Government to adopt all of our proposals and their stubborness on some issues such as excluding organisations from taking cases in their own name under the Act was unfortunate.

  We were also disappointed by the Government's peculiar opposition to setting up a Human Rights Commission (which we are glad to see is a separate topic for consideration by the Committee). Nevertheless the Government did instead set up a Human Rights Act Task Force and ensure that we and other interested parties were members. This Task Force has, within limits, worked well and with the help of the Home Office's Human Rights Unit has been able to act as a catalyst to ensure government departments and others implemented proper training regimes and reviews of policy and procedures.

  The Task Force has not been able to persuade the Government to change its mind on the creation of a Human Rights Commission and used the excuse of this issue being on the Committee's agenda as a way of putting off re-considering this issue.

  In the time available Liberty has only been able to produce a short note of some issues which might assist the Committee in framing some of the questions it may wish to put to the Government. We would be happy to provide further details of our concerns should this be helpful.

THE GOVERNMENT

  We have also been disappointed by the Government's attitude to other international human rights treaties. The Government said in the White Paper that was published with the Human Rights Bill that it intended to ratify protocol 7 to the Convention as soon as legislative time became available to change some relatively esoteric provisions relating to equality between spouses (Article 5). This was three and a half years ago and there is still no progress. Protocol 4 to the Convention creates more difficulties for the Government because it contains a right of free movement for British Citizens. However, we have tried to assist the Government to partially overcome some of the issues involved by assisting with the drafting of reservations to the particular article but our offer of assistance has been ignored. Perhaps most disappointing has been the Government's refusal to ratify the anti-discrimination provision, protocol 12 to the Convention. The failure also to ratify other measures, particularly the optional protocol to the International Covenant on Civil and Policitcal Rights, which allows individuals a right to petition the United Nations Human Rights Committee, confirms our view that their commitment to human rights is superficial.

  The major stumbling block to the implementation of the Act has been the ambivalence of the Government at the highest levels towards the Act. It would seem that although some individual ministers were supporters of the Act that support did not reach higher levels. This meant that the Government did little to go out and sell the virtues of the Act even though they had from October 1997 to October 2000 to do so. We know, for instance, that although the Prime Minister was available initially to speak at the launch event on 2 October he chose not to make this a priority.

  It is not surprising that the Act has not created the beginnings of a culture of rights when there is ambivalence to its principles within Government. This problem is illustrated by the fact that the approach to the Act by the Government has all too often been a defensive one and, not surprisingly and partly as a result, the Act has been attacked in the press. In addition and as a consequence therefore the approach of some civil servants has been a grudging commitment to follow the law but to go little further. We hoped the Act would be used as a vehicle to promote human rights and the Convention would be used as a floor to protect rights rather than as a ceiling to our aspirations.

  Too many civil servants have taken the view that where policies may clash with the Convention they can sit back and wait until the courts decide whether or not their policy complies. This minimalist approach seems to be taking a greater and greater hold in the months since October 2000 (or perhaps more people have been willing to admit it).

  This is a shame because in many cases, at least at the early stages, there was a willingness amongst civil servants to embrace the principles and use the Act to improve services. This has resulted in a considerable change in some areas of Government. This enthusiasm could have been used to better affect if the politicians themselves had been more committed.

  It may be that it was a mistake for the Act's promoters to be based in the Home Office. This is not a criticism of the staff of the Human Rights Unit but more the recognition of a structural problem. The implementation of the Act creates probably more restrictions on Home Office policy than any other department. We are aware that ministers in that department have expressed frustration that their policies had to be altered or dropped in order to comply with the Act. It is difficult to believe that this frustration did not tarnish their commitment to some of the principles contained in the Convention and the Act.


THE COURTS

  It was clear from the speeches of the senior judiciary before the Act came into force that the Act was not likely to be interpreted in the courts as positively as Liberty would have liked. Nevertheless, we were still disappointed by the very critical approach that many judges took to those lawyers who raised human rights points. We accept that lawyers have duty to be careful to take only properly arguable points. Some judges seemed to suggest that lawyers should be more cautious in human rights law than in others.

