"Human Rights and Constitutional Reform", London 2004
Lord Falconer of Thoroton (Labour)
Thank you Peter, and Charles [Bourne - Chairman of the HRLA] for inviting me to address you this evening. I was interested to see my "decision" on QCs in the Daily Telegraph - I thought I hadn't announced it! Ignore it!
[Just around the corner, I gather, Shami Chakrabati is standing up to speak on much the same subject. John Major once famously said "We have no need of human rights because we have Liberty". Liberty replied that we need both. I agree. Let's take tonight as evidence of some success!]
I know that this event follows the Law Society's joint project of seminars on the Human Rights Act. I am very happy to be associated with that. I also welcome the opportunity to offer some overview this evening about human rights and constitutional reform. I want to set the Human Rights Act in its proper context and I want to set constitutional reform in its proper context and that is - reform for a purpose.
Three purposes, actually:
• the first is to enhance the credibility and effectiveness of our public institutions
• second, it is to strengthen our democracy and public engagement with decision-making
• and third to increase trust and accountability in public bodies.
I know that you want me to talk about some of the difficult human rights issues facing government - and facing many of you in your professional capacities - asylum cases, terrorist detentions, civil contingencies and the rest and I will have something to say about those things towards the end of my speech. But first I need to explain where as a matter of principle we are coming from and why.
The Human Rights Culture and Social Policy
It can't be said often enough. We didn't bring in the Human Rights Act to get a litigation culture. We brought it in to get a human rights culture.
It's a much-used phrase, and I'll talk about what it means - and doesn't mean - in a moment. The prior question is why do we want a human rights culture?
You can't answer this question from a narrow legal perspective. It's actually a question about social policy, like most of the issues my department deals with. We want a human rights culture because we want to make a better country for people to live in:
• reconnecting people and politics
• improving our public services
• getting more respect into society, one for another's basic human dignity
• promoting basic values we can all share, that will help bind us together as a nation.
A human rights culture is going to help us do all of those things. So its a key part of the Government's wider programme of reforms. Real reforms. Reforms with a purpose. Reforms above all to make a difference to the citizen.
Limits of Litigation
I said we didn't want a litigation culture. Let me be clear. We are not saying that litigation hasn't got a part to play in a culture of respect for human rights. First and foremost, we need litigation to assure compliance. We also need litigation to challenge ways of thinking. Things sometimes need to be looked at in a new light. And we brought in the Human Rights Act to help by giving people here the right to seek a remedy from the courts for breaches of their Convention rights.
Assuring compliance is central. It is the fairness guarantee the public need and want in order for their confidence and trust in our public services. And you can't get very far in building a culture of respect for human rights without the ability to go to law. But two points about that fairness guarantee. First, it's not needed that often. As we always said, by and large, this country does comply with fundamental human rights. Like many constitutional rights provisions, the Act is rather like the promise of compensation reputable manufacturers feel able to offer to consumers. If you find any faults of this kind in our products please tell us, we want to know, to put it right and to make it up to you. But, actually, we don't expect to make mistakes of that kind. We have systems in place to make sure of that - and to ensure that your points can be heard by an appropriate independent authority.
Guarantees like that do help create confidence, even if they do not need to be taken up very much. Very broadly, I think that has been borne out over the first three and half years of the Act's operation.
There have been successful challenges. Yes, some laws have been changed as a result. There will be more I am quite sure. We should all be mature enough to look again when the courts conclude that there is a real problem.
That is precisely what has been going on - we can thank the Human Rights Act for the Diane Blood case and rights for deceased fathers; for Bellinger and Bellinger and better recognition of gender; R v McR concerning Criminal Justice in Northern Ireland; and R (on the application of FM) v SofS for Health) for a fresh look at appointing nearest relatives under the Mental Health Act. These are just some examples of when the HRA in court has lead to changes in the law.
But, objectively, serious problems have been rare indeed -only ten incompatibilities found in our products in the first three years or so.
And the courts have exercised a considerable measure of judicial discretion in favour of the democratic authorities, when reviewing the judgements that Governments have made about proportionality and balancing rights.
The first conclusion we can draw from this is that human rights litigation is not, and was never really going to be, the major determinant of the human rights culture. There just aren't enough violations. Sure, the need for compliance is relevant. The Act is more than salutary in that respect - you have only to look at the human rights duty on all public authorities in section 6. But Lord Hoffman was right (New Law Journal 18 May 2001, 713): though the Human Rights Act culture is certainly about the rule of law, it isn't about the rule of lawyers.
