Holding back the state

“Few subjects generate more strongly held views than that of human rights.” Thus begins the overview of the subject by the report of the Commission on a Bill of Rights, published just before Christmas.

As is well known, the Commission was born of the radically different approaches of the coalition parties to human rights; and its membership, four appointments by each party leader under an independent chairman, reflected these divisions. Critics were therefore quick to write off the report as of limited value. But one member of the Commission at least is not content that its work should be so readily brushed aside. Quite the reverse, and his views on the reasons why there is “a strong argument in favour of a UK Bill of Rights” – the conclusion of seven of the nine members – could make uncomfortable reading for Governments both in London and Edinburgh.

Sir David Edward, Queen’s Counsel, Emeritus Professor, former judge of the Court of Justice of the European Communities, among a string of distinctions, would add gravitas to any inquiry body. One of the nominees of Deputy Prime Minister Nick Clegg, and a firm supporter of the European Convention and the Human Rights Act, he nevertheless found sufficient common ground with the Conservative-appointed, and in some cases notably Convention-sceptical, members to sign the majority report. (The majority included also the neutral chairman and Lord Lester QC.)

Under terms of reference that directed the Commission to build on the UK’s obligations under the European Convention on Human Rights, the majority’s main recommendation was in favour of a UK Bill of Rights, founded on the rights currently within the ECHR, but expressed in language reflecting the heritage of the UK jurisdictions. This, they believe, would redress the lack of “ownership” by the public which is “the most powerful argument in favour of a new constitutional instrument”.

Points of substance

The report has been stigmatised as a “damp squib”, and criticised by some human rights defenders (including the two dissenting members) as likely to lead to a “decoupling” of the UK from the ECHR.

Sir David is equally dismissive of the “damp squib” commentators. “I think some of what was published immediately after the report came out was as predictable on the day it came out as it was predictable on the day the Commission was set up,” he ripostes. While fully accepting the fundamental differences within the Commission, he adds: “Some commentators and newspapers immediately after the report was published, before they could conceivably have read it, said what I could have predicted at the very beginning they were going to say. I say it simply isn’t fair, if you read the report, to call it a damp squib. There is an enormous amount of hard work has gone into it.”

Nor does he accept the comment by the dissenting minority – Baroness Helena Kennedy QC and Professor Philippe Sands QC – that the “ownership” issue is the “single principal argument to justify change” (report, p 228). “As the report records,” he responds, “‘an important further reason, and for some [members] a particularly compelling reason’ – that was me in particular – ‘is that it would offer the opportunity to provide greater protection against the possible abuse of power by the state or its agents… they believe that the experience to date of the Human Rights Act is that a statute expressly protecting basic rights and freedoms can provide a valuable safeguard against any such abuse of power’. So it’s simply not true to say we didn’t consider that.”

But the ownership point itself should not be lightly dismissed, in Sir David’s view. “If we look at Norway, for example, it is fully signed up to the Convention, it is part of Norwegian law, but the Norwegians believed it necessary to amend their constitution so as to state the fundamental rights and freedoms in language more in tune with Norwegian modes of thought, traditions etc. This is a highly complex question, and to start criticising the report as a damp squib manifestly shows that the people who say these sort of things simply haven’t bothered to read it.”

Layered rights

A principal objection by many defenders of human rights is that a UK Bill would be used to “decouple” the UK from the ECHR. Does Sir David acknowledge the risk? “My answer is yes, of course, you can use it to decouple. That doesn’t alter the fact that in my view, actually it is quite urgent to have a clearer statement of rights. I believe, or rather I’m appalled by the way in which currently, Governments of all political colours, and including the Government of Scotland, simply seem not to realise the time- honoured guarantees of due process which form part of our heritage – they simply regard them as dispensable. Now I think it’s urgent to say these are not dispensable, they are fundamental, and as much as I object to the idea of secret courts as promoted by the UK Government, I find it just as objectionable that the Scottish Government is proposing to abolish the doctrine of corroboration in criminal cases without looking at the whole of the rest of the guarantees of due process in the Scottish system.

