Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 236-239)


4 MARCH 2008

  Q236 Chairman: We are going to start our second set in the afternoon. We are joined by the Rt Hon Kenneth Clarke MP QC, Professor Vernon Bogdanor of Brasenose College, Oxford and Henry Porter. Is there anything you would like to say by way of opening statement? If not, the starting point is we have heard from a wide range of people. Do you think a British Bill of Rights is needed in your view?

  Mr Porter: I certainly think it is. I did not used to think it was but in the last five to six years my mind has changed. It has changed because in the area of civil liberties rather than human rights, and I think there is a distinction which we all understand, we have come to see an attack on the ordinary what I call elementary headline rights that we were all used to in this county. In my submission I gave you a list of those. In some ways they are controversial and in other ways they are incontestable but my main concern is in the area of privacy. I think we are facing the most amazing growth technologically where data bases can link into each other, exchange information horizontally, vertically, without the subject, that is us as citizens, knowing what is happening. That places us all at a great disadvantage to the State. We all have a great faith in the State and in the benevolence of the government but in five, ten, 15 years' time we do not know what kind of government we are going to have and we do not know in what sort of condition the world will be. I happen to think it will be quite a troubled century. I believe now that it is time for us to concede what has happened in the last ten years and to say we have to get a grip on this. We have to understand the direction society could go in. The front line for me is this question of privacy. If we look at what data base is being built now, you have the national identity register, you have every car journey, truck journey, taken and recorded on motorways and in city centres. You have the potential, not yet in law but the Home Secretary has announced the desire, to collect information as people travel out of this country, 19 pieces of information including credit card numbers and telephone numbers and all this may link up. I was having an argument with a friend of mine this morning who said if you have nothing to hide, you have nothing to fear. I just do not think that is a grown-up response these days. Your innocence does not protect you from bad things and does not protect you from what might happen in the future. I have become a great convert for a limited Bill of Rights which underlines these rights that we have all taken for granted and entrenches them in a way that parliament finds acceptable and the judiciary find acceptable. There is no argument about it, we just realise we have to make this new covenant, this new act of faith between the two branches of our constitution to go forward and to protect the average citizen from the kinds of invasion and intrusiveness that I think are beginning to happen. In the street I live, Westbourne Grove in Bayswater, there has suddenly sprouted the most amazing number of globe CCTV cameras which are all linked by microwave and radio controlled. Of course that may or may not help the security of the area but it does give you a sense of the watchfulness of the State which I am beginning to worry about.

