Shadow Justice Secretary speaks to lawyers on “The State of Human Rights”

30 March 2010 by

We have been following with interest the debate over the proposed “Bill of Rights” which all of the major parties are considering in some form. Dominic Grieve QC, the Shadow Justice Secretary, gave a speech last week to the Human Rights Lawyers Association which touched upon the Conservative Party’s proposals. Francis Klug wrote in The Guardian that:

Some of us asked Grieve to clarify the effects of these proposed interpretation clauses at yesterday’s meeting. I am not sure we were any the wiser. The purpose appears to be to free our judges from the approach of the Strasbourg court (they are already free from slavishly following the case law) where rights are not absolute. The text of the ECHR could still be used, Grieve says (although he suggests this is only his personal preference, not necessarily his party’s). But it is not at all clear that the human rights framework for balancing or limiting rights – based on preventing harm rather than creating eligibility criteria – will survive these suggested “interpretation clauses”.

The text of the speech has not been published, but Mr Grieve has published a speech on the same topic on his website, given in November 2009. In that speech he made clear that the Human Rights Act would not be replaced without a wide public consultation. However, he did provide some clues as to the nature of the “interpretation clauses”, saying:

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

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