“Yes, you can use it to decouple, but you can also use it to restate what your fundamental values are, and not just in relation to guarantees in due process, but guarantees in respect of dignity of the elderly in care homes, the disabled and so on. So why shouldn’t you? Why should it necessarily be a way of detaching ourselves from shared values on a European scale to say what are the particular values we have in the UK?”

The Commission found both a higher regard for the ECHR in the devolved regions than elsewhere, and – particularly in Scotland – little welcome for the idea of a UK Bill. Dismissing as “manifest nonsense” the claim that only the Holyrood Parliament has a mandate in Scotland, Sir David comments: “It is certainly true that there is no real dissatisfaction with the Human Rights Act and its working in Scotland, a considerable support for it, and this was notable among people who were concerned with the elderly, the disabled and so on: there was a strong feeling among the people we met in Scotland that the Human Rights Act had been a useful way of empowering these people. And I agree entirely with that, but I don’t see that that means you shouldn’t have a UK Bill of Rights in which you affirm these values as well.”

It is set out in one of the papers annexed to the Commission’s report, expanding on another conclusion, that it is perfectly feasible to have separate statements of rights in different parts of the UK. Sir David agrees. “If you look at the situation in Germany, the Federal Republic is signed up to the European Convention, it is signed up to the EU Charter of Fundamental Rights, and indeed that Charter exists primarily because of pressure from Germany that there should be such a charter of rights working vis-à-vis the institutions of the EU that are not at the moment bound by the Convention, formally speaking. Then the constitution of the Federal Republic, the Basic Law, contains a very large number of provisions of fundamental rights, and in addition each of the 16 Länder has its own constitution and with one exception has its own Bill of Rights. So there is absolutely nothing unworkable about a multi-level system of statements of rights.”

Underwritten

The minority also suggested there were “very polarised views” among the majority as to what a UK Bill should contain. Sir David suggests rather that the issue was between those who would qualify the level of rights enjoyed by, say, illegal immigrants or those such as Abu Qatada, seen as hostile to the interests of the UK, and those, like him, who start from the position that “human rights are human rights because they belong to human beings”.

Martin Howe QC, one of the former camp, produced a draft UK Bill in another annexed paper. Of that Sir David observes: “If you look at articles 1-6 of the Howe draft, I would be a bit astonished if the Home Office and the Ministry of Justice and the Scottish Government would say, ‘Whoopee, we will agree to all of these’. I think they would strongly oppose entrenching procedural rights and administrative justice, what we have discussed.”

It is also said that a UK Bill could simply be amended by a subsequent Parliament riding on a wave of public opinion against illegal immigrants or other media bêtes noires. Sir David doubts this would actually get through the Westminster Parliament. “But in any event, if the Bill of Rights is, as our terms of reference said, one that incorporates and builds upon our obligations under the European Convention, this simply doesn’t arise, because the obligations under the Convention remain. You can withdraw what is said in the UK Bill, but you are left with the Convention.”

And to what extent would continued membership of the European Union mean continued application of the ECHR, even if the UK purported to withdraw its ratification?

“This is a contested question. There is nothing in the EU Treaties which expressly says that membership of the EU is conditional on the UK signing up to the ECHR and the Strasbourg system. The fact is that in all the negotiations with the accession states, it has been a sine qua non that they have signed up, and I think indeed that was set down as one of the parameters of the accession negotiations. Of course, the fact is that all the existing member states had signed up… I think that with the various references to the ECHR in the Treaties, there is sufficient there to be able to say that it would simply be inconsistent with continued membership of the EU to withdraw from the ECHR and the Strasbourg system.”

