The Rt Honourable Mr Jack Straw MP, Lord Chancellor and Secretary of State for Justice, delivers the 2007 Mackenzie-Stuart Lecture on Human Rights in the 21st Century. The lecture discusses the growth of human rights in the UK, tracing their history back as far as Magna Carta, and defends the provisions of the Human Right Act. Mr Straw considers the balance between humans rights and the obligations of citizens, and announces that the Government will be producing a green paper to consult on proposals to create a new Bill of Rights and Responsibilities to ensure the better understanding of British cultural and societal values.
If you read certain newspapers you might be forgiven for thinking that human rights were an alien imposition foisted upon us by ‘the other’. It is a misconception that has regrettably taken root.
A central theme of my lecture this evening is to explode this myth, and to demonstrate how far from being some “European” imposition, Britain has been at the forefront of the political and legal development of human rights across Europe and across the World.
I regret that I was never fortunate enough to meet him in person, but I hope and believe that Lord Mackenzie Stuart, whom we are here to honour, would have approved.
As the first United Kingdom judge, and later President, to sit in the European Court of Justice his reputation goes before him as a pre-eminent figure in law. His career is not only testament to the profound influence which British jurists have had on the furthering of democracy in Europe, he personified all the very best qualities of the British judiciary.
However, I declare an interest before I begin. I was a lawyer, a criminal barrister, in the seventies before becoming a politician. I was also, as Home Secretary in 1997/8, the Minister who took the Human Rights Bill through Parliament and saw it brought it into force in 2000.
I mention this because throughout our history lawyers, politicians and judges have not necessarily seen eye to eye, especially on issues like that under discussion this evening. Indeed, in a predecessor of mine as Lord Chancellor, Lord Jowitt – himself a lawyer, a politician and a judge - this tension was embodied. As a lawyer he disliked some of the imprecise drafting of the European Convention of Human Rights (ECHR), as a judge was concerned about the application of such a “half baked scheme” , but as a politician, decided that it was clearly in the national interest to agree.
Behind this example lies a point of substance. The history of rights has been typified by the search for a balance of principle and practicality: what they represent and how they can be effectively applied under the law. Human rights are our birthright as human beings: they are not the gift of governments but part of our common humanity. However, they have to be seen in the context of their time.
When it was adopted and proclaimed at the UN on the 10th December 1948, the Universal Declaration of Human Rights was not intended to create legal rights – it was aspirational, offering a normative counterpoint to the evil that had so recently gone before. It was the expression of a global desire and drive to establish common standards applicable to all humankind. The European Convention of Human Rights was borne from this, taking this non-enforceable Universal Declaration as its base but developing the principles which underpinned it through the protection and framework of the law and with a means, ultimately, to enforce that law through the Court.
What I want to do in this lecture is look at how our sense of rights and obligations has changed over the last half century, and suggest that the formulations of human rights from the 50s are robust and timeless, but that they need to be further adapted to take account of major changes in the UK, in Europe, and in the World over the past 20 years.
First, I want to look briefly at the genesis of our modern notion of international human rights, articulated in the face and immediate aftermath of an existential threat to the values and civilisation of Europe.
Second, I will argue that today Britain faces a new set of challenges, both internationally and at home, which requires us to look again at our mechanisms of rights.
And finally, I want to discuss our plans to publish a Green Paper into a British Bill of Rights and Responsibilities that will build on the enormous progress in the development of rights –so that our system meets the needs and expectations of this century as well as the last.
With the wounds of the Second World War far from healed the European Convention of Human Rights was agreed to protect the citizens of Europe from ever again experiencing the horrors of totalitarianism. We were among the first to sign it in November 1950 and the first to ratify it in 1951.
It seems curious to think that given the significance and sentiment behind the circumstances of their genesis, in some circles ‘human rights’ are seen as an unwelcome “European” creation as if in any event Europe was culturally and philosophically separate from us. Far from being grafted on by Continental - I suppose Napoleonic - Europe, Britain was at the forefront of their development in a context which had ramifications for the whole world.