  Mr Clarke: I am not persuaded by the case for a British Bill of Rights and I will not be persuaded until I can see with clarity precisely what the content of the legislation is going to be. I would also like to be able to anticipate with clarity what kind of litigation that is going to give rise to. The idea is now very current but I do not think that degree of clarity surrounds the idea at all. I think human rights have become more important in every modern society. I do agree with that implication of what Henry Porter has just said. I think the European Convention on Human Rights is an absolute floor as a minimum defending human rights in this country and always has been. We have moved on steadily. We have allowed individuals to bring actions under that Convention since the mid-`60s. I was opposed to the Human Rights Act and I have changed my mind. I was wrong. I feared that it would transfer power to the judges from parliament. I feared that we would have a rash of political and campaigning cases that would give rise to judges getting involved in things that should be resolved by the political process. With hindsight I was wrong. I think we are in a very comfortable position. The idea of judicial review, developed over the last 20 years, has been extremely important. I am wholly supportive of that although I sometimes found it a nuisance when I was a minister. I always credit Harry Woolf with having led the way in developing the concept of judicial review in its modern form and it is a valuable protection against arbitrary decision by ministers, their bureaucracy and the like which, with the size of the modern executive and its interface with individuals, is very, very important. Why have we got into a debate on more? I am afraid I think there is a political background to all this. There is the right-wing press's attack on the European Convention on Human Rights which was a wholly non-controversial document until about 15 years ago but once it became part of our European debate in this country suddenly it became the object of attack with the growing insistence that foreigners were making laws which were being applied at the expense of our institutions. Politicians should have been more robust in resisting that. For a variety of other reasons, which I certainly would not raise in a Joint Committee, Britishness has become frightfully important to a lot of British politicians, some because they want to prove they are not just Scottish and some because they want to prove they have listened to the feelings about immigration but do not want to say much about it so we have a lot of Britishness. People go into areas that imply that somehow a new British set of laws is required to defend our human rights. Where I get off the bus is when I say to press people what do you wish to add to the existing European Convention and the Human Rights Act assuming that you are not going to persuade me you want to subtract in any way from what we have got; vagueness rapidly results. You get into a debate about rights and responsibilities which gets canvassed in all directions which is a very important debate. I do not think it is a great new political insight. I think it is platitudinous and should be regarded as rather cliche-ridden by anybody who understands how a democratic society works. Of course there are rights and responsibilities but you would not want to put those into law. The idea that you are going to have litigation enforcing responsibilities on people, individual citizens, in the name of the Human Rights Act I find rather bizarre. The duties are already covered by what we have. The best argument I have heard is to protect the right of trial by jury. As it happens, I have taken part in arguments in recent years defending the right to trial by jury which I strongly defend. It has been raised several times in parliament. I have to say I am wobbly on details of it such as the question of whether or not you have jury trial in long complicated commercial fraud. When I was Home Secretary I believed that we did not prosecute enough commercial fraud because the complexity of it made it highly unlikely that you would have a satisfactory trial by jury. Perfectly distinguished jurists recommend that change and I think parliament should continue to look at it. I do not think it should be decided on some human rights argument and be ruled out of court as an argument. I have to say all the other suggestions I have heard get into the area of social and economic rights which I really would not transfer from parliament to the judges and which take on too much of a political context. Mr Porter puts it very eloquently. I read the document he put in and listened to his evidence and Henry Porter feels very strongly about the surveillance society which is quite rightly a current topic of debate. I share his unease about it. I do not share his feeling that we are all acquiescing and setting out machinery of a police state but a police state could make great use of what we are setting out and we ought to take check of it. The question of whether and where, what sort of DNA bank you have, whether you should regulate the spread of CCTV, all these things, I go back to my feeling that if parliament and political debate cannot resolve that public concern on that issue then I do not think we should transfer it across to the judges with some statement of human rights and say you tell us what kind of DNA bank, if any, the police are allowed to hold on the ordinary citizen. Not least public opinion will change at times, public opinion resolve, the political process is more flexible, more responsive to change, and I think that is what parliament has got to be capable of resolving. It should not become a matter for strictly protected law being applied by judges who might actually be more intelligent and more capable of resolving many of these issues in the collective mind of parliament but are not accountable in the same way. Part of the public debate, and the way parliament is, you might think parliament is the best place for those cases to be resolved.

  Professor Bogdanor: Whether we want a British Bill of rights depend on what we want it to achieve. The European Convention was first drawn up 50 years ago in a very different sort of society from the one in which we now live. I suspect that if the framers of the Convention could be brought back to life they would probably say that more rights ought to be added on to it, rights which were not thought of perhaps at that time. That would be one purpose of a British Bill of Rights. One might think that not enough rights are protected by the Human Rights Act. Secondly, one may think we need better protection for human rights. We are one of the few countries where the European Convention is not actually incorporated into our law. Whether one has a right or not depends on the discretion of government or parliament. The judges cannot enforce that right. Many people in Britain believe that this is a sensible compromise but we are very much out of line with most other democracies in Europe. Thirdly, it seems from various surveys that the British people do not really feel they own the Human Rights Act. Although, as others have said, it is a mistake to regard it as an alien imposition, nevertheless many people do feel that it is. I was talking recently to a senior Conservative who is strongly in favour of the Human Rights Act and he said that he cannot persuade his constituents in his rather leafy constituency that the Human Rights Act has anything to do with them. His constituents believe that it is only for prisoners and suspected terrorists and the like. We would, therefore, achieve a firmer basis for the Human Rights Act if somehow the British people could feel that they owned a British Bill of Rights. That would be a third basis for such a Bill. The fourth issues is very largely that discussed by Kenneth Clarke about citizenship, identity and so on. But in this area I doubt if the Human Rights Act would be of much use. It does not seem to me a mechanism that can resolve these very difficult social problems of how to hold a multicultural and multi-denominational society together. That, after all, is one of the most fundamental problems we face as a country. I very much doubt if legal mechanisms can do much to help in that direction except perhaps at the margins.