No time to lose

Indeed, although the report concludes that Bill of Rights proposals should be added to the agenda of the Constitutional Convention that the Prime Minister

has suggested should be convened following the independence referendum, for Sir David “that’s long grass stuff. I personally think the various threats to what I called the creeping invasion of the rights of the individual by the organs of state, and the flouting of time honoured guarantees of due process, I think that’s going on”.

He points to comparable work already taking place. “To be fair, I’ve criticised the Scottish Government, but the Scottish Human Rights Commission is making efforts to write these things down. Their ‘road map’ is valuable and I would build on that as well. But I don’t see the same effort being made in relation to procedural rights and due process, access to justice. You look at some of the proposals for cutting down the cost of legal aid. I agree the cost of legal aid is a problem, but you have to respect the principle of equal access to justice.”

Whatever further debate takes place, Sir David wishes it to be an informed one. Not that the issues are very complex, but they require some understanding of the detail, and “a good understanding of history, because a lot of it is in history”. Take, for example the Scottish Claim of Right. It asserts that the following are contrary to law: imprisoning persons without expressing the reason thereof and delaying putting them to trial. “Another thing,” Sir David adds, “‘sending letters to the courts of Justice ordaining the judges to stop or desist from determining causes or ordaining them how to proceed in causes depending before them’. Now you listen to some of what Theresa May says, you listen to some of what is being said in Holyrood: they are wanting to tell the judges how they are to decide cases! That is today; the Claim of Right is 1689! This is fundamental and it seems to me people ought to realise this.” 

All in the same boat

Sir David's opinion on the disputed issue of an independent Scotland's right to EU membership provides further challenging questions for politicians, as our interview also explored]

Much political heat has been generated, and much ink consumed, over the question whether a newly independent Scotland would automatically assume membership of the European Union, as the Scottish Government has asserted and others including José Manuel Barroso, the President of the European Commission, have denied.

Little consideration seems to have been given, in contrast, to the position of the rest of the United Kingdom – yet, in Sir David Edward’s view, it would find itself in exactly the same position as Scotland, while carrying the responsibility of negotiating a settlement for both new nations.

Sir David’s views, expressed in a blog published in December, attracted attention as not fully supporting the position of either side in the Scottish debate. Few seem to have picked up that the consequence of his position, as he confirmed in our interview, is that “there is an equal problem as between the rest of the UK and the EU as there is between Scotland and the EU”.

The President has taken the line that Scotland, as a new state, would have to apply to join the EU, presumably through an accession treaty, whereas the rest of the UK would continue as before. Sir David’s position is that the concept of a successor state is “not relevant” within the legal order of the EU. There being nothing in the Treaties to cover such a situation, “one must look to the spirit and general scheme of the Treaties”, and “in accordance with their obligations of good faith, sincere co-operation and solidarity, the EU institutions and all the member states (including the UK as existing), would be obliged to enter into negotiations, before separation took effect, to determine the future relationship within the EU of the separate parts of the former UK and the other member states” (my emphasis).

It would, he emphasised to me, be perfectly legitimate, until independence took effect, for the Commission to say it would negotiate with the UK as the member state – and “it would be incumbent on the UK as the member state to enter into negotiations with the EU institutions and the other member states to resolve the problem that would be created”.

But no one could make any assumptions as to the terms on which the rest of the UK could continue as a member state, any more than they could for Scotland – “and the difficulty of assumptions is made all the greater since Mr Cameron’s speech” (setting out his intentions to renegotiate the UK’s terms of membership).

One cannot help pondering, in that case, whether a Eurosceptic keen on renegotiating the UK’s terms ought to vote for independence so as to ensure the door is opened to talks. “You may say that that is so”, Sir David responds, but he points to other potential situations that require the EU “to face up to the problem of sub-state entities… and to have a politics that takes account of these”.

He explains: “There are ostrich attitudes in some parts of the EU institutions and some other member states, in that this isn’t a peculiarly UK problem. A lot of what’s written elsewhere is about Catalonia. In a sense the elephant in this room is Belgium, because some people say that the split-up of Belgium is a more probable event than the split-up of the UK. In Belgium you can’t say that Flanders or Wallonia is the obvious successor member state: they’re approximately of equal size.”