The notion of internationally recognised freedoms had been enunciated during the last war in 1941 by Churchill and Roosevelt in the Atlantic Charter. But, after the War, Britain was instrumental in developing a system of rights designed primarily to limit the ability of governments to restrict the individual liberties of their citizens. This differed from and developed the conception of liberty as described by Dicey which was based around the philosophy that individuals were free to do that which was not forbidden without clarity as to where that freedom ended.
On 20 July 1950 FCO Minister Kenneth Younger stated that the European Convention in which these rights were enshrined “contains a definition of the rights and limitations thereto which follows almost word for word the actual texts proposed by the United Kingdom representatives”
We led the negotiations, we led the drafting, we led the way in Europe. The Convention rights have a long British pedigree, rooted in the Magna Carta, the 1689 Bill of Rights and habeas corpus and can be read as a manifestation of the values that were already deeply imbued in our common law.
It is difficult for us today from the comfort of 60 years hence, to understand completely the abject horrors of Nazism, nor to comprehend fully the egregious human rights abuses which, for more than 40 years after the war were kept hidden behind the Iron Curtain.
It is hard for my generation, it is still more so for later ones, to come to terms with the fact that humankind was capable of such organised evil, or really to appreciate the sense of utter powerlessness which so many millions felt in the face of it.
This is particularly true from a British perspective, when for centuries we have been spared the ordeal of totalitarianism, occupation or revolution. Our history has been the story of the growth of an enabling not repressive state.
However, elsewhere in Europe during this period, we have seen more seismic developments with first the collapse of fascism in Spain and Portugal in the 1970s; the banishment of the military Junta in Greece; 1974, the fall of the Berlin Wall; 1989, the demise of the Soviet Union; 1991; the Balkans throughout the 1990s – for many across Europe, who had been denied until recently the liberties which we in the UK have long taken for granted.
Europe is now a very different place. As a result, Europe has become wealthier, stronger, safer and more secure. There is common recognition that prosperity and security derives from sharing common purpose. Lord Steyn put it well: “Observance of human rights is instrumentally valuable. It tends to promote the conditions in which democratic systems can flourish for the benefit of people generally” .
The ECHR has been incorporated into the law of 47 states across Europe - East and West – through one means or another. A shared human rights culture is something that helps bind us together, and provides a common set of values around which Europe can unite.
In spite of advances in Europe, the “old” threat to humankind, from authoritarian regimes in functioning states, still remains in other parts of the world. There are still too many examples where such states deny basic rights to their own citizens, and pose a threat to their immediate neighbours and the region.
Now, on top of this there are new threats which derive not from the organised political despotism of a Nazi Germany, an Imperial Japan, or a Stalinist Russia but from terrorists operating internationally and typically based in failed, failing or rogue states.
In the parlance of diplomacy, these “non-state actors” operate outside of the moral and legal parameters that define how democratic societies operate and by which every other state is judged and may have its behaviour moderated. These groups exist without regard for life, the rule of law or human rights. They are bound neither by law nor ethics; the cornerstones of how a democratic society must respond.
The threat from Al-Qaida-inspired terrorism is wholly asymmetrical; our diplomatic, military, security, law enforcement and legal/judicial systems were never designed to counter it. It has made it harder to protect our citizens.
Yes, states across the globe have had to deal with terrorism on a significant scale throughout history but what characterises the current threat is its truly international scope: foreign nationals operating from a second country, funded from a third, attacking a fourth, its aims, the methods and technologies used, the scale of its murderous ambition. Despite the considerable efforts and achievements of the intelligence, security and law enforcement agencies it is the unpredictability of international terrorism that creates a sense of fear and instability very different in character from that experienced in this country from the Provisional IRA, or in Spain, from ETA.