  We have been particularly disappointed by the manner in which the courts have dismissed human rights arguments. Reading the judgments in criminal cases from the appeal courts has been particularly depressing. The implication from some judgments has been that jurisprudence from the Court in Strasbourg (and even the Scottish Appeal Courts) is less worthy of consideration than the common law. Furthermore, despite the Acts careful (we would say over careful) preservation of the supremacy of primary legislation judges have gone further than necessary in dismissing human rights claims by asserting the importance of the intentions of Parliament.

  We do not think that overall the courts have followed the principles in the Convention properly, we think the European Court of Human Rights may take a different view and we intend to encourage applicants to take their cases on to the Strasbourg Court.

WIDER SOCIETY

  The resources allocated by the Government for advertising and promoting the Human Rights Act were insufficient. The absence of a Commission to promote the Act combined with the Government's defensive and ambivalent attitude has meant that the principles of human rights have not been communicated successfully to the public at large. Our belief is that many people still either see the Act as a "villains' charter" or have unrealistic expectations of what affect it will have on their lives.

PARLIAMENT

  We realise that Parliament's role is not a category that the Committee has asked for comments on but we believe that it should not be left out. The Act has been criticised for encouraging a litigation culture and lawyers have been taken to task for dominating the debate on the Act (and of course for also having a pecuniary interest). However the absence of any significant interest in the Act from all but a few Parliamentarians has been most noticeable.

  The special balance in the Act designed to protect Parliamentary sovereignty is only justified in our view if Parliament is prepared to make its contribution to protecting and promoting human rights. If those Parliamentarians who are not lawyers (and even some of those that are) are not willing to put in the effort to understand the principles and even some of the jurisprudence that the Act is based on then it is not surprising that the debate is being dominated by a few lawyers. Whilst we understand the specific reasons for the delay in setting up your Committee that delay does nothing to promote the view that Parliament has a key role to play in the protection of human rights.

  Our view of the failure of Parliament to properly assert its role in this is confirmed by the way Parliament has allowed the Government to use Human Rights Act section 19 statements. As you will know, the Government's approach to section 19 statements has significantly reduced their usefulness. In assessing whether a particular provision complies with the Act and the Convention those advising the Government assume that all those public authorities that have to implement the provision will act in compliance with the Convention if they have the power to do so. So for instance a Bill which gave wide discretion to the police to act in ways which would clearly violate the Convention would still be assessed as complying with the Convention because discretion would be constrained by the Human Rights Act. So far as we are aware only one Bill was assessed as having provisions which did not comply with the Convention. This was because the Government had lost a vote in the House of Lords on "section 28" the provision which forces local authorities to discriminate against lesbians and gay men and was forced to retain a discriminatory measure in the amended Bill.

  This approach to section 19 ousts Parliaments' role in ensuring that legislation complies with the Act. Instead of Parliament having duty to ensure that legislation complies the duty is left with those who have to implement the legislation and to the courts if they get it wrong.

  This leads to absurd results. To give an example from the proscription provisions of the Terrorism Act which have just been used by the Home Secretary. It is now a criminal offence to help organise a meeting which will be addressed by someone who professes to belong to a prescribed organisation. The person does not have to be an actual member of the organisation; at the meeting, he or she need not talk about the organisation at all, could oppose the activities of the organisation, could advocate non-violence or, indeed could talk instead about his or her favourite recipes. The maximum penalty for all those "offences" is ten years in prison.

  Amendments to these provisions to ensure that the legislation complied with the Convention more closely could have been made. Examples like this damage the perception of Parliament as a guardian of our rights. Section 19 statements are virtually meaningless and say little more than that the Government expects those that implement the measures to obey the law. The acceptance of such bland uninformative section statements by Parliament diminishes its authority.

March 2001


 
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