In Defence of Rights
Philippe Sands and Helena Kennedy
We were appointed to the Commission on a Bill of Rights in March 2011 by Nick Clegg. The circumstances were not auspicious, and we were concerned from the outset that our composition – all white, almost all male, almost all lawyers and London-based – would undermine our ability to speak with any legitimacy. The Conservatives had come into government committed to tearing up the Human Rights Act, an early product of the previous Labour government seen by many of the new government’s Tory supporters (and some in the media) as little more than a charter for foreign terrorists and local criminals. The Liberal Democrats, on the other hand, strongly supported the Act and the provisions of the European Convention on Human Rights that it introduced into UK law. There were eight members, under the chairmanship of Leigh Lewis, a retired senior civil servant who was hopeful that we might exceed the miserably low expectations of most commentators and come up with something useful.
We met in a deeply political environment. Hanging over our endeavours was an obscure judgment of the European Court of Human Rights that had ruled the UK’s ban on all prisoners getting the vote disproportionate and contrary to the European Convention. This was something of a leitmotif for our Conservative colleagues, emblematic of all that had gone wrong with the European Court, which on their view had taken the perfectly decent text of the European Convention (largely written by British Conservatives, we would regularly remind them) and transformed it into a European monster that was killing off parliamentary sovereignty and eating away at the foundations of the British constitution. By the end of our deliberations the prime minister had told Parliament, contrary to the advice of his own attorney general, that he would never implement the judgment. This dismal blow against the rule of law was something on which our commission maintained a discreet and sad silence. By a happy contrast, just a week earlier, Theresa May had underscored the government’s à la carte approach to human rights when she embraced other judgments of the European Court in deciding to intervene to stop the hacker Gary McKinnon being sent to the US, because to do so ‘would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with [his] human rights’.
Our deliberations were generally genial and collegial, and all the more so after the loss of one of our Conservative members, the political scientist Michael Pinto-Duschinsky (who managed with admirable agility to jump in mid-air, having been pushed off the ledge by his own side). Even so, 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.
We were thrown off course by unexpected rocks encountered at various points along the way. 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. What is the point of an agreement, we wondered, that joins those who see a Bill of Rights as a means of strengthening the connection with the Convention, with others for whom a Bill of Rights is at bottom a means of ditching the Convention and severing more links with Europe (with the added benefit, from our colleagues’ perspective, of allowing rights to be taken away from certain foreigners and criminals)?
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.
Our first public consultation confirmed this: the responses were broadly supportive of the status quo, with the caveat that most people wanted more rights for more people, not fewer rights for fewer people. 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.
After 18 months of deliberation and reflection, it was clear to us that there has been no upsurge of agitation and anger towards the Human Rights Act, the European Convention or the European Court. To the extent that these legal instruments touch the lives of the people in the UK, the evidence before us suggested that the effects were largely tolerated or supported. 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. David Cameron’s position as leader seems increasingly questioned by sections of his party who want a speedy referendum on whether the UK should remain within the EU, and many of his backbenchers make little distinction between the Council of Europe (and its Convention on Human Rights) and the EU, which is entirely distinct. Knowing that it would be economic madness to withdraw from the EU, leading Tories such as Chris Grayling, the current secretary of state for justice, seem to treat the Convention as little more than red meat to be offered to backbenchers and members, without fully appreciating the risk that talk of withdrawal presents for the system as a whole.
When appointed, we were entirely open to the possibility of the UK’s having a Bill of Rights. But now is not the time for it. On the contrary, it would pose considerable dangers, both in terms of the break-up of the United Kingdom and for the European Convention that the UK has nourished and which provides valuable safeguards around the whole of Europe. For that reason, we considered it more useful to prepare a minority report. The reaction to the majority opinion since the publication of the Commission’s findings makes it clear that the UK Bill of Rights has been kicked into the long grass. This is the text of our report:
In March 2011 the government established a Commission on a Bill of Rights, charged with investigating ‘the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties’.
We accepted appointment with an open mind about a possible new Bill of Rights for the United Kingdom, on the basis of terms that to us were clear and left no room for doubt on a crucial issue: any future UK Bill of Rights must ‘incorporate’ our obligations under the European Convention, and its rights must ‘continue to be enshrined in UK law’. Perhaps in setting the terms, and rooting our remit within an acceptance that the UK would remain part of the established European system, it was hoped that a high level of agreement might be reached. That has not been possible, because three of our number appear to us to be committed to a UK Bill of Rights as a preliminary step to withdrawal from the whole European system.