Governments must act to protect life, and laws must change to meet the imperatives of national security. This is not the lecture to discuss the fullness of our counter-terrorism response, suffice to say the statute book has and must play an integral part. Our counter terrorism legislation looks to strike a balance between the tensions, from public safety on the one hand and the liberty of the individual on the other, within the framework of what is proportionate and legitimate. But a central point of my thesis is this evening is that far from undermining how we strike that balance in the new situation, a human rights framework – used intelligently - can help to resolve these tensions. This is exactly what Winston Churchill intended and British officials achieved when they drafted the ECHR.
Let me give you a familiar example of this tension in operation; the issue of the deportation of foreign nationals. Following the decision of the European Court of Human Rights, in Chahal vs United Kingdom (1996), it has not been possible to deport certain individuals, including those who may be guilty of serious crime or terrorism offences, to countries where there is a “real risk” of torture or death. The tabloid press and the Opposition often cite this as an illustration of how regard for human rights puts the liberty of individuals, in this case particularly undesirable individuals, above the safety and interest of the wider community.
Now there is indeed a live issue as to whether the appropriate test is a “real risk”, or, for example, “substantial grounds” whether in a particular instance, concerning these suspects of this nationality, the risk they would in practice face is a high or minimal one. There are often found to be genuine and honourably held differences of opinion on what would happen if and when that suspect were deported to his home country. It is one reason why I when Foreign Secretary, and the government now generally, has been instrumental in securing “Memoranda of Understanding” with such countries better to guarantee the safety of deportees.
But I do not believe – I cannot believe- that anyone is seriously proposing that we should ignore the risk of harm even where this risk is incontrovertibly high and well evidenced, and so effectively out-sourced the prospect murder or torture.
The principle against this was firmly established in our common law and in our system of values long before the incorporation of the ECHR into domestic law. It was the world’s first Bill of Rights – the 1689 British Bill of Rights – which outlawed “cruel and unusual punishment” and it was this prohibition which was absorbed into modern human rights treaties.
Consider for a moment in the counter-factual. Consider the outcry if the Government wilfully and knowingly did deport someone to gross ill-treatment or death in a foreign country. What Home Secretary, what Prime Minister would sign away the life of another to return to torture and judicial murder? What sort of society would we be living in if such a decision was deemed acceptable? What law could wash the blood from their hands?
The harm to our international standing would be irreparable, the damage to our values fatal. If we are to enjoy the benefits of a liberal democracy, if we are to continue to live in a prosperous, fair and free society we must recognise that we must adhere to the letter and the spirit of human rights. The price we must pay for freedom is not to debase our values.
We will do our utmost to secure the safety of the British people, and we all have to be prepared to limit individual liberties to the extent that is necessary. We have human rights and an independent judiciary to establish and marshall the lawful boundaries of our response. We do not need to resile from the ECHR nor the HRA. They already provide us with a framework in which to address security as well as liberty. Indeed the ECHR places a duty on the state to protect the right to life of everyone in its jurisdiction. Where we have problems with the interpretation of the Convention by the Strasbourg Court, the proper course is to argue the issue robustly before that Court – as we have recently done in relation to the Chahal issue, and not alone: rather in concert with Italy and the Netherlands.
21st Century rights do need to address these changing circumstances, not in the principle that underpins them but the manner of their application.
I beg your indulgence momentarily, for the merest nod towards politics, I do so because I think it demonstrates the basis for our approach. While I welcome that rights and responsibilities are again receiving prominence in political discourse, I fear, however, that those in the main opposition party are wrong in their interpretation of the effect of the HRA. Their stated position is that “the HRA should be scrapped, and replaced by a British Bill of Rights and Responsibilities that would enable us to take the necessary action against those who commit acts of terrorism” .They continue: “if we were to have our own Bill of Rights, the Convention would be reinterpreted accordingly and the margin of appreciation would allow us to take more action against those who threaten our country”.
