Bill of Rights Commissioners speak out over internal strife
2 January 2013
In March I complained that the Commission on a Bill of Rights should open up. Well, two weeks after publication of the Commission’s final report(s), two of the Liberal Democrat-appointed commissioners have given their insider perspectives of the Commission in an article in the London Review of Books.
Nothing in Helena Kennedy QC and Philippe Sands QC’s article is particularly surprising. The Commissioners emerge as a dysfunctional group of seasoned advocates on two sides of a case, with no presiding judge to rein them in or decide who was right. The report itself, with its bewildering array of separate papers and minority reports, demonstrated how little common ground there was between the commissioners.
I recommend reading the article in full, but here are a few interesting tidbits. Of course, some caution is necessary as the other members of the Commission (particularly the Conservative ones) may remember things differently.
Things began hopefully:
we all knew that our views ranged so far across the political spectrum that the chances of meaningful consensus were not high. Still, we did all try very hard.
But that hope was soon extinguished:
In the search for consensus, we wanted to know what the true objectives of our Conservative friends might be. Eventually, and only after some considerable effort, almost a cross-examination, we drew from three of our colleagues the admission that they wanted the UK to leave the European Convention as soon as possible – which extinguished any possibility of real consensus.
It turns out that most ‘foreigners’ (i.e. UK residents outside of London) like the Human Rights Act:
The subject of foreigners (which we have come to understand as being broadly defined to include anyone living far away from London) reared its head in another unexpected way. It emerged that people in Northern Ireland, Scotland and Wales feel considerably warmer towards the European Court in Strasbourg than they do to the UK’s highest courts in London. Similar feelings were also expressed in Birmingham and other parts of England. Contrary to what we were being told by some of our colleagues as we met in the House of Lords, it seemed that the sense of lack of ‘ownership’ of the Human Rights Act was neither widespread nor deep.
So who doesn’t like the HRA?
The intolerance and lack of support appear to come largely from UKIP and Conservative Party stalwarts in various parts of England where the issue of Europe remains charged.
The first consultation confirmed this, so a second consultation was held to make absolutely sure (I did wonder why…):
Concerned that the results might be misleading, the commission ordered a second consultation. To our amazement, satisfaction or horror (depending on perspective), it produced virtually the same result as the first.
There is no substantive analysis of the consultation responses in the report itself (I had noticed this as well):
Outside of the ‘Overview’, for example, the attentive reader will find no attempt to evaluate – as opposed to record – the arguments that were put to us by those who responded to our consultations or shared their views with us. As noted, there is no effort to set out what a new Bill of Rights might contain. This leads us to the conclusion that the majority includes some for whom a Bill of Rights may be little more than a re-branding exercise intended to foster a greater sense of ‘ownership’, and others for whom a Bill of Rights offers a convenient means to reduce rights, to cast off Europe and return to the delusional idyll of an earlier age of sovereign authority unconstrained by obligations set out in international instruments.
And there is also (bizarrely, for a report which is supposed to be about replacing the Human Rights Act), no analysis of the way in which courts have been applying the European Convention on Human Rights in the 12 years since the HRA began operating:
Striking too is the fact that the main report offers no complaint about the way in which the courts of the United Kingdom have interpreted and applied the Human Rights Act: not one judgment handed down by the courts of the United Kingdom that purports to apply the Human Rights Act or the Convention is identified in the main report for criticism.
The rest of the article reproduces Kennedy and Sands’ minority report, which is well worth reading.
As I said, none of the above is particularly surprising, although it is quite depressing. We already had a sneak peek at the level of internal discord when Michael Pinto-Duschinsky left in March. The Commission cost around £750,000, and we can only speculate what a properly thought-out commission which wasn’t designed to delay, fudge and fail could have achieved.
The almost total silence from the politicians who launched Commission following its report shows how little political will there is (and, arguably, always was) to take any action on the issue. On one view, given how far-out some of the ideas proposed by the minority reports were, inaction may in fact be the safest path for rights protection in the UK.
There are likely to be further recriminations. In the mean time we can only hope that our politicians can, going forward, approach the issue of human rights with intellectual honesty and political courage, two things clearly missing in the design of this Commission. Unlikely, but we can still hope.
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Despite having a Bill of Rights of 1688 in the UK including the Magna Carta dating back to 1215 and therefore for all intents and purposes a written constitution in all but form which has been developed and adapted over the centuries to meet the ever continual changes and challenges of the modern age with the incorporation of the European Convention on Human Rights (note the latter two words) why you might well ask are we entertaining this debate? Is it on constitutional, political or legal reasons or is it because we are unable to redress wrongs within this system and need reform, if so is it a call for constitutional reform or legal reform for not all legal challenges call for constitutional reform, further not all legal obligations imply a moral duty and vice versa not every moral obligation implies a legal obligation (Lord Coleridge R v Instan 1896). Are we then in need of a constitution due to other reasons perhaps a political one, for example where the executive is in need to curtail the Royal prerogative, or like Lord Hailsham who argued in the late 70’s that we need one as the executive has become too powerful and unheeding and need rebalancing with some judicial legal semanticism when so much of a constitution is derived with non-legal words, assertions, practices and customs enjoined over the ages. Do we need a written constitution because of a prevailing circumstance such as a revolution or an adoption of a new state? If we need reform do we follow the American route with a federal and confederate approach or adopt a written constitution with flexibility as that in Singapore or do we maintain the status quo with an unwritten constitution like ours and that of New Zealand and Israel but with a marked difference, a constitution of life for life that seeks to influence, adopt and meet the challenges not simply in the modern age but alas for the future whatever that may hold?