Any future membership terms, for Scotland or the rest of the UK, would require the agreement of all the member states, requiring at the least an amendment of the existing Treaties. In this connection Sir David observes that “much of the discussion is skewed by concentration on the large states of the west, notably Spain, forgetting about first of all Belgium, but also that the majority of member states are small states and a large number of them came into existence as a result of the split-up of larger entities… There is a sense of irrationality about saying that those countries that split up before accession are entitled to remain that way, but if a country splits up after accession, that must be prevented”.

Against that background, would anyone hold a trump card in negotiations? Sir David thinks not; and while it is likely that negotiations would be “very messy”, and might fail for a number of reasons, “On the other hand remember that EU negotiations quite often end up in a political fudge, because there is an imperative to solve the problem and you arrive at a solution that may not be ideal but at least it’s a solution.”

Find Sir David’s blog in the Opinion and Analysis section of the Scottish Constitutional Futures website www.scottishconstitutionalfutures.org

UK Bill? No thanks

The Scottish Human Rights Commission remains unconvinced of the case for a UK Bill of Rights, as Alan Miller told Peter Nicholson

Sir David’s robust defence of the British Bill of Rights Commission’s report does not convince Professor Alan Miller, chair of the Scottish Human Rights Commission, who in an initial reaction said the report revealed the Commission as “out of touch with the progressive direction of travel of human rights protection in Scotland and in Europe, and out of step with reality”.

The SHRC, itself represented on the Commission’s advisory panel, was well aware of the differences of opinion within the Commission. At the same time, as chair of the European Group of National Human Rights Institutions, it was in touch with both the Council of Europe and the office of the High Commission for Human Rights at the United Nations – both of which, Miller told the Journal, are concerned at the current direction in which the UK is heading on human rights.

“The comments [in response to the report] from the UK Justice Secretary, seeking a reduction in the UK’s accountability to the court should the Conservatives be re-elected, reveal the way in which the report will be used”, the SHRC responded at the time. “Attempting to detach the UK from the European Court of Human Rights would be extremely damaging to the UK’s reputation and greatly reduce its ability to press other countries to make improvements to their human rights records. It would also set a precedent for the erosion of human rights protections in countries across Europe.”

One positive Miller takes from the Commission’s final report is the extent to which the Scottish dimension has been recognised: “much more on the radar than it was at the outset”, he acknowledges. But while agreeing with Sir David’s views regarding executive abuse of power, and respecting his desire to proceed towards a Bill with safeguards against such abuse, Miller believes that such intentions would be “marginalised” in the context of the present UK debate if a Bill were to be taken forward, “especially by the dominant party in the coalition Government which wants to roll back the Convention and weaken the jurisdiction of the European Court of Human Rights within the UK”. “I respect what Sir David wants”, he adds, “but in my view that’s not what would happen. There would be a regression from the Convention”.

Miller acknowledges the point that other countries have restated the Convention in terms of their domestic legal systems, but believes the Commission had “no proper evidence base” for its conclusion that a UK Bill would increase public “ownership” of human rights. “In the real world, the environment that the current UK Government has created with its animosity towards the Human Rights Court, this is not the time when such a significant constitutional change can be properly debated. The Commission is not a substitute for the type of commission of inquiry that takes place in most countries when such a change is being discussed.”

How would Miller tackle the sort of abuses of power that Sir David has set himself against? “It could either be done by strengthening the Human Rights Act through legislation to specifically address the erosion of due process, or at the appropriate time, after proper processes, it could be included in constitutional protection of human rights. But the difficulty is the weakness in any UK Bill – Parliament and the state would still be able to legislate contrary to these rights. The backstop is the European Convention, and that is what is being threatened by the UK in the current debate.”