This argument leaves two substantial questions unanswered. First, what is this “necessary action” against terrorists to which they refer? Is it to secure carte blanche to deport people to face a real risk of torture or death? If not, what point is being made? Second, whatever is meant by this “necessary action”, they now also say that they will not resile from the Convention itself. Three cheers for that. But if so, how on earth then do they propose wholly to circumvent Article 3. It would appear that they have fundamentally misunderstood the margin of appreciation that we would be afforded should we have a British Bill of Rights which ran counter to the ECHR. Any Bill of Rights could not have a reduced set of rights or more heavily qualified rights than currently set out in the ECHR without placing the UK in breach of its international obligations.
Studies show that Article 3 is applied similarly not just in Strasbourg but also in the domestic courts of UK, Germany, Spain and France to name but a few. Any argument that the repeal of the Human Rights Act will mean that the consequences of Article 3 disappear, is as disingenuous as it is flawed.
This ‘margin of appreciation’ is often mentioned whenever there is discussion about the ECHR. It is a fabled doctrine which, no matter what the decision in question is, is seemingly always trotted out when the opponents of the HRA wants to make a point that the Human Rights Act unfairly binds us and delivers perverse results. In fact their statements simply show that they have fundamentally misunderstood what the margin of appreciation actually is.
The main opposition party will tell you that having a Human Rights Act means we do not get the full benefit of the margin of appreciation. They say that other countries, notably those with their own domestic Bill of Rights are left alone by Strasbourg. David Cameron has stated that a British Bill of Rights would have a “status similar to that of the German Basic Law and in so doing help restore British parliamentary supremacy as against law made elsewhere”.
They point towards the Basic Law, and they seem to say ‘look; the decisions in German courts are rarely interfered with by the Strasbourg Court. They are left alone to get on with it’. And so they conclude that it is these nations which most benefit from the margin of appreciation.
This is a mistaken conclusion because it misses a rather simple point. The standard of protection given to individuals by the German Basic Law is greater, and less flexible than that given by the ECHR. As such, decisions made by the German Court are therefore rarely overturned by the European Court of Human Rights because they do not fall below the minimum floor of rights which the ECHR seeks to establish. The lack of interference is not because of the margin of appreciation but because the German Court takes a more stringent approach in protecting the individual in the first place.
The UK Courts, on the other hand, apply a different proportional test with regard to situations where rights are in conflict. This allows the courts to make a more balanced judgment as opposed to a narrowly confined decision. Far from failing to benefit from any margin of appreciation the UK reaps much greater flexibility because our courts take a broader, balanced approach, in much the same way the ECtHR does. The Human Rights Act allows British judges to weigh up and consider the rights and interests of not only the individual, but also those of the wider community.
Repealing the Human Rights Act and simply replacing it with a separate Bill of Rights would, I believe, have the effect of restricting the flexibility and the application of balance within the UK courts. The current structure of the Human Rights Act means that our courts have to grapple with the very same questions as the Strasbourg Court, which enables our courts to exercise an important influence on ECtHR jurisprudence. In this way, we are taking full advantage of the margin of appreciation afforded by the Strasbourg court, in a way which respects British judicial decision making and allows for balance. To move towards a German Basic Law model would, I am convinced, result in a more restrictive application of rights and a loss of any meaningful margin of appreciation. The very opposite effect of that which the Opposition claim.
Furthermore, repealing the HRA would only result in delay for British people seeking justice. Rather than seeking remedy in a British court, and heard by a British judge, the British people would have to look forward to joining the back of a very long queue of those waiting for justice in Strasbourg.
I will come on to discuss the Government’s position on developing human rights policy shortly, suffice to say we consider it a very significant platform on which to build. One of the important things about the Human Rights Act is the protection and prominence it gives to the very values we are defending. In seeking to protect the public it is vital that we do not compromise our ideals. We must practise what we preach.
