Category Archives: Lectures

Seminar: The Prospects for a British Bill of Rights, Sir Leigh Lewis, 24 January 2013, UCL’s Constitution Unit

UCL’s Constitution Unit hosted a seminar looking at the prospect for a British Bill of Right, which was given by Sir Leigh Lewis KCB. Sir Leigh was the chair of the controversial commission set up by the Prime Minister to look at the possible use for a British Bill of Rights. The report was published on 18 December 2012, and this is the first chance that Sir Leigh has had to reflect on it in public.

Background

After a quick straw poll in the room showing that most people had not read the summary of the report, Sir Leigh started with its background. The commission was set up as a response to the political impasse caused by human rights in the coalition formation discussions. It was already clear to most that the manifestos of the two parties clashed on this are, and so the formation of a commission is a tried and tested political response which buys the politicians some time before having to deal with the issue.

Sir Leigh was appointed the Chair, following his long service in the Department of Work and Pensions, and he was supported by eight other commissioners. Each party selected four commissioners, and often their views represented the views of the party they were selected by. The terms of reference that the committee worked under were ‘interesting’; it was apparent that the parties had negotiated them to a fine level of detail. The key words for the commissioners were as follows: The Commission will investigate 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 extend our liberties. This was taken by all the commissioners to mean that any resulting Bill would supplement the existing European Convention in UK law, even though it was noted by a small minority that they wished it were not so.

While the commission was working, the external environment put greater pressures on the work they were doing. As examples, the Hirst judgment on prisoner voting had returned to the fore, and the deportation cases of Abu Hamza and Abu Quatada had exacerbated the polarisation of the views that were already deeply held by many.

Methods

The commission decided that transparency was key in their work, so all the papers and minutes were published. The commission met 19 times, and engaged in different types of outreach work. This includes open consultations for the public, a large by-invitation seminar in Birmingham, receipt of submissions from key groups, and discussions with the devolved administrations. All the responses were read and summarised by the secretariat, and about half were read the commissioners.

The commission decided not to hold Leveson-style hearing for pragmatic reasons, such as time allowed and costs, and also they felt that it did not suit the nature of the task. Similar to this, the commission did not commission their own polling; although deliberative polling was considered, finding the correct questions to ask would prove too difficult, and the commission wanted no skew at all.

Recommendations

They released 24 recommendations, 17 of which were agreed by all commissioners. The key one, that a United Kingdom Bill of Rights should be established so long as it incorporated the EUROPEAN CONVENTION ON HUMAN RIGHTS fully, was only agreed by seven of the nine commissioners. The two who disagreed, Baroness Helena Kennedy QC and Professor Philippe Sands QC believed that this level of detail was not necessary, as the failure of the EUROPEAN CONVENTION ON HUMAN RIGHTS, European Court of Human Rights and HUMAN RIGHTS ACT had not been fully explored by the commission.

One thing that was agreed by all was that they thought it key to provide steers as to what any such Bill should contain. A question that arose out of this was whether the Bill should contain other additional rights. This was not opposed in principle; the Convention if drafted today would be a very different document to the one drafted 50 years ago. Various rights were proposed, including equality rights, and children’s rights. Some members also thought that enshrining the right to a form of administrative justice should also be enshrined in the Bill if it was ever drafted. When considering socio-economic and environmental rights, it was decided that they would not be suitable for such a Bill, as most felt that overall that these rights required the making of choices and decisions that were best left to the elected politicians, not the courts.

Mechanisms

The commission also considered the mechanisms with any Bill should operate on broadly similar principles to those in the HUMAN RIGHTS ACT. This included a mechanism for a declaration of incompatibility such as that found in the HUMAN RIGHTS ACT. The commission found the formula in the HUMAN RIGHTS ACT to be a subtle balance between the elected legislature and the judiciary, and saw no reason to change that.

Responsibilities

The commission also considered whether any such Bill should include a concept of responsibilities. This was suggested in light of the green papers released under the previous Labour government, and the discussions at the Birmingham seminar showed support for this. The commission concluded that it was not desirable to make rights conditional upon the exercise of responsibilities; this denied the inherent universality of rights. Instead, it was suggested that some form of declaratory non-justiciable statement could be made to encourage those covered by the Bill to support the ties of respect and responsibility that bind society.