We have been pleased to join with our colleagues on certain important aspects of the Commission Report, in particular the recognition that now is not the right time to embark on changes to the Human Rights Act. There is broad agreement that future developments should await the outcome of the Scottish referendum, after which a Constitutional Convention would be the best place to consider these matters, within the context of a wider constitutional review, one that allows all parts of the United Kingdom to be involved in a suitable manner.
We are pleased also to support the Commission’s interim and final advice to the government on reform of the European Court, which sets out a number of areas in respect of which we believe that certain specific changes could be made which would be helpful and desirable. There are of course court decisions here and in the European Court with which one may reasonably disagree. In general, however, we believe that the European Court (as well as the Convention) has played a vital and positive role in contributing to the promotion of human rights across Europe, even if it is far from being a perfect institution. The challenge is to continue improving on its functioning, as we have sought to do in our domestic courts over recent decades.
We are unable, however, to join our colleagues on the central issue, namely whether in principle we are in favour of a UK Bill of Rights. It is impossible to speak of principle when the true purport is not being addressed explicitly and would include, for some at least, a reduction of rights. We consider that the moment is not ripe to start moving towards a UK Bill of Rights until the parameters of such proposals are clearly set out. We note in this regard that our colleagues in the majority have, in our view, failed to identify or declare any shortcomings in the Human Rights Act, or in its application by our courts. We consider that it would be preferable to leave open the possibility of a number of options that, without prioritisation, could be addressed by a future Constitutional Convention. These options include maintaining the status quo, or adopting a new and free-standing Bill of Rights, or moving to new constitutional arrangements that would incorporate and build on the rights protected by the Human Rights Act.
In reaching this conclusion we have been influenced by three important factors, all closely connected: devolution; the responses to our consultations; and the view of some of our colleagues on decoupling the connection between the United Kingdom and the European Convention. We return to these points below, but before doing so it is appropriate to place our work in context.
Seventy years ago, Winston Churchill declared one of the aims of the Second World War to be the ‘enthronement of human rights’. Within a decade, the United Kingdom was leading international efforts on a non-binding Universal Declaration of Human Rights (1948) and, shortly after, negotiations were concluded for the European Convention on Human Rights (1950). These two instruments opened the door to a new international legal order, one that placed the protection of the individual at its heart and set limits on the actions taken by states and their governments. The European Court in Strasbourg was created to provide enforceable safeguards against abuses of public authority.
These developments were recognised as being likely to have profound consequences. Professor Hersch Lauterpacht, the Whewell Professor of International Law at the University of Cambridge whose 1945 book first proposed a draft international bill of rights, wrote of a ‘radical innovation in international practice and a surrender … of the sovereign rights of the state’, nothing less than ‘a substantial sacrifice by states of their freedom of action’. David Maxwell-Fyfe, who led the negotiations that led to the European Convention (and went on to be home secretary in the 1951 Conservative government) welcomed the Convention as ‘a simple and safe insurance policy’ in favour of ‘a minimum standard of democratic conduct’, a text that set out ‘a system of collective security against tyranny and oppression’. He recognised too the implications for the UK, namely that ‘the Convention superimposes an international code on our unwritten constitution.’
The United Kingdom ratified the European Convention in 1951, and it came into force two years later. It took another 13 years before the UK agreed to give individuals in the UK the right to file complaints with the European Commission, and later the European Court, in Strasbourg. Three more decades passed before the rights set out in the European Convention could be invoked before judges in all the courts of the United Kingdom, an innovation that arrived with the adoption by the Labour government of the Human Rights Act in 1998, and its coming into effect in 2000. This brought rights home and should be a source of pride. It cannot be said that the UK has moved with undue haste in these matters, or that it embraced the European Convention with its eyes closed.
In our view the Convention has brought important benefits for Europe and the UK. Individuals in 47 states are now able to take challenges to abuses of public power to an international court in Strasbourg. At home, the Convention has brought great benefits: it has, for example, reinforced our commitment to due process in court proceedings, to children’s rights and the rights of the elderly in care homes, to freedom of expression and assembly, and to protecting individuals from unfair extradition. In reinforcing the ban on torture it has served as a source of international inspiration. ‘Most of the supposed weaknesses of the Convention scheme are attributable to misunderstanding of it, and critics must ultimately answer two questions,’ wrote Lord Bingham, the former Senior Law Lord. ‘Which of the [Convention’s] rights would you discard? Would you rather live in a country in which these rights were not protected by law?’