But whilst the HRA represents a significant milestone, the government does not see this as the final resting place in terms of rights policy. The context in which the Act operates has changed enormously even in the short time since the legislation was passed to bring rights home. It is from the vantage point of 2007, rather than 1997, that we must plot the next steps for human rights.
So what is the contemporary environment?
I have talked about the impact of 9/11, and the end of totalitarianism in Europe, but in many ways it is deeper and, in the long-term, more profound social and economic developments that make the case for a Bill of Rights and Responsibilities in the UK.
Earlier this year I gave a lecture in Oxford on democracy and identity in which I talked about how British society has changed beyond all recognition in my lifetime and how the increasing heterogeneity of our population is, if anything, accelerating.
This development is not unique to Britain of course. Thanks to incredible advances in communications, dramatic cost reductions in transport and the explosion of international trade, individuals now cross borders and mix with people from different cultures and nationalities on a hitherto unknown scale.
The impact of these changes on the United Kingdom is striking. Today, 4.3 million people - 8% of our population - are from families who have come to these shores, mainly from South Asia, the Caribbean and Africa, but increasingly from other areas too.
It will not be long before some cities and towns in England have 50% of their population from such backgrounds. One quarter of the population of greater London today was born abroad, 1 in 5 here in Cambridge were born outside the UK .
In many ways, this rapid process of increasing heterogeneity has been and continues to be remarkably smooth. The vast majority of people who have settled in the United Kingdom from abroad have integrated well into mainstream society. They have made homes, got jobs, had families and are now playing a full role in society. And they have generally been well received.
To borrow a phrase from Seymour Martin Lipset, the "melting pot is melting as never before" .
However, the data also shows a contradictory picture - increasing integration for most people, in most areas; but increasing segregation for some in others. Data published in the "State of the English Cities" report in May 2000 highlighted this divergence. It showed that segregation fell between 1991 and 2001 in 48 of the 56 towns and cities studied. But segregation had increased in eight areas. So increasing heterogeneity is not without its problems.
And there has been another major shift in society that is also relevant to this debate. The structure of British society which developed during a century and more of industrialisation has rapidly been transformed as a result of changes brought about by economic globalisation.
This profound period of socio-economic change has helped to shift public attitudes. It has encouraged the rise of a less deferential, more consumerist public. In this more atomised society people appear more inclined to think of themselves and one another as customers rather than citizens. The state has at times encouraged this perception in the way that it has referred to and treated the public.
In some respect these are positive developments. People are more independent, more “empowered”, but it poses problems too, especially when viewed in the context of liberal democracy. As Meg Russell has said:
“It is difficult to find anything more antithetical to the culture of politics than the contemporary culture of consumerism. While politics is about balancing diverse needs to benefit the public interest, consumerism is about meeting the immediate desires of the individual. While politics requires us to compromise and collaborate as citizens, consumerism emphasises unrestrained individual freedom of choice. While politics recognises that there are always resource constraints, modern consumerism increasingly encourages us to believe that we can have it all now.”
The problem of this at times solipsistic approach, when applied to human rights, is that it distorts the way that people look upon those rights. To an extent, they become commoditised, yet more items to be ‘claimed’. This is demonstrated in how some people seek to exercise their rights in a selfish way without regard to others - which injures the philosophical basis of inalienable, fundamental human rights. Secondly, some people resent the rights that are afforded to fellow humankind- we see this is in the media uproar around human rights being a “terrorists charter” or there for the benefit of minorities alone.
I will be working closely with Lord Goldsmith and his ’Review of Citizenship’ to look at how British Bill of Rights and Responsibilities can help to combat this issue by helping to foster a stronger sense of citizenship. It can do so by establishing and articulating the balance between the rights we are all entitled to and the obligations we all owe to each other
This is not a new concept; it goes back to Tom Paine. He declared that:
“A Declaration of Rights is, by reciprocity, a Declaration of Duties also. Whatever is my right as a man, is also the right of another, and it becomes my duty to guarantee as well as to possess” .