Devolution and Europe

As noted above, the devolved administrations were also considered in the process. The devolved governments of Scotland and Wales understandably felt that the matter was for them to decide in their own area, and said that their populations were much less concerned anyway. However, Sir Leigh said that the polling, with the above caveat in mind, showed that the reactions of the people in these countries were much in line with England on the matter. The Northern Ireland question was much more complicated, and there was not time to discuss it in the seminar. However, it was clear that any future debate must be sensitive to the devolution or independence of the countries in the United Kingdom.

The commission was also ask to consider and review the European Court of Human Rights as part of a wider constitutional review. This was prior to the UK’s assumption of the chairmanship of the Council of Europe. One matter that stuck out was the backlog of cases, which has only modestly dropped since it became a public concern. The commission recommended a significant reduction in the number of cases that was sent to the court, and that these were limited to serious cases where interpretation of the Convention was required. There were also questions about the remedies the court could offer, and suggested reform of the judicial appointment process. However, this was only ever to be interim advice and was left at these points.

Reactions

Following publication, the reactions were overwhelmingly those of disapproval. The Telegraph’s response was the only positive plaudit from the Press, and Sir Leigh read out some of the less flattering ones, including a comment from Ben Emmerson QC, who said the commission was kin to the editors of the Daily Mail and the Sun sitting down together to write the constitution. Sir Leigh’s own view reflected that of the commission’s values: that there needs to be respect for different viewpoints and that any debate must be well-informed. He said that the argument that better education would solve the problem of public ownership of human rights was too simplistic, but there is a nugget of truth to the matter. Sir Leigh borrowed the words of Lord Lester QC, who noted that in Europe we are rare as a country to not view human rights as part of our constitutional rights, and human rights cases as matter decided by our laws, but rather in line purely with the Convention. Rather, we feel a sense of alienation about the whole concept. This issue of public ownership is why the seven of nine commissioners suggested the adoption of a Bill of Rights for the United Kingdom.

The seminar was followed up by a Q&A session done under Chatham House rules.

Thoughts

One thing was clear after that seminar: Sir Leigh was very proud of the commission’s thoroughness, and was not disheartened by the lack of approval. He admitted that he knew it would always have been a difficult and mostly thankless task. What was most interesting about the seminar was the impact of the human rights arguments within the devolved administrations. While the coalition was busy forming the government in Westminster and having discussions about human rights, they had not considered what the other administrations within the United Kingdom may feel about the issue. Welsh politicians have renewed calls for a separate legal jurisdiction to England, and the Scottish independence referendum has the chance to change the political structure of the United Kingdom in a big way. With these two issues and the increasingly loud rhetoric on both sides of the debate, it is not surprising that the commission did not achieve as much as it had hoped. Its lasting contribution may well be to provide a snapshot of the human rights agenda at this point in time, so that any debate to be had will be, as the commission suggests, well-informed.

 

Other UCL Constitution Unit seminars can be found here.

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Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons

On 5 July 2012, the Chief Justice of Australia, Ron French, gave a lecture in the very opulent Australia House on the differences and similarities between human rights protection in Australia and the United Kingdom. It was chaired by the Lord Chief Justice of England and Wales, Lord Judge.

French started his lecture by pointing out the most important difference between the two jurisdictions: Australia has a written constitution, and the United Kingdom does not. He also pointed out that Australia has no bill or charter of rights unlike the Human Rights Act 1998 in the United Kingdom, with him joking that the phrase “she’ll be right, mate” was a pithy way of describing the popular views of how human rights work. However, one of the great similarities and strengths of the two countries is the principle of legality based upon the common law and parliamentary sovereignty. There have been criticisms of Australia as a western democracy for a perceived failure to protect rights adequately, but French argues that there is protection present.

In September 2009, a committee on human rights reported to the Attorney-General of the Commonwealth of Australia on which rights should be better protected and how Australia can achieve that. One option was a statutory charter similar to the Human Rights Act 1998, but there was a concern that such a charter would remove the power and burden from the parliamentarians and place it on the judiciary. Instead, it was decided that education was the key way that rights should be protected, and other existing statutes could be altered to give the judiciary a power to interpret legislation in line with these rights similar to the power under s 3 HRA.

