Bill of Rights Commission on politics, preconceptions and football metaphors

27 June 2011 by Adam Wagner

Members of the UK Bill of Rights Commission, an independent body asked by the government to investigate the case for a UK Bill of Rights, has been giving evidence to the Political and Constitutional Reform Committee (transcripts here: part 1, part 2). The sessions give an interesting if predictable insight into the likely discussions between the Commission’s members.

The group has made slow progress so far, and little is known about how it will operate, save that any proposed bill must “incorporate.. and build.. on all our obligations under the European Convention on Human Rights“. It is under no great time pressure, having been asked to report by the end of 2012. It is comprised of 9 people, mostly Queen’s Counsel and not all of whom are human rights experts. It also has a website, which provides little information beyond the dates of meetings. Given the importance of the process and lack of information so far, the evidence sessions are of interest.

Sir Leigh Lewis, a senior civil servant, is chairing the group. His answers to the committee were cautious, given that the group had only met once, but there were some nuggets of interest. He was asked first about a concern voiced when the group’s members was announced, namely whether individuals who have expressed strong views about human rights in the past can be objective. Of course they can, said Sir Leigh:

I am encouraged that the members of the Commission-of course they come with their own experience and they come with their own views on these issues-without exception have said to me that they want to play a part in a collegiate endeavour…

Lord Lester of Herne Hill, one of the architects of the Human Rights Act 1998,
also gave evidence and was confident that the group was “not going to split on party lines and argue like cats in a bag.” Nonetheless, we should be cautious not to expect too much from the Commission, which is “essentially an ad hoc body set up to deal with what is essentially a political issue and to see whether there can be a high common factor of agreement.” He gave a lyrical answer when questioned on his own starting position:

My starting position on all this is the wise words of a great American jurist, Judge Learned Hand. Speaking in Central Park in 1944 on the spirit of liberty, he said, “The spirit of liberty is the spirit that is not too sure that it is right”. I keep those words in my chambers, carved on a bit of stone, to remind me of the danger of my own dogmatism.

On criticisms that the committee, which includes 8 white men and one white women, is not diverse enough, Sir Leigh said

as part of our programme of consultation we want to try and consult widely within the UK, not just geographically but widely in terms of the diverse makeup of the UK

Lord Lester agreed that the lawyerly make-up of the group would have “serious disadvantages“, but that “looking for a black female opponent of the Human Rights Act… would have been a highly artificial and strange process.”

The group is also likely to produce an issue paper for consultation purposes, but its primary role was not to increase understanding of human rights of, as Sir Leigh put it, those in the semi-mythical “Dog and Duck”. Many of the witnesses mentioned their experiences at football matches, which Baroness Helena Kennedy explained as “one of the ways in which middle class men like to convey a camaraderie with the working classes“, but also said that the group should be as deliberative and consultative as possible.

Lord Lester blamed the poor public perception of human rights on the media and some members of the government:

some sections of the media-self-interested, God bless them-have campaigned vigorously against the Human Rights Act, totally unscrupulously, completely unfairly, mischaracterising everything as being a result of the Human Rights Act… I very much hope that those who make policy… will when it comes to it, stand up against pressure from some sections of the media and others who seek to discredit the whole process.

Sir Leigh would not be drawn into the question of whether the group’s options were too limited by its terms of reference, which prevent the group arguing for a total withdrawal from the European Convention on Human Rights. However, if some members “take a different view of what the terms of reference might cover… we will need to look at that“.

The group will need to work quickly in order to advise on the Interlaken process, which is examining the future of the European Court of Human Rights, and input into the UK’s chairmanship of the court which is coming in November. A major issue is the court’s backlog, of which Sir Leigh said:

the backlog of 150,000 cases which is growing, as I understand it. It is not a great advert, is it, for any institution if it is facing such a backlog?

On mechanics, the group will meet three days per month and will report directly to Deputy Prime Minister Nick Clegg and Justice Secretary Ken Clarke.

Also questioned were committee members Anthony Speaight QC, a commercial barrister who has previously argued on behalf of the Conservative Party for a bill of rights. He described himself as a lifelong “pro-European Conservative“. Although human rights has not been central to his practice, he has experience of the Human Rights Act and it 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

Nevertheless 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“. And although it was drafted by an Englishman, “it is widely perceived as being from elsewhere. It is not perceived as being part of Britain’s heritage“. He would therefore prefer the underlying principles to be “seen to be one that we more directly owned”.

Professor Philippe Sands QC disagreed with this assessment:

If you put this debate in its historical context, look at who actually drafted the European Convention, where the ideas came from, where the norms and values came from, you find that there is a great deal of cross-fertilisation from what one might call English, Scottish, Welsh, Northern Irish values and those incorporated in the European Convention.

Speaight made clear that something needs to be done about the European Court of Human Rights’s tendency to overreach:

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.

Martin Howe QC, an intellectual property barrister who has been a strong proponent of a bill of rights, warned that the recommendations must not go too far:

I think one of the effective problems is that once you transfer a power to the courts to strike down legislation for non-compliance with a Bill of Rights, you then find that the political views of the judiciary become very important, as in the United States.

Illuminating, ish

This first glimpse into the workings of the important Commission is fairly illuminating, if only to show that the views of group’s members are as expected, but they are also being open-minded about potential outcomes. That said, this open-mindedness is largely a product of the limited remit of the Commission itself, which has no access to the nuclear option; that is, withdrawing altogether from the European Convention.

My impression of the evidence is that the members are still to a large extent puzzling over what useful input they can have into the debate. Part of their task is to find “ways to promote a better understanding of the true scope of… obligations and liberties“. Some of its members, for example Lord Lester, clearly feel that the Human Rights Act is doing a good job but is being scandalously misrepresented by the media. This suggests that what is needed is a rebranding of the act rather than anything more substantial.

In a way, Lester’s view fits with that of the sceptics on the committee, such as Anthony Speaight and Martin Howe; they see the European aspect of the current act as inconvenient and unpopular. As Professor Roger Masterman has convincingly argued on the UK Constitutional Law Group blog, they may come to see that the history of human rights law has been more about a symbiotic relationship between “British” and “European” law than a confrontation; as lawyers in a common law jurisdiction, this dynamic should be familiar to all the members.

The Commission is due to report by the end of 2012. Hopefully they will find something useful to do between now and then.

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