I said I had two points to make about the fairness guarantee. The second issue concerns what it implies for standards. Are the rights it guarantees to be regarded as a floor or a ceiling? The simple point here is that the fairness guarantee addresses bare legal compliance with the fundamental human rights in the ECHR. Right to life, freedom from torture, slavery and the rest. As everyone in this room knows these rights are relevant to a host of everyday issues in our public services. But the standards and thresholds they set, though capable of moving with the times, are actually pretty basic. Of course it should be a matter for great concern if we fail to comply. But heavy intervention by the courts shouldn't be needed to deliver that compliance. And - this is the key point - bare compliance with the basic Convention rights isn't going to get us very far towards achieving the social policy objectives I mentioned earlier: public services that are fair for all and personal to you, values we can all share, and practical respect for each other's dignity.
So bare compliance isn't enough. Nor is a statutory obligation on our public services not to violate basic rights. We need a change in culture. We need people to see human rights as the standard our public services should measure up against.
The type of culture we need was very well defined by the Parliamentary Joint Human Rights Committee. They said this: "A culture of respect for human rights would exist when there was a widely-shared sense of:
• entitlement to these rights, of
• personal responsibility and of respect for the rights of others and when this
• influenced all our institutional policies and practices." (page 12, para 9 of Vol. 1 of the Report )
This is about much more than legal cases. It is about the whole apparatus of how the State and public authorities operate.
I am clear that we cannot bring culture change through litigation alone. For the reasons I have already given. And because it is simply not the job of the Strasbourg or our courts. They are impartial because they set the irreducible standard. But we cannot expect the courts to take responsibility for training public authorities and for general awareness raising in society. We cannot expect them to issue detailed guidance on good practice to public service delivery managers. Or to assume a corporate leadership role in driving up public service standards. These are all tasks for the executive itself and public authorities.
And here we come to the other big question arising from the first three and a half years of the Human Rights Act: how far have public authorities got with this culture building? Is some other stimulus needed?
The Commission for Equality and Human Rights
We gave the Government's answer to that last October when we announced that we had accepted the principal recommendation in the JCHR's Sixth Report, to create a Commission for Equalities and Human Rights.
We took the decision to create the Commission because we agreed with the main finding of the JCHR. Our public authorities have some way to go in the quest to build a human rights culture in this country. They need serious help with this. Neither the Government nor the courts are best placed to provide it.
The new Commission will take over the role of the three existing equality Commissions, and will make provision for the three ‘new' equality strands: religion and belief, and sexual orientation, which now have legal protection too; and for age, which will see the new law coming into force in 2006.
But beyond equality, the new Commission will have particular responsibility for taking forward the agenda that underpins the Human Rights Act. This means that it will have responsibility for helping to deliver the step change in public services I have been talking about.
It shouldn't come as a surprise in view of what I have been saying to hear that our priority function for the new body is proactive engagement, promoting good practice and awareness.
We do not propose powers to bring free-standing human rights cases - as exist for example in relation to race, sex and disability discrimination. We are satisfied, broadly, that the existing arrangements to support public access to justice under the Human Right Act are sufficient.
I know that some of you may not like to hear me say it, but we don't agree that there is a real gap in the human rights litigation market. Or, if there is, that this Commission is the way to fill it. We do not wish the new Commission to become overwhelmed by individual complaints about anything and everything, as has happened in some countries. And, as I have said, we believe that the promotional human rights remit for the Commission should not require such powers.
I know that as lawyers you will see a whole raft of subsidiary questions about the commission and litigation - third party interventions, the so called "victim test" in the Human Rights Act, the possibility of ADR, the question of cases combining equality and human rights points and so on. Our minds are not closed on these issues and we will be talking the options through with a special Task Force of key interests we have established to help design the new body. But we will be guided by our firm view that the emphasis must be on promotion, good practice and awareness raising.
We intend to publish a White Paper in the Spring. Watch that space. And if you want to know where that space can be found, you can log straight onto it at the DTI website, where the Task Force papers are all available on line and I would strongly urge you to do that.
So the new body's human rights role, in relation to access to justice, will be complementary. That was the word used by Mary Robinson to describe the effect of the UN's guidance in relation to the legal role of national human rights commissions. She said, and I quote, "I think that the approach has to be more to complement access to justice in the courts" (The Case for a Human Rights Commission: Interim Report, para. 75, Ev13, 22nd Report of Session 2001-02). We agree with her.