Despite these benefits, and the fact that the courts of the United Kingdom are now able to influence developments in the Strasbourg Court by their interpretation and application of rights under the Convention, the Human Rights Act has been a source of concern since its inception. This is coupled with complaints that the European Court set up under the 1950 Convention has increasingly interpreted and applied the Convention in a way that its drafters never intended. Critics seize on some judgments – such as that which ruled that Britain’s blanket ban on allowing prisoners to vote – as evidence of a court that has spiralled out of control. We do not share this view and consider that the court’s approach is consistent with established principles of international law governing the interpretation and application of treaties. What some politicians and elements of the media have repeatedly failed to make clear to the public is that the court was criticising the totality of the ban: the court did not question the principle that serious offenders should not be allowed to vote.
Over the past eighteen months the level of opprobrium heaped by some on the Convention and the court has grown, and much of it is based on misinformation, often deliberate. A few weeks ago Sir Nicolas Bratza, who recently retired as the UK judge and President of the European Court, spoke of ‘a crescendo in the criticism of the court from many quarters in the United Kingdom, in which it has been accused of inefficiency, incompetence and meddling in affairs for which it was not created’. He has responded forcefully, in terms with which we agree, pointing out that ‘the Strasbourg Court is not a “foreign” court’, but ‘an international court in a system in which the United Kingdom has from the outset played, and continues to play, an important role and in which a United Kingdom judge sits in all cases against his or her country’; that the UK has voluntarily signed up to the Convention which imposes requirements as a matter of legal obligation, and that to ‘disregard judgments is to fly in the face of the rule of law’; and that ‘the negative attitude to the court and the hostile language in which it is frequently expressed not only does damage to the authority of the Court within the United Kingdom; it also, regrettably, does profound damage to the standing of the United Kingdom within the international community.’
This is the general background against which the present coalition government decided to set up a Commission on a Bill of Rights.
The first factor that has caused us to depart from the majority is devolution. It has become clear that the United Kingdom is in the process of significant constitutional transition. Ruth Davidson, leader of the Scottish Conservatives, has rightly noted that the UK ‘has experienced a great deal of constitutional change in the last 15 years, not least the establishment of a Scottish Parliament and Assemblies in Wales and Northern Ireland’. The Human Rights Act is embedded in these constitutional developments in such a way that any alterations to the Act are likely to have significant implications for the powers of the devolved legislatures. The full impact of this interweaving has only become apparent to us over the course of our work and in the counsel we have received from our advisers from Scotland and Wales. Some of the challenges are set out in the thoughtful paper prepared by one of our colleagues.
Moreover, since the Commission was established more constitutional changes have come into sight, and a date has been set for a referendum on Scottish independence (autumn 2014), the outcome of which could have significant consequences for the whole of the United Kingdom. Even without that, there are calls for greater autonomy as the UK moves incrementally and inevitably towards a recognisable federal structure. We are greatly concerned, therefore, that a premature move towards a UK Bill of Rights would be contentious and possibly even dangerous, with unintended consequences. In our view, some of our colleagues on the Commission have failed to acknowledge the full implications of the relationship between a possible UK Bill of Rights and the United Kingdom’s other constitutional arrangements.
It is plain that any Bill of Rights – as well as any other options that would alter the scheme set up by the Human Rights Act – would have to reflect the changing allocation of powers in the reconfiguration of the United Kingdom. The idea of a Constitutional Convention following the Scottish referendum in 2014 appears to have growing support, and in our view that is the proper place to decide on which (if any) of various options should be taken forward, whatever the outcome of the referendum.
This brings us to the second factor, namely the views expressed in our consultations and deliberations, which we cannot ignore. We are acutely conscious, in this regard, that our Commission is so unrepresentative and unbalanced in its membership (all white; male lawyers, all bar one; and based in London, all bar one) that it should pay particularly careful attention to the views expressed to it during its work programme and consultations. While in the minority on the Commission, our views are aligned with the views put to us by respondents to our two consultations and by many others with whom we consulted, as this report recognises, in the sense of overwhelming support to retain the system established by the Human Rights Act (and very considerable opposition, for now at least, to the idea of a UK Bill of Rights). Of respondents who answered our ‘retain or repeal the HRA?’ 88 per cent opted for retention (the percentage rises to 96 per cent if you include the 1800 postcards received as part of organized campaigns that expressly advocated retaining the HRA). Of people who answered the question on the relationship between the Convention and UK law, 98 per cent thought that the Convention rights should continue to be incorporated. The recent report of the British Academy Policy Centre is consistent with these views, and articulates them with clear force. Moreover, it is abundantly clear that there is no ‘ownership’ issue in Northern Ireland, Wales and Scotland (or, it would appear, across large parts of England), where the existing arrangements under the Human Rights Act and the European Convention on Human Rights are not merely tolerated but strongly supported.
