UK Liberty

Green Paper on Rights and Responsibilities launched

Posted in Bill of Rights (and Responsibilities), politicians on liberty by ukliberty on March 24, 2009

Finally.  How exciting.

Ministry of inJustice:

Published on: 23 March 2009

A Green Paper on constitutional reform, launched to start a national debate about the future of rights and responsibilities.

The paper explores if our rights and responsibilities should be drawn together in one place, perhaps in a Bill of Rights and Reponsibilities, so they are easily accessible and understood. It suggests a range of subjects that might be covered by such a Bill, including equality, good administration, children’s well-being, healthcare, criminal justice, victims’ rights and the environment.

And – hold on to your hats – they’ve actually got some examples of responsibilities:

Finally, although not necessarily suitable for expression as a series of new legally enforceable duties, it may be desirable to express succinctly, in one place, the key responsibilities we all owe as members of society, with a view to reinforcing the imperative to observe them. Such responsibilities could include treating National Health Service and other public-sector staff with respect; safeguarding and promoting the wellbeing of children in our care; living within our environmental limits for the sake of future generations; participating in civic society through voting and jury service; reporting crimes and co-operating with the prosecution agencies; as well as more general duties such as paying taxes and obeying the law.

My word… I have the responsibility to obey the law.  I didn’t realise.

More soon.  Betcha can’t wait.

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The Human Rights Act is held up by Labour as a Good Thing

Posted in Bill of Rights (and Responsibilities), law and order by ukliberty on March 5, 2009

But is it true?

An interesting article by Dominic Raab.

Yet another Straw speech – when is he going to enumerate our responsibilities?

Posted in Bill of Rights (and Responsibilities), politicians on liberty by ukliberty on February 9, 2009

Jack Straw gave the keynote speech at the annual conference of the British Institute of Human Rights.  Usual guff.

People are now well aware of what we are entitled to but less cognisant of those duties beholden upon us. ‘Liberty means responsibility’, wrote George Bernard Shaw, ‘that is why most men dread it’. It is perhaps not surprising that we have so far been less willing to accept what we owe than what we are owed.

I think Shaw said most men dreaded liberty because they would have to take responsibility for themselves rather than displace their burdens on to the government. I’m not entirely certain that he would have suggested “we owe” anything, unless of course he was being terribly witty and arch.  Perhaps Jack’s researchers will find us an apposite  quote.

… Some in the field of human rights appear to recoil at the very mention of responsibilities in the same sentence as rights.

But throughout the ages, rights and responsibilities have been seen together. Take Jeremy Bentham: ‘Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence’.

Er yes Jack, but really one has to read the whole thing rather than just selectively quote.  Indeed I could quote from the same piece something that Jack wouldn’t like at all:

The legislator ought to confer rights with pleasure, since they are in themselves a benefit; he ought to impose obligations with repugnance, since they are in themselves an evil.

 As with Paine (see below) they are reciprocal:

According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burthen on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. 

Back to Jack:

Or Thomas Paine: ‘A Declaration of Rights is, by reciprocity, a declaration of duties also. Whatever is my right as a man is also the right of another and it becomes my duty to guarantee as well as to possess’.

Er, as I’ve said about Jack quoting Paine before, perhaps it’s best to read it in context (perhaps the whole thing, if so inclined):

While the Declaration of Rights was before the National Assembly some of its members remarked that if a declaration of rights were published it should be accompanied by a Declaration of Duties. The observation discovered a mind that reflected, and it only erred by not reflecting far enough. A Declaration of Rights is, by reciprocity, a Declaration of Duties also. Whatever is my right as a man is also the right of another; and it becomes my duty to guarantee as well as to possess.

Back to Jack:

The issue is that they are sotto voce, implied, inherent. If they are already the ‘other side of the same coin that stipulates our fundamental human rights and freedoms’ [Professor Robert Blackburn, evidence to JCHR 29th report], why should this not be made more prominent, explicit and clearly articulated? This is not to make rights ‘earned’ any more than they already are.

They already are fairly explicit – Article 10 for example:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

What more needs to be said?

Look, if I have “freedom of speech”, I shouldn’t really abuse it, in the sense of causing harm to others (say, falsely shouting fire in a theatre and causing a panic).  But if we feel such actions amount to something that should be prohibited by criminal law then we should create a criminal offence that prohibits it.  

The approach should be that we may do anything unless it is prohibited.

The Government’s approach seems to be that we may only do that which they allow and impose on us their moral direction.

And this relates to what people such as the Earl of Onslow keep saying in JHCR evidence sessions:

what a Bill of Rights is there to do is to restrain executive over-exuberance, to put it at its mildest, and the responsibility of everybody in this room is to do nothing else but obey the law, and if you do not obey the law you accept the consequences.

