Joint Committee On Human Rights Sixth Report


PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT

MONDAY 3 MARCH 2003

Members present:

Jean Corston MP, in the Chair


Lord BownessBaroness Whitaker
Lord Lester of Herne HillVera Baird
Professor the Lord ParekhMr David Chidgey
Baroness Perry of SouthwarkMr Richard Shepherd
Baroness PrasharMr Shaun Woodward





The Committee deliberated.

Draft Report [The Case for a Human Rights Commission], proposed by the Chairman, brought up and read.

Draft Report, proposed by Mr Richard Shepherd, brought up and read as follows:

"Introduction

1. In its 1997 White Paper, Bringing Rights Home, the Government, in anticipation of a parliamentary committee on human rights being established, suggested that committee might examine whether, following the passing of the Human Rights Act 1998, there appeared to be a need for an independent human rights commission.

2. The terms of reference of the Joint Committee on Human Rights are to consider matters relating to human rights in the United Kingdom. In a narrow sense the fundamental rights to which Parliament has directed our attention are the "Convention rights" as defined by the Human Rights Act 1998 which largely incorporated the European Convention on Human Rights (ECHR) into UK law. The Act came into effect in England and Wales on 2nd October 2000. But those Convention rights do not provide an exhaustive definition of the international human rights provisions relevant to the UK.

3. The UK is a signatory to a large number of international conventions, covenants and other treaties which, although not directly justiciable in the UK courts, or (at least at present) subject to determination in individual cases by bodies such as the European Court of Human Rights, impose certain obligations on the UK Government in international law. By some definitions there are over 100 such international instruments relevant to human rights, if the optional additional protocols to various instruments are counted separately. All of these form part of what the Committee's majority report refers to as 'the culture of human rights'.

4. Among the more significant of these instruments are:

    • The International Covenant on Civil and Political Rights (ICCPR)
    • The International Covenant on Economic, Social and Cultural Rights (ICESCR)
    • The International Convention on Elimination of all forms of Discrimination Against Women (CEDAW)
    • The International Convention on the Elimination of all forms of Racial Discrimination (CERD)
    • The United Nations Convention on the Rights of the Child (UNCRC)
    • The Convention against Torture and other Cruel, inhuman or degrading Treatment (UNCAT)

Making law without the consent of Parliament

5. All these obligations have been assumed by the UK by the exercise of the Royal Prerogative and have not received the democratic detailed scrutiny and legislative endorsement of the House of Commons. Although these instruments have not been incorporated directly into law and therefore do not give rise to legal rights and obligations which can be directly enforced in the courts of the UK, these instruments, like any other treaty, bind the UK (as a contracting state) in international law, subject to any lawful reservations entered by the state. The fact that no body, with the exception of the European Court of Human Rights in respect of the ECHR, can authoritatively adjudicate on the compatibility of the UK's actions with these instruments does not mean that the rules are not binding; incompatible action is contrary to international law, but in the absence of an effective judicial remedy the rules contained in these instruments are examples of what have been called 'rules of imperfect obligations', that is rules that are obligatory but breach of which does not attract the imposition of a formal sanction by a judicial body.

6. Despite not having been enacted in national law these instruments are capable of having an impact on the law in the UK. The effects are broadly similar to those which the European Convention on Human Rights had before it became part of the domestic law in the UK through the Human Rights Act of 1998 and the devolution legislation. So far as is relevant to the Convention on the Rights of the Child, Lord Bingham described them (in the pre­Human Rights Act 1998 period) as follows:

