Who are the Bill of Rights Commission “human rights experts”?

18 March 2011 by

The much trumpeted commission on a UK Bill of Rights has been launched by the Ministry of Justice. It is pretty much as was leaked last week, although it will now have 8 rather than 6 experts chaired by Sir Leigh Lewis, a former Permanent Secretary to the Department of Work and Pensions.

The commission is to report by the end of 2012. Its members, described as “human rights experts”. Are they? The roll call, made up mostly of barristers, is:

 

Martin Howe QC-A barrister whose chambers profile describes him as specialising in intellectual property, European Community law, data protection and commercial and public law. His profile does not mention human rights, but he has been a high-profile supporter of a British bill of rights.

Anthony Lester QC A barrister who is described by Chambers UK 2011 (one of the leading barristers’ directories) as a “hugely respected figure in the public law field, currently combining his practice at the Bar with his work as a peer on the Joint Committee on Human Rights“. As far back as 1990 he chaired the Institute for Public Policy Research’s Judiciary Working Group on “A British Bill of Rights”.

Jonathan Fisher QC – Specialises in tax investigations, disputes and disclosures; proceeds of crime (money laundering, restraint, confiscation, and civil recovery); business crime and corporate defence; commercial and investor fraud; financial services regulation. Again, no mention of human rights. However, in 2006 Fisher wrote a pamphlet for the Conservative Party entitled A British Bill of Rights and Obligations, which said the European Convention on Human Rights is a “fundamentally flawed and lop-sided document, produced as a specific response to the horrors of Nazi Germany, with an entrenched bias in favour of individual rights.”

Helena Kennedy QC – Very well known for her human rights work. Chairs Justice, the legal reform group, and is a member of the House of Lords where she advises on human rights and civil liberties issues.

Anthony Speaight QC – His chambers profile describes him as a commercial practitioner with extensive experience of technology and construction work, including related property litigation and professional negligence. He also has specialist experience in public, regulatory and disciplinary work, especially in relation to the financial services industry. No mention of human right but he did write a paper on the the Impact of the Human Rights Act on the British Constitution for the Society of Conservative Lawyers.

Philippe Sands QC – A well known expert on international law, he is Professor of Law and Director of the Centre on International Courts and Tribunals at University College London. His academic research often strays into issues involving human rights and he is a member of Matrix Chambers.

Michael Pinto-Duschinsky – President of the International Political Science Association’s research committee on political finance and political corruption, member of the academic panel on party funding of the Committee on Standards in Public Life, and a director of the International Foundation for Electoral Systems.He wrote a recent report for the Policy Exchange think tank advocating withdrawal from the jurisdiction of the European Court of Human Rights.

Sir David Edward a Scottish lawyer and academic, and former Judge of the Court of Justice of the European Communities. He is a Professor Emeritus at the Edinburgh School of Law.

So, a mixed bunch, and certainly not all human rights experts unless writing occasional papers about human rights makes one an expert. The terms of reference are as follows:

The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.

It will examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.

It should provide advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of and following the UK’s Chairmanship of the Council of Europe.

It should consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012.

Clearly there is no scope for recommending withdrawal from European Convention, so as I have already suggested, the recommendations will probably amount to tinkering, some political but not particularly legal statements or principle, and not much more.

Reaction has been mixed so far. Reform groups Justice and Liberty have already produced responses. The Guardian has suggested that the commission will be “deadlocked from the start” due to its members being evenly split between supporters and sceptics of the human rights act.

Indeed, the commission appears to have been set up as a trial for the human rights act, in that it looks almost like a court case. There is a roughly equal balance of members in the “for” and “against” camp, and a chairman who, as a civil servant, could act as an impartial judge. One interesting point to note is that the “for” camp are the lawyers who practise in human rights, whereas the “against” camp probably have little experience in the area. Perhaps it would have been prudent to include some non-lawyers without publicly expressed opinions in order to create balance.

I tend towards blogger Obiter J’s view that these seasoned lawyers will be more practical than that once they get stuck into the task. And the fact that withdrawing from the European Convention altogether is not an option for the group will mean they have to be more creative within the fairly tight constraints of their remit. So expect some creative compromises.

The commission may make some more interesting points about the European Court of Human Rights, but a lot can happen in politics and law between now and the end of 2012.

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13 comments


  1. John Hirst says:

    Obiter J: We can all be wrong at times. It was as a result of me misunderstanding what Vivien Stern (now Baroness) had written which led to the Prisoners Votes Case. My AS read it literally, she meant it as no votes for MPs I thought she meant no votes for prisoners! In any event, it’s caused quite a stir.