In our view, the Commission as a whole gave insufficient weight to the totality of views received, and in particular those coming from the devolved nations. In Wales, for example, a Conservative member of the Welsh Assembly told us that ‘as a Tory I suppose I have to say that I’m in favour of a Bill of Rights, but actually the existing arrangements are broadly supported in Wales’. Another participant at a meeting in Cardiff told us that he would rather have matters of human rights decided by the European Court in Strasbourg than ‘a Supreme Court in London on which there is no Welsh member’. In Belfast, at a lunch seated between a representative of the Ulster Unionists and of Sinn Fein, it was made clear to us that a point of agreement between them was that it should be for Northern Ireland to sort out its own Bill of Rights. In Scotland, opposition to a UK Bill of Rights was widespread and existed across the political spectrum.
These were not minority or exotic views. Yet most members of the Commission took a distinctly London-centric view of the evidence, failing in our view to grasp the strength and depth of concerns expressed (particularly north of the border) about the timing of our endeavours. ‘We mustn’t let the tail wag the dog’ was a refrain from some when we raised these points, even as it became clear to us that the real tail in our work has been rooted firmly in central London.
Against the weight of evidence before us, the prime motivator for the majority in forging a new Bill of Rights is said to be a desire to enable the public to claim greater ‘ownership’ of their rights, and to counteract feelings of negativity towards the Human Rights Act. Where is the evidence for that? We saw little to show that hostility was as widespread as some would like to portray it. In fact the bulk of the evidence went the other way. Those who expressed opposition often repeated misinformation or insisted that they wanted to see greater emphasis on responsibilities, a path that can be followed without revisiting the current legislation.
This brings us to the third factor that causes us to take a different path from our colleagues in the majority: in the course of our deliberations it became evident that a number of them would like the United Kingdom to withdraw from the European Convention. While accepting that others in the majority would join with us in envisaging no circumstances in which they would support such a move, the unambiguous expression of such views offered openly in the course of our deliberations has made it clear to us that for some of our colleagues a UK Bill of Rights is a means towards withdrawal from the European Convention. We believe that such a path would be catastrophic for the United Kingdom, for Europe and for the protection of human rights around the world. The fact that a significant number in the majority could hold such views is deeply troubling.
We would have been partially reassured if we believed that our colleagues had adopted a path that stuck faithfully to the Commission’s clear terms of reference, which requires us to investigate a Bill of Rights that ‘incorporates and builds on all our obligations under the European Convention on Human Rights enshrined in British law’. In our view, the majority on the Commission has not stuck with the language as it is set out in our terms of reference, and this represents a clear departure that is not accidental. We fear that this is to satisfy those colleagues who oppose the continued incorporation of the Convention into UK law as a first step to withdrawal from the Convention. This opens up the possibility that their conclusions, however tentative, will be used to support efforts to decouple the United Kingdom from the European Convention. That is not a risk that we are willing to take or to be associated with, given the United Kingdom’s historical and continuing role in the life of the Convention and the promotion of the rule of law around the world.
We agree with the submission received from two well-placed observers – Sir Michael Wood and Elizabeth Wilmshurst – that ‘one of the great strengths of UK foreign policy is the United Kingdom’s reputation for its strong commitment to the rule of law in international affairs,’ including ‘its compliance with its international obligations and its reputation as an upholder of human rights, at home and abroad’. We agree too with the concern they express that the United Kingdom’s reputation ‘would suffer grave damage if the UK were to be seen to lessen its ability to comply with its international human rights obligations by repealing or taking action that would dilute the HRA’. These words offer a stark warning as to the consequences of the path that some of our colleagues appear to seek.
The content of a UK Bill of Rights
The Commission discussed the possible content of a UK Bill of Rights but was unable to reach agreement, or indeed even come close. Instead, it was agreed that various examples would be set out in annexes.
