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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