First, ¼ where a United Kingdom statute is capable of two interpretations¼the courts will presume that Parliament intended to legislate in conformity with the convention and not in conflict with it¼Secondly, if common law is uncertain, unclear or incomplete, the courts have to make a choice;¼ they will rule, wherever possible, in a manner which conforms with the convention and does not conflict with it ¼ Thirdly, when the courts are called upon to construe a domestic statute enacted to fulfil a convention obligation, the courts will ordinarily assume that the statute was intended to be effective to that end ¼ Fourthly, where the courts have a discretion to exercise ¼ they seek to act in a way which does not violate the convention ¼ Fifthly, when ¼ courts are called upon to decide what, in a given situation, public policy demands, it has been held to be legitimate that we shall have regard to our international obligations enshrined in the convention as a source of guidance on what British public policy requires.1[165]

7. To continue with this example, the European Court of Human Rights has used the Convention on the Rights of the Child as a guide to the proper interpretation of rights and obligations under the European Convention of Human Rights as they apply to children, and national courts in the UK have followed that example, being required by Section 2 of the Human Rights Act 1998 to take account of judgments of the Court when interpreting Convention Rights. In doing this, courts in the UK have the authority of Parliament (through the Human Rights Act 1998); but there is no direct parliamentary authority for taking account of treaties in the ways outlined by Lord Bingham. Furthermore, Parliament has no real power to control the treaty obligations to which the UK subjects itself. As the House of Commons Procedure Committee noted in July 2000—

The power to make treaties is a prerogative power vested in the Crown and exercised on the advice of the Secretary of State for Foreign and Commonwealth Affairs in consultation with other Ministers; there is no constitutional requirement for treaties to be laid before or approved by Parliament. While many treaty obligations necessitate the introduction of primary or secondary legislation which must be passed by Parliament, treaties which require no such legislation (or which require only secondary legislation subject to negative resolution), may come into force without any parliamentary debate having taken place.

8. Thus, as is the case with almost all other international agreements to which this country is a signatory (to take as examples only two of the most significant, the United Nations Charter and the Washington Treaty establishing NATO), the UK's ratification of the Convention on the Rights of the Child has never been formally voted on by Parliament. (Though, as the Procedure Committee points out, our parliamentary procedures, such as they are, take silence to imply consent.)

9. To sum up the position in national law, the provisions of the Convention do not have the force of those of the ECHR which have become part of the law in the UK as mediated through the Human Rights Act 1998 and the devolution legislation (although many of the provisions of the HRA and the CRC overlap or duplicate each other), and an alleged violation of CRC rights does not in itself give rise to a cause of action in the courts. In their Concluding Observations, published on 4 October 2002, the UN Committee on the Rights of the Child observed—

While noting the entry into force of the Human Rights Act 1998 which incorporates the rights enshrined in the European Convention on Human Rights into domestic law, (that it was) concerned that the provisions and principles of the Convention on the Rights of the Child ­ which are much broader than those contained in the European Convention ­ have not yet been incorporated into domestic law.

And it encouraged the Government—

¼ to incorporate into domestic law the rights, principles and provisions of the Convention to ensure compliance of all legislation with the Convention (and) a more widespread application of the provisions and principles of the Convention in legal and administrative proceedings¼

10. When the Joint Committee asked the Minister for Young People about the prospects of incorporation, he commented—

In terms of incorporation certainly we are not looking to incorporate the Convention or, indeed, individual elements of it. It is really framed, virtually all of it, in very aspirational language and not in the sort of language that seems easy to put into primary legislation although I think it is possible to point to areas where legislation we have enacted is helping to enact the spirit of the Convention, for example the statutory guidance on listening to young people in schools which is part of last year's Education Act¼

Despite the democratic deficit in the process of ratification, the Government has assumed obligations under the Convention, which include the duty to implement its provisions to the maximum extent possible within the UK, to publicise those provisions and to make periodic reports on its implementation. In addition, it will undoubtedly have legal effects and be used by the courts like any other treaty in the ways outlined by Lord Bingham in the passage quoted above.

11. With treaties in the traditional sphere of international relations such as the Washington Treaty, the lack of the requirement for explicit Parliamentary consent may be acceptable since it conforms with the traditional division of functions between the executive and the legislature. But when the same procedure is used for international instruments which will alter the internal law of UK or at least affect how the laws are interpreted and applied, then this lack of Parliamentary consent is no longer acceptable.


