And then there were seven: Pinto-Duschinsky quitting Bill of Rights Commission

12 March 2012 by

Updated | Dr Michael Pinto-Duschinsky has told the BBC’s Sunday Politics that he is resigning from the Commission on a Bill of Rights, effectively citing artistic differences. The seven other commissioners apparently wrote to the Justice Secretary stating Pinto-Duschinsky was “significantly impeding [the Commission’s] progress”. He has also written an article in the Daily Mail explaining why he quit (see my other post responding to that).

I argued last week that the Commission should open up more, but leaked internal emails were not exactly what I had in mind.

The resignation is hardly a surprise. Pinto-Duschinsky’s relationship with the other Commissioners has been rocky from the start, and he has been unabashed about complaining publicly when he has felt his views were being ignored. When the Commission published its initial consultation document he instantly told the Daily Mail that he ”strongly regret[ed] the terms in which it has been presented.” He was concerned that the document ignored the extent to which the European Convention had undermined Parliamentary Sovereignty. However strong Pinto-Duschinsky’s views, this public airing of Commission laundry must have made very difficult to hold reasoned debates behind closed doors.

You might also remember my post on the Commission back in September 2011 which was illustrated by a picture of the squabbling cat and dog pairing Itchy and Scratchy. I speculated that Pinto-Duschinsky might be the reason for the bizarre ‘side-letter’ which the Commission had sent alongside its main proposals for reform of the European Court of Human Rights. It now seems clear that he was, but the Commission’s chair, Sir Leigh Lewis, probably realised that if Pinto-Duschinsky remained implacably opposed to the other 7 members, the Commission’s final report – due in under 10 months – could not have an equivalent Pinto-Duschinsky side car.

Pinto-Duschinsky, the Commission’s sole non-lawyer, was brought on following his controversial report for the Policy Exchange think tank, Bringing Rights Back Home: Making human rights compatible with parliamentary democracy in the UK. His BBC interview, where he picks up some of the themes from the report, is worth watching. He reserved his real ire – in his interview and accompanying Mail article – for the Ministry of Justice’s supposed unseen control over the Commission:

The commission answers to Ken Clarke. He and Nick Clegg set it up and selected the chairman. His civil servants run the commission and staffing. His hands are everywhere. [Justice Secretary Clarke] is following the agenda of the human rights establishment, which is well represented on the commission. In doing so he is sidelining not only parliament but also the prime minister, and I consider that disloyal

For his part, Justice Secretary Ken Clarke responded that he (personally) has “played no part personally in the workings and deliberations of the commission, which is independent of the government.”

But leaving aside the conspiracy theories, Pinto-Duschinsky’s main complaint is that the Commission has ignored the wishes of the Prime Minister who, when he announced the Commission said he thought it was “about time decisions are made in this Parliament rather than in the courts”. To that end, Pinto-Duschinsky has argued for a “democratic override” of European Court of Human Rights decisions (see page 4 of the Commission’s July 2011 “side” letter expressing what must have been Pinto-Duschinsky’s views on the topic).

What Pinto-Duschinsky seems to have failed to understand is that the Bill of Rights Commission was not set up to serve the Prime Minister and the Conservative Party. It was the creature of a compromise agreement between the Conservatives and their Coalition pro-ECHR partners, the Liberal Democrats. Indeed, that compromise was etched indelibly in the Commission’s terms of reference, which are to “investigate” a UK Bill of Rights “that incorporates and builds on all our obligations under the European Convention on Human Rights“.

What that means, and what Pinto-Duschinsky could not accept, is that no matter how much the Commission debates the issue of Parliamentary sovereignty, on that issue its hands are tied. There are two reasons for this.

The first is that Article 53 of the European Convention on Human Rights, which the UK is a signatory to and the Commission must incorporate into any recommendations, states that the UK must “abide by the decision of the [European Court of Human Rights] in any case to which they are parties”.

This means that the UK will have to do as the Strasbourg court says on Abu Qatada, prisoner votes or in any other judgment involving the UK. If Parliament does not like individual decisions, it must either pull out of the ECHR completely – which appears to be off the agenda for now – or renegotiate the court’s role. This is what the Government is now trying to do through its chairmanship of the Council of Europe, which runs the Court, and its fairly radical proposals for the upcoming Brighton Conference.

The second reason the Commission has largely ignored the Parliamentary sovereignty issue is that despite the rhetoric, most lawyers agree that the Human Rights Act 1998 was a pretty conservative (with a small ‘c’) piece of legislation. It cleverly maintained Parliamentary Sovereignty by constraining the role of courts in relation to primary legislation to effectively an advisory one. Courts can declare primary legislation incompatible with the European Convention but cannot strike that law down. So the final word still lies with Parliament, which has exactly the democratic override over courts’ decisions that Pinto-Duschinsky seeks in relation to the Strasbourg court.

So it is not the invisible hand of the Ministry of Justice which was constraining the Commission’s work, but rather its deliberately restrictive terms of reference. To that end, I have compared any eventual Bill of Rights to an updated Ford Fiesta; new look and a few new features, but essentially the same car. Presumably, it became difficult to work with a Commissioner who wished he was on a different, more powerful, Commission.

Where does this leave the Commission now? Meetings of the seven remaining Commissions, now a Queen’s Counsel-only club, will probably be a lot calmer. But as Pinto-Duschinsky may have realised too late, the ultimate result may be simply to reaffirm how clever a compromise the Human Rights Act was. And the real action may be over in Brighton as the Government attempts to renegotiate its relationship with the European Court of Human Rights.

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  1. ObiterJ says:

    Dr M P-D seems to not quite see that the HRA 98 already achieves a balance between Convention rights and the right of Parliament to have the final say.

    The fact that the Commission has now become entirely a “lawyer’s club” or even a “QC’s club” is actually somewhat worrying and, I think, will make acceptance of their report more difficult. A much more diverse Commission was needed and it should have included a number of non-lawyers. The impression is coming out that one has to be a qualified lawyer – or even a “silk” – to properly understand the arrangements for human rights in the UK.

    Having said this, if anyone thinks this “QC’s Club” are a bunch of government stooges, they will be very much mistaken.

  2. Far too kind to MPD. He seems to have a fetish about Parliamentary Sovereignty. But a commission that has Lord Lester cannot be accused of lacking heavyweight constitutional knowledge, whereas I think Martin Howe would be surprised at any suggestion that he kow-tows to Europe.

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