Culture building role for lawyers
Have I talked us all out of a job? Clearly not because, without lawyers, we cannot make compliance work as it needs to. And compliance is a key foundation of the culture. But I believe that there is another perhaps more difficult role for the legal profession in helping to build the human rights culture we all want to see.
I am talking about the need to help non-lawyers - the public, politicians, decision makers and administrators everywhere, to get a better understanding of what "human rights" is really all about. We are never going to get near a true human rights culture when most of the population believes that "human rights" is a technicality, belonging to the lawyers.
We have got to get people to understand that this isn't about lawyers. It is about everyone, because everyone is a human being and entitled to dignity. You all know it - the big human rights questions do not turn on legal technicalities: they turn on views about what is necessary in a democratic society, and if some public authority is trying to use a sledgehammer to crack a nut. Not uncommonly they are about balancing one person's right against another's.
People need to appreciate that human rights questions often don't have a "right" answer in the technical sense. The whole of society can and should engage in the debate.
How do we get this across? Obviously it will help if the human rights arguments emerge in the public debate of this country. If politicians and commentators aren't doing it as much as they perhaps should (and even if they are) lawyers can nonetheless help. That's why I for one welcome the fact that people present tonight have been doing their level best over the past months and weeks to inform the public debate in human rights terms.
But are we succeeding in doing this in language that is intelligible and compelling for non-lawyers? And how far does the way the language invite the riposte "you would say that wouldn't you"? And even if it doesn't, can people see any relevance in what is being said to their everyday lives? The message is that Human Rights is almost invariably about balancing one person's interest against either another's or the public as a whole. And its about doing it in such a way that it is based on fairness and principle. Not about who is the strongest. It brings a fair balance into play where previously it might have just been about the strongest interest group.
Can we look at some of the issues I mentioned at the outset? I begin with the essential but so often forgotten preface that the Convention rights are, with few exceptions, not absolute. We usually have to consider the public interest in some form, as well as the rights and freedoms of others. Government has the duty to strike those balances and make the tough choices needed to do so, on the evidence. This is not Utopia and we cannot duck our responsibilities. Lives may be at stake. Lives are at stake.
And the safety of the people is the first concern of any Government. It must balance that against individual's rights. We are threatened by terrorist groups whose methods are ruthless, whose means are devastating, and who give no warning. Yes, terrorists have rights, but so do the rest of us. Some rights can be limited or derogated from when the circumstances demand it. We judged - after a careful study of the facts - that the situation, post 9/11 constituted an emergency justifying special measures under the ECHR.
I say "under the ECHR" because some of the language used forgets that the right to derogate is in the ECHR, subject to the conditions set out there. Derogation is not "the end of the rule of law": it is within and under the rule of law. It is because of the rule of law.
Of course derogation from any ECHR provision is a very serious step. But it is wrong to portray our 2001 Terrorism Act as akin to internment during the Second World War. 27,000 people were detained without trial in this country during the Second World War. Under the 2001 Act provisions a total of 16 people have been certified as suspected international terrorists. Of those, two have left the UK of their own volition, as our provisions allow. The others remain in detention. All have exercised their rights of appeal.
As you know, the Court of Appeal upheld the lawfulness of the scheme established by the Act. Lord Carlile's report confirmed that the Home Secretary's use of the Act has been proportionate. Beyond that I will not say more about the detentions, as there are individual appeals proceeding.
The decision to derogate isn't a one-off judgement. The security situation is under continuous review, by the Joint Terrorism Analysis Centre. Nor is the implementation forever. There is a sunset provision in the Act, and that is under review.
Even more to the point, the Home Secretary has promised an options paper on what this country should do for the longer-term. He wants to see - and so do I - a full and public debate on the issues and how they can best be tackled. Here is a golden opportunity to raise awareness of what human rights really means. Not some legal icing on the cake, to be quarrelled over by the few, but the cake itself. I hope that we will see a constructive and meaningful engagement as we saw over the Civil Contingencies Bill, and are seeing in relation to the Asylum Bill, both of which I will turn to in a moment.