We find it difficult to imagine how agreement could be reached on the idea of a UK Bill of Rights, even in principle, when views are so polarised as to what such an instrument might contain. In our view, it would be preferable for form to follow substance, and for any move as to whether there should be a new UK Bill of Rights (or other options) to await a time when there is a reasonable degree of consensus as to what such a Bill might contain. In part, this is because any new Bill of Rights would have to attract broad support to achieve its objectives. It is readily apparent from the discussions within the Commission that no such consensus is in sight, assuming it could ever be attained at all. The full extent of the differences may be seen in the text prepared by one of our colleagues. This draft proposes, among other matters, that the rights that any individual might be able to enjoy will depend on which of three categories of human beings he or she falls into: (i) individuals who are citizens of the United Kingdom, who will on his model enjoy all rights, (ii) citizens of other EU member states who will enjoy only those rights to the extent provided by EU law, and (iii) everyone else, who will only be able to enjoy a limited set of unspecified rights (but presumably would not be tortured). In our view such an approach is deeply retrograde and inconsistent with a fundamental principle, namely that rights should be secured for all persons within the United Kingdom without discrimination. As one distinguished commentator has recently noted, it is ‘antithetical to the core idea of human rights that they should be particular to any specific jurisdiction or particular group of people, or that they should be unavailable to any jurisdiction or group of people.’ The whole point of human rights is that they are an expression of our common humanity.
Against this background, we consider that the case for a UK Bill of Rights has not been made, and that the arguments put to us against such a Bill remain far more persuasive, at least for now. We remain open to the idea of a UK Bill of Rights were we to be satisfied that it carried no risk of decoupling the UK from the Convention. We note that the majority has come together around a single principal argument to justify change: the public does not feel ownership of the Human Rights Act. We have already noted that the evidence before the Commission does not support the conclusion that there is an ‘ownership’ issue across the United Kingdom. Even if it did, we are not persuaded that a mere re-branding would address the underlying concerns of some of our colleagues. Rather, we fear that the issue of ‘ownership’ is being used to promote other aims, including the diminution of rights available to all people in our community, and a decoupling of the United Kingdom from the European Convention.
It is normal when sitting on a Commission to press for consensus, and to measure success by reference to the extent to which a text reflects agreement. In this regard, we do not wish to diminish our real appreciation for the way in which the Commission has been chaired, with absolute balance and fairness at all times, and for the substantial efforts and commitment of each of our colleagues. For agreement to be of any value, however, it must be real. We can all agree that the Commission was charged with carrying out important and valuable work, recording the history of the culture of rights within the UK, engaging in consultations and a work programme and summarising the arguments that have been put to us, and looking at arrangements in other jurisdictions.
That said, however, there are matters on which there has been no agreement, and we would have wished some key issues of disagreement to be covered in the main body of the report. 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.
Equally troubling, there is no discussion in the Overview or the main report of the relationship between a possible new UK Bill of Rights and the Human Rights Act (would the latter be replaced or supplemented?), or between a possible Bill and the European Convention (would individuals continue to be able to invoke the Convention’s rights before our courts? would the judges be able to have regard to the case-law of the European Court?). There are only generalised statements about the mechanisms that a Bill of Rights might adopt, which begs the question as to whether the change is really needed. 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.
Such omissions cause us to question the value of an agreement on the principle of a Bill of Rights that encompasses views characterised more sharply by points of difference than commonality. These gaps are, in our view, not accidental. They point to the insurmountable obstacles for the Commission as a whole, in the face of irreconcilable philosophical and political positions, not only between us and some in the majority but also, as we see it, between those in the majority. All members of the Commission could envisage circumstances in which a new Bill of Rights might come into existence at some point in the future, under the right conditions. A number of us are particularly concerned to ensure greater protections against the expansion of the powers of the state, as surveillance and claims to national security become ever more prevalent.
It became clear to us in the minority, however, that a bald statement of support for a Bill – even in principle – masked profound differences. In such circumstances, the notion of a consensus strikes us as being of limited, if any, utility. It offers a false impression and merely pushes into some distant point in the future the challenge of resolving profound differences.
In short, the faultlines among us are real and deep. They relate to the failure to grapple with the content of such a Bill and its purpose, the underlying desire by some to decouple the UK from the European Convention and the jurisprudence of its Court, and the inability to recognise that the days when Westminster could impose its will on these matters across the whole of the United Kingdom are long gone. We see no benefit in creating a superficial consensus. Far better, in our view, to be honest and realistic about the matters that divide, in a way that allows the report to contribute to the debate and decision-making that is yet to come.
It is better to recognise that at the heart of our differences are distinct beliefs about the reach and purpose of human rights, and about the relationship between matters local, national and international. A UK Bill of Rights may seem harmless and even attractive at first sight, but alarm bells should be ringing about motivations. For us, human rights is about working not just within our own country but with other countries to improve the human condition, to engender respect for all individuals, to protect those who are vulnerable, and to create the conditions for the delivery of justice and peace. To remove the glue that holds us together with other nations is dangerous. Our criticisms of the European Court should galvanise us to reform it, not lead to our cutting ourselves off. If there is to be a Bill of Rights, or any change to the Human Rights Act, it should reinforce the European Convention, not undermine it.