The problem: not whether we have rights, but how they are interpreted

12. There is an inbuilt danger that mechanisms and structures designed for the protection of human rights will come into conflict with democracy and accountability. Although there is widespread agreement that a number of fundamental rights should be respected when those rights are expressed in general terms, the real difficulties come with the detailed interpretation of the general principles. When "human rights" are applied to concrete situations, it is very often the case that one person's right is another person's burden, or that a "right" if interpreted in a certain way can impose a serious burden on society as a whole. The interpretation of the scope of human rights often involves political value judgements on which there is legitimate scope for disagreement across the political spectrum or within society.

13. The question therefore is not whether human rights should be protected, but rather how should they be protected in a way which is compatible with democratic accountability? This country has one of the longest traditions of respecting and upholding fundamental rights and liberties, and that tradition has been firmly based on the principle that it is the people's representatives in Parliament who have the primary role of protecting the liberties of the citizen. It can be argued that the way Parliament fulfils this task could be improved. But the problem with hiving off the protection of this 'culture of rights' to courts and to bodies such as the proposed Human Rights Commission is that it further weakens the role of Parliament and further detaches decision making in this area from accountability to the electorate.

14. One aspect of the proposal for the Human Rights Commission causes particular concern because it links in with the problem of the democratic deficit outlined above. It is proposed that the Commission in its work would take into account international treaties and agreements in addition to the ECHR itself, and also a wide range of non­treaty materials such as recommendations or resolutions by international committees and bodies. This represents a serious challenge to democratic accountability, and undermines the United Kingdom's long standing constitutional rule that international treaties and agreements are not a source of law in this country unless and until Parliament approves and gives force to them.2[166]

15. These international agreements, resolutions and recommendations are not arrived at by a democratic mechanism. Few if any of them have ever been debated or approved by Parliament. In practice, many of them will not even have been considered and approved by Ministers and the details will be known only to diplomats and experts. Certainly, most of them will be unknown to the wider electorate.

16. But under the Committee's proposal, this ill­defined body of materials would be invoked by the Commission to influence and control the behaviour of the government, public bodies and possibly Parliament itself in this country. The fact that "international obligations" have been assumed (without Parliament's concurrence or consent) will be used as an argument as to why Parliament should go along with them, regardless of the wishes of the electors. Ironically, the Committee's proposal to establish the Human Rights Commission itself is founded on the so­called "Paris Principles" promulgated by the UN Commission for Human Rights a set of "principles" which have never been approved by Parliament.

17. The fact, that there are, by some definitions, over one hundred international instruments which impose obligations on the British government and are relevant to human rights is not an argument for empowering a Commission to give effect to them in the way the Committee's majority suggests. Rather, it is an argument for bringing democratic scrutiny to bear before any more such obligations are assumed; and, indeed, for Parliament reviewing the existing set of obligations to see whether or not they are indeed necessary or desirable.

Conclusion

18. The elevation of social and economic concerns as adumbrated in international instruments and which have not been considered by democratic process, and of which most democratically elected representatives are currently unaware, could pre­empt the historic purpose of Parliament in ascribing priorities and the allocation of public finance. The people through their accountable representatives should determine these matters by commission rather than omission. The value of Non-Governmental Organisations advocating social and economic change is not disputed. Their advocacy is an essential part of informing and leading public opinion but the determination of how public policy develops should remain with the people and be expressed directly by Parliament.

19. The Prime Minister has recently recognised that both Statute and international treaties are not immutable. Outside and, more recently, inside Parliament he has said that Government is prepared to look fundamentally at our obligations under the European Convention on Human Rights.3[167]

20. The Human Rights Act 1998 came into effect in England and Wales in October 2000 and so there has been just over two years of experience of its operation. There is still uncertainty as to its implications for public policy and its effect on the democratic mandate. Our laws and the processes by which we arrive at them are the mirror of our culture and it is always available to a government to seek to enact the provisions of all or any of the international instruments, political, economic and social, that constitute what is called human rights.