    Trevor Drewery, my personal officer in the Hull Prison Special Unit, was ex-MP (Military Police), hand picked from a list of volunteers by the No.1 Governor, Phil Wheatley (later DG of NOMS). In my view, it was a good choice. We had trust and friendship. He stuck up for me when other prison officers said I was a waste of time. Once he asked them what they all thought of me, and to a man they all said I was a c**t. When he asked them all to elaborate why, not one of them was prepared to do so. I would contend that it is an example of ignorance, prejudice and fear.

    Phil Wheatley once said, you are too truthful for your own good. I don’t think anybody can be too truthful. However, I understood what he meant. The truth hurts. Therefore some people tell white lies. A problem with those who suffer from AS is that that they don’t know how to lie. It leads to some saying that people with AS say inappropriate things. However, Joshua Rozenberg has described me as someone who does not pull punches, and finds it a refreshing change. It saves you from having to plough through BS to get to the point.

    I have a disability, but with it comes an ability “I see dead people”. In other words, I see things others miss. They say that the King has a suit of green, I look and all I see is a naked man.

    A problem with AS is that we can be too trusting of people and then we find out lies and dishonesty, and it hurts. It has taught me to be more cautious.

    I have a problem with the Commission. I recall Jonathan Aitken chairing the Centre for Social Justice task force for prison reform. What is his experience? He spent 7 months in custody! In prison this period is dismissed with the saying “He’s only in for a sh1t and a shave!”. In other words, a short termer. It’s a bit like the officer in charge of the Army because he went to Sandhurst, when the sergeant gained his experience in the field of conflict.

    I have seen trainee psychologists reading the ABC of psychology interviewing me to write reports, and lawyers reading Prison Law – Text and Materials by Livingstone and Owen when interviewing me to provide legal advice. The authors sought my advice to write their book! So, like Adam asks, what constitutes an expert?

    I am very critical of Michael Pinto-Duschinsky. His paper did not hold up to scrutiny. His appearance before the JCHR did not pass muster. He writes about politics and strayed into the field of law and got bogged down. The problem with the ECtHR is that once it reached a decision it passes the case to politicians. But, it remains a legal and not a political issue. He is out of his depth and it shows.

  2. ObiterJ says:

    A. On being wrong !

    One of my earliest lessons was to think that I was always right. Life in general – and the law certainly – soon knocks that out of you.

    “John is right 99.99% of the time, it’s the way that he says it which is wrong.” I can sympathise with that ! The way something is said can make all the difference. Language is so subtle and fascinating. In dealing with our fellow human beings it is always as well to put the best construction on what they say. Do your research. Debate fairly: make your point: respect the views of others.

    In Lord Neuberger’s speech we see this:

    Sir George Jessel was a titan of the law, and not without confidence. It is said that when his colleague in the Court of Appeal, James LJ, asked him whether it was true that he had said “I may be wrong, but I am never in doubt”, he replied “very true, except I never said ‘I may be wrong’

    Jessel was very definitely a Titan of the law – (one of the greats of our legal history) – but he was wrong on the occasion in question though it took many years to overturn his decision.

    B. On the Commission:

    I have no real problem with the membership even though I can think of several I would have preferred to see there. On my blog I gave a link to a Guardian article which described the Commission as “deadlocked.” I do not see it that way. There are several very good lawyers there and they are trained to weigh conflicting view points. I expect the report to be a fair analysis of the situation.

    I would have preferred a slightly larger Commission – perhaps 12 – and would have preferred a few more non-lawyers. The present membership rather gives the impression that this is a “lawyer’s subject” (like the perpetuity rules in “real” property) and it is far more important than that. Ultimately, it is about our relationship as people with the State in which we live. That is something which goes to the very core of human existence.

    Also, I would not be too critical of Dr P-D’s appearance before a Parliamentary committee. That is one awesome experience. He has produced an interesting paper which merits proper consideration and I think his contributions to the Commission will be interesting (to say the least).

  3. John Hirst says:

    Tim: As to your question, Michael Pinto-Duschinsky aside, maybe this will help? http://en.wikipedia.org/wiki/Political_science

    At least Lord Mackay of Clashfern and Professor Philip Leach and Professor Jeremy Waldron knew what they were talking about, and Dominic Raab, the Home Secretary and Prime Minister were put firmly in their place!

    I note that Mr Shepherd @ q 42 in the JCHR referred to Sir Gerald Fitzmaurice’s dissenting opinion in Golder v UK, “He argued that the ECHR had broken entirely new ground internationally, making heavy inroads into some of the most cherished preserves”.

    If you tasted my home made blackberry jam you would understand why my friends make heavy inroads into it every year…

  4. Tim says:

    I would like to slightly amend my earlier response in light of new developments here:

    ‘Adam is right. No matter how good a lawyer – or a political scientist – you may be, that does not slide over horizontally to ‘human rights expert.’