The answer to these questions and many more in essence have already been highlighted in recent events but more significantly it reveals the need to reflect, appreciate and value what we hold, that is simply we have a residual, resilient but more importantly a constitution that is far reaching than any other. In short we have a constitution of life for life, liberty and the pursuit of balance in body, spirit and through the embodiment of its institutions namely the legislature, judiciary, and the executive creating a balance of power to meet the ever increasing demands, needs and changes in modern life.
It is clear to me that we hold a Constitution that is a living, breathing instrument that articulates fundamental rights in the form of absolute rights (Right to life), qualified (Civil Liberties) and emerging in the form of the articles (Right to privacy). From this embodiment citizens can be sure, safe and secure in the knowledge that fundamental rights cannot be compromised or curtailed, with rights that are qualified needing a degree of justification/s, and with emerging rights that are yet to be established but alas constantly being questioned through legal challenges and due process. The institutions each have separate roles and responsibilities through a process of checks and balances ensuring smooth running of the machinery of government accountable by the governed.
Thus the incorporation of the ECHR which we were not too long ago advocating see the commentary by Lord Lester in the call of a right to privacy is nothing more than a stroke of ingenuity. Its institutions like the judiciary comprising a wide array of talent, diverse from each sovereign nation having the ability and influence across the Union and our continents. Each decision and legal challenges which citizens can redress as individuals or through their legal representatives enjoying a composite but alas a balanced decision in all our interest stemming from their respective experiences of due process gained from coming from numerate diverse states. Its legislative body again gaining experience of diversity and influence through the uniform legislative debating process making changes and meeting challenges of the Union through the executive process in the form of the Council of Ministers. Its sovereign legislature having the ability to implement reform through a separate process of debate and scrutiny to meet its specific demands and where necessary having the option of opting out or simply taking time to reflect take the issue regarding the right of a prisoner to vote.
This confederate process being pooled, diversified and nourished into a federation of influence is a cause for celebration, rejoice and more importantly a reflection of what our joint endeavours can achieve not simply in Europe but perhaps in time the world. Take our system of judicial review, the NHS, the Welfare trust, free Education and much more the envy of the world not simply in Europe.
For every issue or concern that arises through individuals or groups or bodies we can only resolve each matter no matter how complex or inordinate through this process of pooling, diversity of opinion and debate where each forum plays apart to the individual debate to the extent it becomes one of public interest, with each forum being accountable to each other, powers to scrutinise, articulate free from all influence through independence and impartiality of thought. Its institutions whilst each playing its part achieves an overarching goal of unification through redress, opinion, debate and judicial supervision creating a balance of power, influence and scrutiny all accountable to the governed through public interest and transparency.
What then are the advantages of such a constitution with flexibility, fluidity, accountability, transparency and in essence a living instrument? The answer is simple look at the countries with a written bill of rights such as the US with a rigid constitution with a similar set of rights that takes forever and a day to change through its constitutional with similar institutions where decisions are difficult to reach due to the political representations and appointments of the executive and legislature where decisions are often reached in secrecy and not always in the public interest, contrast this with our system of independent and diverse judiciary making decisions transparently with efficiency and speed. Thus the debate in the US over gun law presents a fundamental problem both for the constitution as it was unable to make changes through due process due to its rigidity, inflexibility, but also for its citizens as they were unable to challenge laws through its constitutional process and seek changes. This therefore poses a legitimate question and debate as to what the constitution is for, if not for change, if it is stagnant and unable to meet the modern challenges and needs of society.
The beauty about our constitution is that it is largely a non-legal material developed throughout the ages in the form of customs, practices, norms and ideals. However, whilst the status and form of government has dramatically changed, which I believe calls for reform, it is this reform that we need to examine in its form, format or ideal, thus we need input from all the machinery of government from the civil service, local agencies, bodies and organisations, the legislature and its institutions both from the public, private and volunteer sectors and the same for the executive. But equally important we need import from the very people we seek to govern and claim allegiance or legitimacy in our laws, rules and practices. The public enquiry into press reform I feel failed in its most fundamental objective that is not seeking to change practices of the press through criminal sanctions, fines and regulative supervision, it has failed because it fails to establish the exact relationship between the state and citizen, what rights do we have has individuals to privacy, when does a private matter become public and what exactly is public interest. Do we as individuals always need to seek redress from the courts where matters have become exposed, can individuals, organisations, bodies not able to resolve issues in the public interest themselves? Are the courts any better in resolving these issues than individuals before it arise or through a process of mediation? Can the courts address all our meets and needs, clarify position any better through its legal precedents and legal jargons sometimes that makes sense, sometimes with obscurity and peculiarity.
In short our residual constitution is simply a constitution of life, for life, liberty and the pursuit of balance in an imperfect world with the desire to instil perfect intentions through all its institutions in the Union representative of all sovereign nations in the form of its independent and impartial judiciary, the executive and legislative representative of all citizens of equal concern from whom it claims allegiance, dominion and rule. I commend it to all.
I believe we should be challenged this lack of support for HR alongside the fight Equity over Benefits/Low Pay; there are integral in my mind
By reason that the UK is largely an unrepresentative pseudo-democracy in that the current electoral system does not reflect or return the full will of the people, we, that is The Almshouse Residents Action Group for which I currently speak, tend to agree that inaction is the safest endpoint, both for the purposes of our specific mission (that of returning Almshouse Residents to the protection of the courts re tenure) and the general public good.