Bill of Rights Commission on politics, preconceptions and football metaphors

27 June 2011 by

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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  1. mike says:

    The whole bill of rights issue is a conservative finger of fudge, a total waste of taxpayers money and a laughable atempt to appease the governments target Sun reading public at best.
    The only bill of rights the UK needs is a completely new constitutional settlement that abolishes to the ashheap of history the flawed westminster style of oppulent government and the anacronistic party led system of politics which constantly leaves the UK swinging from extreme to extreme every decade, and replaces it with a properly separate executive, a non partisan and truly representative legislature and a judiciary empowered to rule on the legality of government or parliamentary behaviour against constitutional issues, all tied together with a load of nice checks and balances to prevent any one of the branches getting out of hand. Oh and Westminster should be closed and the whole kit and caboodle moved out of london into a few portacabins somewhere in the heart of the country, around about Leeds sounds about right.

    1. John Hirst says:

      I like the idea of abolishing Parliament and instead establishing local assemblies.

  2. ObiterJ says:

    A timely post.

    The more I have considered this Commission, the less I like it.

    It is supposed – (by its ToRs) – to consult, including consultation with the public. There is little evidence of it even beginning to do so. It was also supposed to advise government ahead of the UK becoming chair of the Council of Europe. Well, that is not too far away and, as far as I know, there is no public visibility of any advice (if any?) which is being given. Interesting though that they are “reporting to” Clegg and Clarke. Not exactly a display of independence there!

    Whilst I recognise the legal eminence of most – (not all) – of the members of this Commission, I think the make-up is far too narrow – “mostly Queen’s Counsel” says it all. Government and lawyers seem to be acting as if “human rights” is a subject which only they are capable of understanding. It is clear that the executive do not truly like “human rights” and are seeking ways to limit them and also to limit the role of the courts. This needs to be watched.

    Many of the questions put by the Committee seem to have been deftly deflected with over-simplistic comments. Very worrying.

    1. John Hirst says:

      Obiter J: It all does smell a bit fishy.

      I think you will find that actually it is the Chairmanship of the Committee of Ministers and not of the Council of Europe. In any event, I think Lord Lester’s terminology of “the British Presidency” a worse choice of words.

      We are in agreement on the lack of independence. For example, IPSA appears to be more independent.

      Did you note that Michael Pinto-Duschinsky decided against making another fool of himself by giving oral evidence, and chose instead to submit written evidence?

      I still await the Political and Constitutional Reform Committee and the UK Bill of Rights Commission to invite me to give oral evidence!

  3. ian josephs says:

    Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

    Nothing wrong with Article 8 above ,just the way our UK judges interpret it
    The exceptions are too often ignored. “Prevention of crime” etc could allow violent foreign criminals to be deported,
    The “protection of morals” could remove privacy protection from wealthy individual’s sexual indiscretions.
    The “respect for family life “could and should free aggrieved parents to go to the media if they believe their children have been removed unfairly or illegally.

  4. John Hirst says:

    I am glad that you have finally got around to covering this.

    However, under cross examination weaknesses in your version unfold.

    You state “Members of the UK Bill of Rights Commission, an independent body” and “It also has a website, which provides little information beyond the dates of meetings”.

    Sir Leigh Lewis: “…We have created a website and we have invited people to give us their views, and rather encouragingly we have had something like 400 responses on our website…”.

    I questioned this “oral evidence” with the Commission on a Bill of Rights.

    I received the following reply “…the Commission doesn’t have a separate web presence…Incidentally, I should note that Sir Leigh misspoke when he said ‘400 responses’. He intended to say that the Commission had had ‘400 visits’ to its web pages”.

    The link you have provided gives a clue in the URL Justice being the government department. Where exactly is the “independent body” you mention? And since when has a web page, in this case on a government website, become an independent website?

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