Bill of rights under fire
Two recent reports on human rights are “almost like ships that pass in the night”, a former justice of the Supreme Court said yesterday. Lord Carnwath of Notting Hill was referring to the government’s consultation paper on reforming the Human Rights Act 1998 and the report of the independent Human Rights Act review chaired by Sir Peter Gross. Both were published on 14 December.
In an online lecture to the faculty of law at the University of Cambridge, where he is a Yorke distinguished visiting fellow, Carnwath said was “wholly unpersuaded” by the government’s proposed bill of rights.
Earlier yesterday, he gave oral evidence to the Commons justice committee.
Carnwath pointed out in his lecture that the Gross panel had not been asked to consider the possibility of a bill of rights. “Nor were they asked to consider the problems said by the consultation paper to be created by the extensive interpretation of the [human rights] convention by the Strasbourg court, which are central to the justification for the [government’s] proposals.”
This was very frustrating, he explained to MPs. It would have been much better if the expert panel chaired by Gross had been asked to consider what the government was now proposing.
Why had there been what Carnwath described in his lecture as “a serious mismatch between the two exercises”? He suggested to MPs that the consultation paper issued by Dominic Raab, the justice secretary, was drafted before Gross had reported:
I’m not sure when the draft was produced but I have a feeling it was probably produced a year or two ago — because it clearly wasn’t produced in the month or so which followed the submission of Sir Peter Gross’s report.
The former judge did not elaborate. But it’s known that Raab commissioned a paper on human rights reform after he joined the Ministry of Justice as a junior minister in 2015. That paper never saw the light of day.
Gross was asked to consider the issues afresh by Raab’s predecessor as justice secretary, Sir Robert Buckland. Then Buckland was sacked and Raab replaced him. In Carnwath’s words, “this change at the top seems to have resulted in a marked shift of direction.”
As I reported last week, Gross does not regard Raab’s paper as a response to his report. His review had made a significant number of recommendations that were simply not addressed by the government, he told the justice committee. “Those are quite significant.”
That criticism was rejected by the justice minister, Lord Wolfson of Tredegar QC, who said the government had considered everything the Gross panel had said.
Carnwath took issue with Raab’s suggested legislation. This might say that “the courts are not required to follow or apply any judgment or decision of the European Court of Human Rights”.
The former justice found it impossible to understand how replacing section 2 of the Human Rights Act in this way would advance the government’s stated objectives, still less provide “greater legal certainty”:
Section 2, as it stands, simply requires the court to take account of judgments of the Strasbourg court. The domestic courts have interpreted that it a practical way, so that we will normally follow a clear and constant line of decisions, provided that its effect is “not inconsistent with some fundamental substantive or procedural aspect of our law”, and its reasoning “does not appear to overlook or misunderstand some argument or point of principle”.
That approach seems to me an entirely logical reflection of the status of the Strasbourg court as the final arbiter of the meaning of the convention, to which the act gives effect, while recognising both that not all its decisions have the same weight and also the margin of appreciation allowed to the member states.
So long as we remain parties to the convention and subject to the Strasbourg court, as is intended under the current proposals, the same logic must surely apply.
The proposed replacement of section 2 would require the courts to set aside case-law developed over the years and start again, Carnwath said:
I confess that, as a judge trying to interpret the will of parliament, I would come close to despair. Nor can I see how offering that degree of choice to the courts is expected to curb the judicial activism of which the paper complains, still less to advance the stated objective of promoting greater certainty. That particular proposal must surely not be allowed to get off the ground.
In his lecture yesterday, Carnwath said his own experience of the European convention and the Human Rights Act had been generally positive:
On the whole, I regard the convention and the Strasbourg court as a success story. I find it a matter of pride that it was originally a British-led project, initiated at a time when the recognition of any sort of human rights across much of Europe was at best a distant dream. That system is now embedded in the law of 47 countries, supervised by a central court in which all participate. I am afraid I have to disagree with my former colleague, Lord Sumption, who has described the aspiration of spreading human rights in this way as “a noble but unrealistic ambition”…
That bleak view is not, I think, borne out by the Council of Europe’s own review of the impact of the convention in the 47 member states. But in any event it looks only at the extremes. It says nothing about the enormous contribution which has been made to the development and application of human rights over the continent as a whole. The basic rights recognised by the convention should be common to all…
The challenge is how to take this forward. The task must be undertaken in conjunction with the UK courts and tribunals, who have most experience of operating the convention in practice, but also in co-operation with our political and judicial colleagues in Europe.
It is a great pity that this question was not put to the Gross panel, whose combined experience would have been well fitted to the task. The Law Commission might be asked to help on the scope for legislative intervention.
Whatever the answer, I am wholly unpersuaded that the establishment of a new UK bill of rights, to be administered by the UK courts but parallel to the still-binding convention administered by the Strasbourg court, is going to assist the process.
A proposal to replace, in substantially the same language, a code which has been part of our law for more than 20 years required strong justification, Carnwath said. Either it meant the same thing — in which case what was the point? Or it did not, in which case we could expect a long learning process through the courts to find out what it did mean.
The challenge for those promoting a new bill of rights was not just to point to problems with the existing case-law, he concluded, but also to show why matters would improved by recasting the same rights in a new bill.
Raab’s consultation remains open until 8 March.