Oral evidence on Bill of Rights from Straw and Wills
Some uncorrected oral evidence has been uploaded to the JHCR’s website:
The purpose of this session is to follow up on our report on a Bill of Rights and Freedoms for the United Kingdom and the Government’s reply, and it is also our annual oral evidence session with the Minister of Justice and Human Rights Minister. We are pleased that we are joined by the Secretary of State for Justice, Jack Straw MP, and Michael Wills MP, the Human Rights Minister at the Ministry of Justice.
There is a weird bit early on from Straw, during his comments on his Daily Mail interview (incidentally he says it “was entirely accurate in the way in which it quoted me”):
Aside from the fact that I took not one but three oaths when I became Lord Chancellor, which I swore before the Lord Chief Justice, about respect for the judiciary and, as it were, protector of their independence, I happen to feel very strongly that there should be a mutual respect between these separate and distinct arms of the state: the executive, the legislature and the judiciary.
In the UK, we don’t separate those arms of the state: for a start, the executive is dependent on and constituted from the legislature. I’m therefore not sure how Straw can claim they are “separate and distinct”.
I’m still uncertain about how he interprets Article 3 of the European Convention on Human Rights:
I think everybody has to recognise, including those who strongly support the Human Rights Act, as do I, that there is an issue of balance here and how we deal with people who may have committed very serious offences within the jurisdiction or overseas citizens whose presence here was not acceptable, how we deal with those cases within the overall framework of not sending people back to torture or death is a very difficult one. The argument is not should you, as it were, override the purpose of, say, Article 3, but where does the balance lie.
There is no balance, it is an absolute prohibition. Of course Chahal v UK came up again, and Saadi v Italy, in which the UK Government intervened, and where the court unaminously endorsed the approach in Chahal - if there is a real risk of torture, the person must not be deported (see HeadofLegal for a good write-up). A similar point was made to Straw and he responded,
There is a balancing not of whether there should be an absolute prohibition to people’s submission to torture or death; the difficult judgments arise over whether such a risk is there in respect of sending back an individual to a particular country. … I think there is scope for a perfectly reasonable difference of view between, say, that which has been taken by the British Government (and a number of other governments; we are far from alone in that) and for example the European Court. … I think it depends on the strength of the views.
What’s interesting here is that the Government did argue, when intervening in Saadi, that the risk of torture must be balanced against the risk to the community if the person wasn’t deported. In other words their intervention was not about the weighing up of views of different parties about risks (not that it would have fared any better). Does Straw really not get it, or is he playing to the gallery?
Well, whatever; ultimately it doesn’t depend “on the strength of the views”, it depends on what the court decides. And a good thing too.
Later they discuss Rights and Responsibilities:
we have no intention of resiling from the Human Rights Act.
We have never said that rights are contingent on responsibilities. Self-evidently you have a responsibility to obey the law but that does not mean that if you fail to obey the law when you go before the court you lose all rights to a fair trial. That would be an absurdity and an affront to democratic society. … In respect of health people have had very clear rights since 1948 and the establishment of the Health Service. What Alan Johnson is now doing through his NHS Constitution is saying yes, you have rights to health but you have also got obligations to keep yourself healthy and not to waste other people’s money. It does not mean if you fail to meet those obligations the doctor will not see you. What it does is seek to raise the nature of people’s behaviour and change people’s behaviour not just by the blunt instrument of the law.
I don’t think law, whether it’s run of the mill primary or secondary legislation or a Bill of Rights, should be used to “send a message”. It should instead be used to delineate with precision, unambiguity, clarity, and consistency, what is unlawful.
In health there is the development of the NHS Constitution and in that people have rights to a wonderful health service but they have also got responsibilities to themselves, interestingly, about their own health and to take care of their own health as well as not to waste the resources of the Health Service because by wasting the resources of the Health Service then they were denying other people’s rights.
But but but,
I made it very clear that we are not saying that people’s rights to healthcare are contingent on them showing responsibility, but we are trying to create a society – and society depends on this – in which there is a greater level of responsibility and we need to raise these issues.
So in essence the Bill of Rights and Responsibilities will be nothing more than a wagging finger!
Richard Shepherd said,
A Bill of Rights is essentially about the liberty and freedom of the citizens and it is through the democratic process and protecting the democratic process to advance all those causes that this Committee has become a plaything for special interest groups.
Now, because Parliament is very jealous of Parliamentary sovereignty we will struggle to get it here, but we could do worse than look at the USA’s Bill of Rights‘ restrictions on government, too: “Congress shall make no law…” and so on.
Straw made the interesting point that,
… it was not so much what those who framed the Bill of Rights had in mind, but in the 19th century through Dicey we developed a view that people’s rights were defined negatively, but it was never appropriate to define them positively, and I think we have learnt in recent decades, not least because we are now a much more heterogeneous society than we were, that you have got to define rights in a positive way as well.
But the Earl of Onslow said,
… what a Bill of Rights is there to do is to restrain executive over-exuberance, to put it at its mildest …
Then there is some realisation that Straw & co. seem to be approaching it from the law of equity, which sadly I have even less clue about than common law (i.e. none).
Hirst v UK was mentioned in relation to how the Government responds to adverse human rights judgements - a case that went before the ECtHR regarding the rights of prisoners to vote (our Government said none of them should be able to, the ECtHR said a blanket ban was a violation of the Convention). Lord Lester was rather critical of the Government’s “prevarication”, claiming that Cyprus and Ireland had dealt with it very quickly even though they weren’t parties:
The suspicion is that what you are seeking to do – and I am sorry to put it in this adversarial way – is to delay it until after the next election for fear that the tabloid newspapers would crucify the Government.
Straw responded that it was because the two main parties (Labour and Conservatives) agreed that prisoners shouldn’t have voting rights, so the question was how to abide by the judgement without Parliamentary support:
We have to meet our obligations but we need to do it in a way which achieves consent as well as meeting in full our obligations.
I wonder what the point is of signing up to a Convention when we ignore inconvenient judgements.