My position on terrorism is simple: there are no options we should refuse to consider, but it must be within the framework of the rule of law and our international human rights obligations. I hope that is your position too. We need to be imaginative and flexible, looking at the problems, the facts, and the needs of our democratic society. I am not prejudging the outcome of this debate, nor any of the others we need to have about tackling terrorism. But, please, let's look at the real issues and the principles underlying all this. Lets have a Human Rights debate, but in ordinary language the public can understand - and about issues that matter to them.
The human rights story of the Civil Contingencies Bill is worth mentioning in this general context. It is, I think, fairly well known to people here. But not as well known as it ought to be generally. The point is that significant alterations and amendments were made as a result of consultation with human rights organisations, notably Liberty and Justice. To give two examples, the Bill now contains a provision on its face putting it beyond doubt that any emergency regulations must be proportionate - and provision made requiring the Minister in charge to give the House his view about how the regulations fit with basic human rights.
This isn't demanded by the Human Rights Act - it goes beyond what is needed there. Nor does it elevate the status of the emergency regulations: they are secondary legislation, and subject to the courts.
These changes show, I believe, what can be achieved by constructive engagement. Looking constructively and flexibly at problems. Looking constructively and flexibly at solutions. And looking constructively and flexibly at safeguards. It is I believe a two way street.
The Asylum Bill has been more controversial I know. But we need to remind ourselves of the problem it is seeking to tackle.
We must state and restate our commitment to provide asylum for those who have a well-founded fear of persecution in the place from which they have fled. We must also recognise as we do that many people who are fleeing persecution will do so in circumstances that they are unable readily to provide the detailed evidence of their claim which the immigration authorities or appellate authorities will be looking for. We know all too well the effect for example that systematic sexual abuse and torture, or fear may have on the ability of applicants to tell the facts. Very many of those working in the field, particularly lawyers have a clear understanding of this and provide a service which unquestionably prevents great wrongs being done.
But that there are abuses of the system is also beyond argument. This Bill deals with abuse of the system. Abuse by those who come here claiming to be asylum seekers, but who aren't. Abuse of multiple layers of appeal and judicial review, and which do not enable an effective process of determination. And abuse of the tax-payer. Last and not least, an abuse of the system as it impacts on genuine applicants.
I think all can agree that any country is entitled to manage its immigration but it is clear that some aspects of the Bill have caused disquiet. I will not deal with them all - this is not a substitute for Parliamentary debate - but I do want to say something tonight about human rights and the so-called judicial Review ouster, restricting routes of appeal and review.
The ECHR does not say that there must be multiple levels of appeal or review. The debate needs to acknowledge that. What is required, is access to an independent authority with powers to provide effective redress.
That we are providing. The single tier of appeal will be an independent judicial tribunal. It will look judicially at the determination of the Home Office, which makes the administrative decision at the outset. If the applicant believes the Tribunal of the Single Tier has erred in law so that the decision is wrong then he or she can ask the Tribunal to review its decision. That review will be conducted by a different judge within the Tribunal. We will also introduce an additional safeguard by making provision for the President of the Tribunal to refer points of law to the Court of Appeal.
So what we have is an independent Tribunal with expert immigration and asylum judges organising themselves so that decisions are right first time - thus obviating the need for further challenge. Though there is an opportunity to review the decisions of the independent tribunal.
Judicial Review is ousted for many but by no means all decisions. We will keep JR for habeas corpus challenges. And we will keep it for cases where IND does not allow a person who has exhausted their appeal rights to make a further claim, because they have not produced new grounds for doing so.
The system ensures independence, experience, scrutiny. To include Judicial Review in relation to that aspect of it introduces 3 further stages. Is this necessary to ensure justice? I think not.
As a result the new system will be faster - still delivering a fair and just decision - but within 18 weeks rather than the 65 weeks plus that it can take now. Those fleeing persecution will know much earlier that their claim has been allowed, that they can put the past behind them and start to rebuild their life in the UK. And for those seeking to exploit the system we will have minimised the burden and reduced the numbers it involves.
In conclusion my general point is that Government is approaching these issues in the light of, and not in spite of, our commitment to human rights. And ours it is a genuine commitment, legislated upon and double-underlined in our recent decision to establish a Commission for Equality and Human Rights. Inevitably there will be differences of view over whether we have got it right. We want to hear those views and are ready to take account of them. But what this country needs to hear is a debate expressed in a way that shows that human rights is a language of common sense and public interest. That anyone can speak that language. And that it is in everyone's interest to try. And that, in my book, is the way to build a human rights culture in this country.