A Bill of Rights and responsibilities imposes obligations on government: but it also makes clear that the citizen has mutual obligations. The extent of this ‘horizontal’ relationship, is something we will explore, and we can look more recently than Tom Paine to the example of South Africa as to how this could work in practise.
Justice Kate O’Regan, Judge of their Constitutional Court describes the operation of this idea of ‘horizontality’:
“What is clear already is that when a court develops the common law, for example, libel law, the court must consider the obligations imposed by the Bill of Rights. In the case of libel, this involves several rights: freedom of expression on the one hand and the right to dignity and privacy on the other. The court has to consider these rights in developing the rules of common law liability” – she says, and crucially, she goes on: “Our constitution does not carry a notion that one forfeits one’s rights entirely if one does not observe ones obligations” .
We need to look at the lessons from South Africa as from other jurisdictions, as to how they have applied a Bill of Rights in their own national contexts and how this might apply to the United Kingdom.
Once again we see the balance of principle and practicality in operation; few people would have a problem with the principle that we have responsibilities as citizens, but the debate will centre around how they should be articulated and how they would operate.
Over many years there has been debate about the idea of developing a list of the rights and obligations that go with being a member of out society. A Bill of Rights and Responsibilities could give people a clearer idea of what we can expect from the state and from each other, and a framework for giving practical effect to our common values.
However, if specifically British rights were to be added to those we already enjoy by virtue of the European Convention, we would need to ensure that it would be of benefit to the country as a whole and not restrict the ability of the democratically elected government to decide upon the way in which resources are to be employed in the national interest. For example, some have argued for the incorporation of economic and social rights – as they have in South African law – into British law. But this would involve a significant shift from Parliament to the judiciary in making decisions that we currently hold to be the preserve of politicians including decisions around public spending, and implicitly, levels of taxation.
I entirely agree with the words of Lord Bingham, in his important speech on the rule of law when he said that the importance of predicatability in law must preclude “excessive innovation and adventurism by the judges ”, and that is echoed Justice Heydon of the High Court of Australia who suggests that judicial activism, taken to extremes, can spell the death of the rule of law.
In an enabling state, in a democratic society, it is far more than the law that binds us together. But the law has a powerful role to play. The introduction of the Human Rights Act was a landmark in the development of rights.
Notably however, the Act has not become an iconic statement of liberty like the US, or South African Bills of Rights. Perhaps this is because our statements of rights have been the production of evolution and not revolution.
We have not had to struggle for self-determination or nationhood, nor have we been torn apart by social strife, or had to fight bitterly for equality as in South Africa.
Do we in Britain value these rights less as a result? I don’t think so.
I think an innate understanding of rights is a part of our national psyche, it is the amniotic fluid in which we have grown, so too is an understanding of the obligations we have to each other. But we could make them better understood.
If a Bill of Rights and Responsibilities that clarifies this relationship is to be more than a legal document and become a charter expressing our values as a society it is vital that it is owned by the British people and not just the lawyers.
This is why we are initiating a full and wide-ranging debate with our Green Paper, one part of a substantial programme of constitutional renewal announced by the Prime Minister in July. As Gordon Brown said in his speech this morning, we will “found the next stage of constitutional development firmly on the story of British liberty”.
At the heart of British citizenship is the idea of a society based on laws which are made in a way that reflects the rights of citizens regardless of ethnicity, gender, class or religion. Alongside this sits the right to participate, in some way in their making; the idea that all citizens are equal before the law and entitled to justice and the protection of the law; the right to free expression of opinion; the right to live without fear of oppression and discrimination.
As the Governance of Britain Green Paper stated these guiding principles and ideals represent the starting point from which further debate may take place. Over the coming months, I will publish a further Green Paper that will frame the debate on how we might codify these rights in a way that articulates more clearly the relationship between citizens, society and the state.