Jack isn’t genuinely interested in Bentham’s brand of utilitarianism or Paine’s (literally) revolutionary ideas: he isn’t interested in the greatest number being happy, he wants us to be happy on his terms; he isn’t interested in limits on government, because they would be limits on his government.

It would help us if Jack would stop mis-interpreting what better minds have said and finally enumerate the responsibilities that he thinks we ought to have enshrined in law.*  

Until then his speeches will merely be about appeasing people who think human rights acts are “villains charters” rather than anything useful.  

I await the forthcoming Green Paper with waning interest.

 

(check out the 2007 Green Paper where responsibilities / duties / obligations are mentioned god knows how many times but there is not one example, so far as I can see.)

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.

Later,

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.

Dear Daily Mail readers

Posted in Bill of Rights (and Responsibilities), law and order, politicians on liberty by ukliberty on December 11, 2008

No matter what you may think of the Human Rights Act and the European Convention on Human Rights, Jack (Boot) Straw is rather dishonest and does not have the answers.

The Daily Mail:

… But despite his love of this traditional pageantry, in an interview with the Mail he leaves no doubt that his in-tray as Justice Secretary is groaning with all-too modern problems: the future of the Human Rights Act, the worrying drift towards a law of privacy,

I’m not entirely sure what’s worrying about a law of privacy, except for newspaper editors, such as Paul Dacre of the Daily Mail, who may need to figure out a new source of revenue.

and what to do about our increasingly litigious culture.

Mr Straw is quietly fuming about the proliferation of ‘ambulance-chasing lawyers’. He has spoken out before about the ‘scandalous’ charges imposed by lawyers using ‘no win, no fee’ rules. These can allow them to waive fees in exchange for a share of any awards.

They were introduced by Labour to help the poor gain access to justice but have been exploited by unscrupulous solicitors who encourage clients to make improper and often costly personal injury claims. 

It is a problem he is fighting even now in his department. Workplace compensation claims are a major bugbear of his. He has ordered the services he oversees, including prisons and the courts, to contest every single one.

Even when in the wrong?

… As a former barrister who now oversees the legal system, Mr Straw is surprisingly critical of his profession and is particularly exercised by the abuse of the £2billion legal aid system by ‘imaginative lawyers’.

He says: ‘The fact is that we’ve had in this country in the last 25 years an astonishing growth in the number of lawyers and also in legal aid.’ 

Of course, he doesn’t mention the proportion of that £2bn that is ‘abused’.  Like him, I cannot tell you how much is abused but I can tell you it will be less than 57%, because only 57% is spent on criminal defence.

Fresh from a recent visit to India, he calculates that England, with 120,000, has at least three times more lawyers per head of population than India, which has 850,000. 

He isn’t suggesting a cull, but he argues that with the recent cap on legal aid there are now too many lawyers chasing a limited amount of business. And they won’t thank him for suggesting that ‘their imagination tends to expand’ as they find novel ways of claiming fees. 

Presumably the market will ‘cull’ the numbers, so I’m not sure there is anything to get too worked up about.

‘Although it has flattened out recently, legal aid rose further and faster in the 80s and 90s than any other social service,’ he says. ‘We now spend as much on legal aid as we do on prisons, which is extraordinary.’ 

Hmm… average resource cost per prisoner £39,000, prison population over 80,000, that means over £3bn is spent on prisons… um, Jack?  £3bn is more than £2bn!

He raises a wider concern, that as a country we are becoming overlitigious. ‘I’m concerned, and so are many senior lawyers, about those operating at the margins of acceptability, the ambulance chasers and those using no-win no-fee,’ he says. 

Is he surprised that ten years on, the Human Rights Act which he brought in is so unpopular? For a moment he struggles to answer, then asks an official to pass him a copy of the act: ‘It’s on that pile of other legislation for which Straw’s a culprit,’ he laughs, suggesting that he is long accustomed to being blamed for unpopular laws. 

He is quick to defend what is arguably one of the most far-reaching  –  many would say damaging  –  pieces of legislation introduced by Labour. He argues that the act has suffered unduly in the public’s perception in the aftermath of 9/11 as Islamist militants have used it with great success to avoid deportation. 

It is an ‘Aunt Sally’, he says, often blamed unfairly for problems which are in fact caused by other laws and judgments  –  quite a few of which he conveniently dates back to the Tories.

Hmm, presumably cases such as Chahal v UK, which was a landmark in the issue of not being able to deport people to countries where they face a real risk of torture, no matter what their crime, but I’m not sure what relevance the Tories have to European Court judgements.  Indeed they contested this particular case against Chahal.

And he claims that people don’t tend to notice when the Human Rights Act actually does good in helping to defend individuals from unacceptable abuse.

Well, that’s probably true, because the papers only tend to write about things that go ‘wrong’ with it, rather than things that go right. 