  Q237  Chairman: I think the question about the Human Rights Act being somewhat out of date is an important one. I do not know if you were here when I put that point to Baroness Hale. I contrast that with, for example, the Charter of Fundamental Rights—putting to one side for a moment its justiciability and its enforceability—if you look at the Charter of Fundamental Rights per se it is a much more modern document dealing, for example, with issues like data protection in a way that the European Convention could never do, in that they are the sort of things we can now do which Mr Porter was talking about which were not even dreamt of in 1950. So could we learn things from the Charter of Fundamental Rights which might be transferable?

  Professor Bogdanor: Indeed, it is not difficult to think of further rights which should be or might be in a British Bill of Rights and which would perhaps be there if it was being drawn up afresh. The right of privacy is certainly one. There are other rights which are recognised in international treaties and it may be argued that they also ought to be in a Bill of Rights. Some have argued against social and economic rights but there is one important social right which is in the European Convention and that is the right to education. Some would argue that if the right to education is there, why not the right to health care as well. That seems in many ways a complementary right. There are further rights which have been mentioned, rights connected with the environment, which of course were not thought about in the early 1950s, so I do not think it is difficult to draw up a list of further rights which ought to be given basic protection. Finally, some people have suggested that there ought to be a fundamental right to equality in the British Bill of Rights. We have recently set up an Equality Commission and it would seem natural perhaps to put a right to equality, possibly parallel to the right to equal protection in the American constitution. We ought to perhaps have that in a British Bill of Rights if we were to have one.

  Q238  Chairman: Your view, Mr Porter, is that we should be looking at something rather more narrow and looking primarily at civil rights, not these wider things. In that context, could I put to you one last question from me and that is partly building on what Ken has said. If you take, for example, the issue of CCTV which you take great exception to, there is huge public demand for CCTV as they see this as a way of protecting themselves from crime, is it the role of the Bill of Rights to try to square that circle by saying, "Thou shalt not have CCTV" or by saying, "You can have it but only under a certain set of circumstances", when on the other hand people are saying, "We want it on every street corner because it helps protect us against crime"?

  Mr Porter: It is not my only fear and I do see the point of CCTV.

  Q239  Chairman: I use that as an example.

  Mr Porter: I raised it obviously along Westbourne Grove. Partly because people do not understand the advantages of technology, but my real worry is what is called transformational government, the way that databases do naturally grow to each other, they reach out to each other, and then there is function creep, people think of new ways of using that database. If I can just set aside the CCTV point, I think if people knew and understood the power of these databases, of collecting and sharing and processing information, they would begin to think, "We need to think about it as a society" and that should be done by Parliament. I am very in favour of Canadian privacy protection. As you probably know, there are two privacy laws in Canada, one of which protects information which is collected by the Government, federal and state, and the other which is about commercial collection of data. I do think we should have something like that in this country and for my taste it would be backed by a Bill of Rights which ensured, as the Human Rights Act does, privacy for people's communications and their family. We do live in a society, and it may be argued it is necessary, where there are something like half a million interceptions—email, internet, post and anyway you can think—per annum. The idea of that 15 years ago, the way we have accepted that, seems to me extraordinary. I make the point that it is not just about CCTV, it is about databases and we have to be very careful of them.

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