The committee suggested a common law Human Rights Act based upon the HRA in the United Kingdom and its dialogue model, but the Attorney-General said it could be divisive. Instead a human rights framework was created to promote education and to pass an Act of Parliament to form a joint committee on human rights to ensure that Australia complied with seven core human rights treaties. As an example of how this would work, in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, Teoh claimed that due to his children the Minister should have considered the impact of the Convention on the Rights of the Child (which Australia has ratified) when considering his deportation. That case held that it was correct for Teoh to have a legitimate expectation to be protected by an international treaty that Australia signed, though it was possible for the Minister to depart from his obligations under it.

It was decided that every new Bill was to be accompanied by a human rights statements, and the core treaties were:

  • the International Covenant on Civil and Political Rights;
  • the International Covenant on Economic, Social and Cultural Rights;
  • the Convention on the Elimination of All Forms of Racial Discrimination;
  • the Convention on the Elimination of All Forms of Discrimination Against Women;
  • the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment;
  • the Convention on the Rights of the Child; and
  • the Convention on the Rights of Persons with Disabilities.

There was also public discussion of putting discrimination law under common law and statute into one statute, as there are many that operate at both state and federal level. However, it was decided that this was unnecessary as s 109 of the Constitution can be used to prevent their operation under commonwealth law. In Mabo and Other v State of Queensland (1992) 175 CLR 1, a statute extinguishing the claim of Aboriginal groups to land was held to be inoperative under s 109 for grounds of discrimination. A further case where limiting fertility treatment in Victoria to married women only was also rendered inoperative.

Most territories have their own discrimination laws, some even in charter form. However, the Australian Constitution has no bill of rights to enshrine these laws, but it does contain protection for them. To find them, we need to look at the broader context, and the evolution of Australia as a country.

All the states acted as independent territories with their own supreme courts, but decided to federate in the 1890s, which required a draft constitution, as the colonies were given authority by imperial statute. The-then Chief Justice of Tasmania turned to the US Constitution as an example. Some representatives were not keen on the provisions in this, as for them some forms of discrimination were desired. However, the rights to trial by jury, free exercise of religion and the protection of a state’s residents from other states on the basis of their residence form part of the Constitution. There are other rights expressed within the document, as well as those more subtle.

Chapter 1of the Constitution sets up the law making power for the Commonwealth and the following chapter created the executive. Chapter 3 set up the judiciary: the High Court of Australia, federal courts, and the power to delegate federal authority to other courts, namely the supreme courts for each state. The High Court however remains the final appellate court for all. The Constitution contains a clear separation of powers, which is not found at state level. However, the independence of the supreme courts is now guaranteed and entrenched as a result of the Constitution.

Other express rights include as the prevention of civil conscription, the acquisition of property of just terms, and the power for the High Court to review the actions of an officer of the Commonwealth, an expansion to the right to trial by jury which requires a unanimous decision of a jury for conviction of a Commonwealth offence, and free movement and trade between states. A restraint of the practice of legal professionals between various states has also been removed.

In this way, the rights may be seen as legal and procedural guarantees as well as rights similar to those in our HRA. This also include the Kable doctrine, which prevents state courts from acting in a way that is repugnant to federal courts. This can also prevent the state judiciary from being bound by state legislation, such as the restrictions placed on a Magistrates Court to follow prescriptive legislative powers. The supreme courts cannot be deprived of their supervisory jurisdiction of the executive under the constitution and case law.

Other rights that have emerged from case law include the right of Australian prisoners to vote, to change election registration details after an election is called, and an implied freedom of political communication. The judiciary have also been known to take more direct action, as a book on shoplifting was denied a classification and therefore could not be published; however, while the appeal was dismissed, the judge as part of his reasoning attached the entire book to his judgment.

French noted that the United Kingdom does not have such cases, but our common law rights have the same constitutional power. The principle of legality ensures that construction of the law must follow the least infringing meaning. These rights and principles have their own importance and weight which is free from interference in statute. Australian examples include a provision against annoying Catholic pilgrims during World Youth Day as part of a papal visit could not be construed to prohibit all activity, and the reverse onus of the legal burden of proof falling on someone in possession of drugs could not be used to support the legal burden and evidential burden of trafficking offences.

French’s final point was this: the roles of the courts and the Constitution is key but is based upon the people working in their framework. However good a constitution is, it won’t work properly if there are bad people working in it, but however bad a constitution is, it will work if there are good people working in it.

The talk was hosted by the Anglo-Australian Lawyers Society and the Constitutional and Administrative Bar Association.

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