    I hope that clarifies my meaning, even if it doesn’t explain what a ‘political scientist’ is.

    1. John Hirst says:

      Tim: Michael Pinto-Duschinsky is not a scientist, he’s a waffler!

      Lawyers represent both sides in a legal dispute.

      Sir Leigh Lewis’ job is to decide whether Jobseekers Allowance or Pension wins…

  5. John Hirst says:

    Good question in the title.

    Those familiar with Only Fools and Horse will recall that Trigger greets Rodney with “Alright Dave?”. It might have been said without the question in Number 10 Downing Street in response to the suggestion that an expert on the DWP should chair the Commission on Human Rights.

    “The roll call, entirely made up of barristers, is: Michael Pinto-Duschinsky”.

    Straight from the horses mouth:

    Michael Pinto-Duschinsky: “I am Michael Pinto-Duschinsky and I am a political scientist…I am not a lawyer”.

    Perhaps, Adam will enlighten me how a non-lawyer becomes a barrister? In any event, I am left wondering why he was chosen and upon who’s suggestion? I have criticised both his recent report and his very poor performance under questioning at the recent JCHR meeting. I have read that Dominic Raab knows how to publicise his book, and indeed, in reply to Anthony Lester’s 3rd question Michael Pinto-Duschinsky responds: “I think I cannot do better than referring you to Dominic Raab’s book”! I did note that whilst watching Parliament TV that when Dominic Raab left his seat earlier than at the close of the session, Michael Pinto-Duschinsky trotted out right after him…

    What was the point of a motion (questionably unlawful) followed by a mockery of a debate and a non binding vote? Similarly, the Tories packing the Commission with bums on seats to counter balance those seeking to reform a creaking system?

    I find it somewhat disturbing that what is described under international law as obligations upon the State to abide by the Convention and Court decisions, is translated by some to mean that human rights are dependent upon subjects meeting some as yet undefined responsibilities. Just as disturbing is that there is plenty of evidence of Ministers exercising public power without being responsible.

    As a dedicated Human Rights Defender I am appalled that some elements within the UK are opposed to our subjects having human rights. Hopefully, I will live long enough for us to be recognised in UK law as citizens. Then the non legally sanctioned Supremacy of Parliament can be replaced with the Sovereignty of the People. We will then be on the road to living in a full democracy.

    1. Adam Wagner says:

      John – you are right! Corrected

      1. John Hirst says:

        My personal officer, Trevor Drewery, now no longer with us, opined that “John is right 99.99% of the time, it’s the way that he says it which is wrong”. This upsets alot of people.

        This might put the cat amongst the pigeons http://jailhouselawyersblog.blogspot.com/2011/03/hallo-hallo-hallo-what-have-we-got-here.html

        What Michael Pinto-Duschinsky gives in evidence is remarkably like the Government response or leaked information to the media, in relation to the tactics to be used against the ECtHR.

        Perhaps, someone with a less tainted reputation might ask the right questions?

  6. Ed Bates says:

    Two members of the Commission were in a ‘dialogue’ about the role of the Strasbourg Court (and the courts in the human rights context more generally) earlier this week: Lord Lester, as a member of Parliament’s Joint Committee on Human Rights, and Mr Pinto-Duschinsky, as a witness before the JCHR.

    The transcript is available here: http://www.parliament.uk/documents/joint-committees/human-rights/Human%20Rights%20Judgements/Transcript150311.pdf

    A video of the event may be found at http://www.parliamentlive.tv/Main/Player.aspx?meetingId=7955
    Ed Bates
    University of Southampton.

  7. public_lawyer1986 says:

    Agree with the post- disappointingly the committee is a bit of a farce. As noted above, over half have very little (if any) background in these issues, and anyone who read the Policy Exchange paper and saw Pinto-Duschinsky speak to the JCHR this week can’t help but think he is completely out of his depth here (in fact, as far as I can see he seems to have few credentials- if you ask me, proclaiming yourself a “world expert” doesn’t count for much!).

  8. Tim says:

    Adam is right. No matter how good a lawyer you may be, that does not slide over horizontally to ‘human rights expert.’

  9. Zak Golombeck says:

    “certainly not all human rights experts unless writing occasional papers about human rights makes one an expert”

    Small dig at Pinto-Duschinsky?

    1. Adam Wagner says:

      No dig intended! I think that comment can apply to a few of the members. This is not to say they aren’t qualified – they are all successful senior lawyers so I am sure will approach this task forensically and responsibly as they do their daily work.

      But for them to be described as “human rights experts” is probably putting it a bit highly, given that some of their (presumably self-penned) CVs don’t even mention human rights!

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