The state of human rights

Date: 10 June 2011
Authors: Roger Smith
Issue: Vol 161, Issue 7469
Categories: Opinion, Human rights

In a new NLJ mini series, Roger Smith puts human rights under the spotlight

This is the first of four articles to pose the “Goldilocks question” of the Human Rights Act 1998 (the Act). Is it too hot, too cold, or just right? The series is precipitated by the decision of the government to establish a commission to “investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights (the Convention), ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties”. This was promised in the post-election coalition agreement and finally announced in March.

Opposites attract

The terms of reference are, frankly, gobbledygook. They have been slaved over by a combination of lawyers, politicians and civil servants with the express objective of melding two completely opposing questions: should the core provisions of the Act be destroyed or defended? The fundamental problem is clear. The Tories went into the election with a promise to neuter the Act on which Dominic Grieve, now Attorney General, had spent some effort. They want to weaken the impact of the Convention and its attendant court. The Liberal Democrats, by contrast, want to build upon it.

In the context of the coalition, the diametrically opposed nature of the parties’ views cannot be acknowledged. Handily, the idea of developing a “British Bill of Rights” provides much needed obfuscation. It also means that the whole exercise is conducted in code. This article considers the overall issues and the membership of the commission. Further contributions will evaluate the effect of the Act; the role played by the UK judiciary since the Act came into force; the European Court of Human Rights (ECtHR) to whose decisions the Act gives greater prominence; and the realistic possibilities of a Bill of Rights.

Doubts over UK Bill

Let me cut to the chase. Personally, I believe that the Act is an almost unqualifiedly good thing; overall, the senior judges have played a blinder; the ECtHR needs no more than minor reform; and there are few, if any, realistic political possibilities for a UK Bill of Rights.

Whether or not you agree with these conclusions, you may assent to a further proposition. This committee has been set up to fail. Not only do the terms of reference patch over fundamental differences, the membership of the committee is a disaster in the making. It composes of three very obvious blocks. In the blue corner sit four supporters of conservative plans to pull back from the Act. Three of them, all commercially oriented silks, were members of the committee established by the conservatives while in opposition. They all contributed to a Society of Conservative Lawyers’ pamphlet on a “Modern Bill of Rights”. Jonathan Fisher edited it: Anthony Speaight and Martin Howe contributed. The fourth is a political scientist, Michael Pinto-Duschinsky, the author of a policy exchange pamphlet that advances the intriguing argument that the UK could comply with the European Convention on Human Rights but at the same time exempt itself from the jurisdiction of the ECtHR. In the opposing corner are Baroness Helena Kennedy, chair of Justice’s council; Philippe Sands, dedicated defender of international human rights and opponent of the Iraq war; and Lord Lester, often referred to as the “author of the Human Rights Act”. Lady Kennedy has actually welcomed the idea of a British Bill of Rights as a way of extending protection but all three are unlikely to vote for any weakening of the Act.

Holding the ring are the two neutrals. Sir David Edward, one-time judge at the European Court of Justice, and former mandarin Sir Leigh Lewis. He has the unenviable job of chairing a committee that has not a snowball’s chance in hell of coming to an agreed conclusion. Missing from the committee are members of a fourth block that you might have thought would have a good claim for involvement in human rights: anyone who is not white and, with the exception of Lady Kennedy, not male. The Jewish Chronicle noted with appreciation that four of the nine are Jewish—two on each side—but that aside, breadth of representation has clearly not been an important issue. There are other absences. Apparently, the coalition parties fought themselves to a draw and respectively vetoed Lord Michael Howard and Sir Menzies Campbell as contentious serving politicians.

Reporting back

The committee is encouraged to report back by the end of 2012. The Guardian’s view of its role was dismissive: “It will spend much of its time producing rival dissenting papers that will be the basis of Conservative and Liberal Democrat manifesto commitments at the next election.” There is, of course, always a danger that the commission will stir up trouble. Insurrectionist views against the domination of the UK by European institutions raise the pulse of many a Tory activist but, actually, the scope for reform may be relatively limited and bound by the UK’s adherence to the Convention. However, as Lord Woolf sagely put it: “We have got a stark option: either we accept the European Convention or we don’t accept it and decide to leave the Council of Europe.” The terms of reference have been drafted to seek to avoid this debate by making adherence to the Convention a given. Sir Leigh Lewis may well end up wondering quite why he volunteered to chair a committee so obviously heading for stormy waters.

Roger Smith is director of Justice. Website: www.justice.org.uk

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