While taking care not to say anything which would appear to be an overt criticism of the judges, he has strong views on their recent performance. As befits one of Westminster’s most wily operators, Jack Straw is the master of the discreet stiletto. 

Some judges have been ‘too nervous’ about deporting terrorist suspects, he says, when there was no reason to believe they were at risk of death or torture  –  which would preclude their deportation under the act.

Well, there are no case citations here so there’s nothing to go on – there is no evidence.  I can tell you, however, that I’ve read a few judgements and judges deport unless there is a real risk of torture or some other breach of the Convention – they don’t have a choice in this, it is not up to them to change the law, that is the job of our legislators.

And he is ‘frustrated’ by some of the judgments which have encouraged voters to conclude that the act is a ‘villains’ charter’ which favours the rights of criminals over those of victims.

There is no judgement that says the rights of a criminal takes precedence over those of his victims.  There is no case in which the rights of the criminal has been set against the rights of his victim – our criminal justice system just does not work like that.  But we must be fair to the accused, and any Justice Secretary worthy of the name should be making that clear.  

The outgoing Director of Public Prosecutions said in October that “Rhetoric which suggests that [rebalancing] can be achieved will never deliver. It misleads and prosecutors should stay away from it”.  

Jack Straw is trying to mislead you.

But it is not just the issue of human rights which preoccupies him. A succession of controversial High Court libel judgments  –  most notably in favour of Formula 1 boss Max Mosley who won a libel action against the News of the World despite being exposed as serial user of prostitutes  –  has raised alarm bells that judges are quietly legislating for a privacy law.

HeadofLegal dealt with this at the time: “as for the idea that all this has happened by stealth – give me strength! Dacre only thinks a law of privacy is “being” introduced by the back door because he is ten years behind the curve, as they say. Everyone who was paying attention at the time knew that the Human Rights Act 1998 – 1998 – gave effect to the right to respect for private life, and the press certainly knew it, because they fought for and obtained concessions from the government during the bill’s passage. Never was there a clearer case of Parliament having legislated in full knowledge of what it was doing.”

Mr Straw shares the concerns of those who are worried about a drift towards a privacy law, although he argues it was already happening before the Human Rights Act came in. 

Er yes, possibly because we signed and ratified the European Convention in the early 50s.

But he is cautious. He thinks the time has come for a select committee of MPs to study the issue, and now accepts that the Government might have to intervene, possibly by appointing a formal commission to make recommendations. ‘There’s certainly a good case for a select committee to look at it and, in due course, for a commission,’ he says. 

Mr Straw’s unfinished business is the plan for a new Bill of Rights and Responsibilities promised by Gordon Brown when he came to power, but he concedes it might never materialise. 

The project has struggled to get off the ground in the face of widespread scepticism  –  and quite a bit of derision  –  from Cabinet colleagues. Part of the problem is timing. Constitutional changes are difficult to sell at the best of times; in the teeth of a recession no one wants to listen. 

Last month he was ‘panned’ by ministers around the Cabinet table who wondered, not without justification, if such tinkering was the right priority for a Government fighting for its political life. 

But Mr Straw argues that a document setting out what is expected of every resident, from obeying the law to loyalty to the country, would help reverse the drift towards selfish individualism and personal rights in favour of a much healthier commitment to the wider society. 

‘What we want to do,’ he explains, ‘is generate a debate about whether there should be a declaration of responsibilities and rights which grow together, the kind of rights we are owed and the rights which we owe, in a single document. 

‘It’s about identifying values that bind us and what it is that makes Britain great, that makes the whole of us greater than the sum of its parts.’ 

Well, casting aside the centuries of talk about liberty that makes all that a nonsense, we already know that “Human rights are rights which people enjoy by virtue of being human: they cannot be made contingent on the prior fulfillment of responsibilites … the ECHR and other human rights instruments already provide for certain rights to be limited when justified by legitimate, competing interests”.  

Any interference with any right or freedom must be necessary and proportionate.

Now, I confess I have some sympathy with the view that we should be allowed to deport ‘preachers of hate’, terrorists, Home Secretaries, and other people who have been fairly determined as undesirables, whether they face a real risk of torture or not (probably should depend on their crime) – I’m not sure of what a ‘just’ answer is here.

But I will tell you this: rightly or wrongly, we will not be allowed to deport such people under such circumstances while we remain signatories to the European Convention on Human Rights – and, by extension, members of the Council of Europe, and (I think) the European Union, for which our signature remains a condition of our membership.

So if Jack Straw is saying he is going to introduce a law that will change these things, he hasn’t got a chance unless it involves us renegotiating those arrangments – which, on the face of it, would involve withdrawing altogether.  And, while many readers may not have a problem with that, they must surely recognise that it is easier said than done.

Don’t fall for it!