21. The Convention Rights as set out in the Human Rights Act 1998 reflect most of the essentials of what our constitution has long understood as our political and civic liberty. These were not determined by the Convention but evolved through our legal and constitutional history. In a real sense they represent the finest emanation of our political culture and define our sense of liberty.

22. It should be understood that Plato's Guardians sitting as a Court in Strasbourg do not secure our liberties. The custodians of our freedom are the people themselves who through the institutions—both Houses of Parliament, our Common Law and our independent judiciary—have fostered, developed and safeguarded this culture of liberty. It is the spirit and the custom of the people which developed and advanced the civic and political principles incorporated in the European Convention long before it came into existence.

23. There needs to be a wider public understanding of how the web of treaties and instruments which have never been democratically considered is used by the European Court of Human Rights and consequently by our national courts and judges to develop a caselaw far beyond the declarations set out in the convention.

24. By bringing to bear social and economic considerations through such treaty obligations which have never been endorsed by our traditional democratic and accountable process the European Court of Human Rights has created a body of law that is not based on any the democratic mandate and which can frustrate and nullify that mandate. The Court's judgements form part of our law far beyond any reading of the Convention Rights. This framework circumvents what has been traditionally our constitutional process. In detaching accountability for law from the consent of the governed it undermines the central purpose of our legislative process."

Motion made, and Question proposed, That the Chairman's draft Report be read a second time, paragraph by paragraph.—(The Chairman.)

Amendment proposed, to leave out the words "Chairman's draft Report" and insert the words "draft Report prepared by Mr Richard Shepherd".—(Mr Richard Shepherd.)

Question put, That the Amendment be made.

The Committee divided:

Content, 1

Mr Richard Shepherd

Not Content, 9

Vera Baird

Lord Bowness

Mr David Chidgey

Jean Corston

Lord Lester of Herne Hill

Professor the Lord Parekh

Baroness Perry of Southwark

Baroness Whitaker

Mr Shaun Woodward

The Committee further deliberated.

Main Question put.

The Committee divided:

Content, 10

Vera Baird

Lord Bowness

Mr David Chidgey

Jean Corston

Lord Lester of Herne Hill

Professor the Lord Parekh

Baroness Perry of Southwark

Baroness Prashar

Baroness Whitaker

Mr Shaun Woodward

Not Content, 1

Mr Richard Shepherd

Ordered, That the Chairman's draft report be read a second time, paragraph by paragraph.

Paragraphs 1 to 241 read and agreed to.

Motion made, and Question put, That the Report be the Sixth Report of the Committee to each House.—(The Chairman.)

The Committee divided:

Content, 8

Lord Bowness

Mr David Chidgey

Jean Corston

Lord Lester of Herne Hill

Professor the Lord Parekh

Baroness Perry of Southwark

Baroness Prashar

Baroness Whitaker

Not Content, 1

Mr Richard Shepherd

Resolved, That the Report be the Sixth Report of the Committee to each House.

Annexes added.

Summary agreed to.

List of Principal Conclusions and Recommendations agreed to.

Ordered, That certain papers be appended to the Report.

Ordered, That the provisions of Standing Order No. 134 of the House of Commons be applied to the Report.

Ordered, That the Chairman do make the Report to the House of Commons and that Baroness Prashar do make the Report to the House of Lords.

  [Adjourned till Monday 10 March 2003 at half past Four o'clock.


1 165   HL Debs., 3 July 1996, cc 1465-1467 Back

2 166   A principle laid down by the Courts in The Parlement Belge [1880] 5 PD 197 Back

3 167   Hansard 29 Jan 2003, col 875 Back


 
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