Northern Ireland Committee
Oral evidence: Implications of the Bill of Rights for Northern Ireland, HC 678
Wednesday 11 January 2023
Ordered by the House of Commons to be published on 11 January 2023.
Watch the meeting
Members present: Simon Hoare (Chair); Sir Robert Buckland; Stephen Farry; Mary Kelly Foy; Sir Robert Goodwill; Claire Hanna; Carla Lockhart; Jim Shannon; Mr Robin Walker.
Questions 42-67
Witnesses
II: The Rt Hon. the Baroness Hale of Richmond DBE, former President of the Supreme Court of the United Kingdom; and Sir Stephen Laws KC, Independent Human Rights Act Review Panellist, Senior Research Fellow on the Policy Exchange’s Judicial Power Project, and former First Parliamentary Counsel.
Witnesses: The Rt Hon. the Baroness Hale of Richmond DBE, and Sir Stephen Laws KC.
Q42 Chair: I welcome Sir Stephen Laws KC and the Rt Hon the Baroness Hale, former President of the Supreme Court of the United Kingdom. Thank you both for finding the time to join us this morning. I am not sure, Lady Hale, whether we were fearing a spider, but we are cheered by a ray of spring sunshine, by the looks of it, on your brooch, so you are continuing a tradition that we follow with keen interest—I suppose that is how I might describe it. May I kick off the questioning by asking both of you what, if anything, a resident of Northern Ireland should be concerned about with regard to this Bill.
Baroness Hale: My answer will be virtually identical to the answer that you got from the Northern Ireland Human Rights Commission. There are ways in which this Bill reduces both the substantive content of the rights contained in the European convention and the Human Rights Act, and the access of individuals to the courts to vindicate those rights.
Sir Stephen Laws: I think there are grounds for concern because of the Good Friday agreement, and it is important that this Bill should go forward in a process that respects the need for discussion with special reference to Northern Ireland. I do not think that the Bill—we are going to come on to the detail—is something that people ought to be particularly worried about. I think what they should be worried about is that we have spent 25 years trying to give effect to the Good Friday commitment to a specialist human rights regime in Northern Ireland and nothing has come of that. This is really just the background to that.
Q43 Chair: Lady Hale, in terms of your position—in sharp contradistinction to Sir Stephen’s—is the Bill amendable to address the concerns that you and the Commission have, or is it beyond redemption?
Baroness Hale: That is a very interesting question, which I suspect a real parliamentarian, which I have never claimed to be, would be much better qualified to answer than me.
Q44 Chair: Anything is possible in politics—at least that is what my Whip tells me. What I would like to know is whether it is amendable from a legal point of view.
Baroness Hale: From a legal point of view, it would be much simpler to retain the Human Rights Act and make such amendments to it as were recommended by the independent Human Rights Act review and, indeed, anything else that the Government might wish to promote, rather than tearing up the whole thing and introducing a new structure that reduces the protection currently given to human rights under the Human Rights Act. It would be much simpler just to keep it. Also, from a lawyer’s point of view, any new piece of legislation that replaces something that has been there for quite a long time now—20 years—is bound to lead to uncertainties, more litigation and more cases in court to iron out the uncertainties. There are aspects to this Bill that, as the Commission has already pointed out to you, will need a considerable amount of attention from the courts. My solution would be to keep the Human Rights Act and amend it, and Sir Stephen would be very expert in drafting amendments to the Human Rights Act to meet certain concerns, rather than this wholesale replacement, much of which—well, the first three clauses—are not necessary at all. They are window dressing in my humble opinion.
Q45 Chair: Sir Stephen, I think you have just been instructed by Baroness Hale there. Are you concerned by the apparent lack of sensitivity and cognisance of the Northern Irish situation and circumstances, which the Bill appears to ignore? Whether that is by accident or design is a moot point; should one be concerned by that?
Sir Stephen Laws: I understood that the Government were committed to continuing to reflect, in the passage of the Bill, how that affects the position in Northern Ireland—and so they should.
Q46 Chair: I appreciate that, but given the acute sensitivity of everything, and the fact that this is the 25th anniversary year of the Good Friday agreement—and everything that sits around that—is it really good enough to say, “We are going to publish a Bill, and we might amend it during the course of its parliamentary career to suit circumstances that are pretty fundamental to a key element of the United Kingdom”?
Sir Stephen Laws: I think it is important that the Government show a real commitment to considering—as they have brought forward their proposals for the whole of the United Kingdom—how they need to be further adapted to reflect what happens in Northern Ireland. I think that is going to be necessary. I do not think you can do that without doing what the Good Friday agreement requires, which is to discuss it in a spirit of mutual respect and equality of esteem with the people of Northern Ireland. You can only do that when you have got the proposals in front of you that are to apply to the United Kingdom.
Q47 Chair: The consultation responses clearly demonstrated a very significant majority in support of retention of the Human Rights Act, potentially with amendment, as Lady Hale has suggested. But there was broad support for the principles of it. Given the rise in prominence of human rights in the narrative of the country, why do you think the Government have done that?
Sir Stephen Laws: I am not sure that I can comment on that. Lady Hale rightly says that there are two ways of doing this: you either take the Human Rights Act and amend it, or you rewrite everything to incorporate what you have retained from the Act—which is actually quite a lot—and the amendments. When I was drafting the legislation, I found that established lawyers always wanted you to do the first, because they understood the law that was already there. If the consultation response from a firm of solicitors was written by the articled clerk, they always wanted it to be rewritten from scratch so that it was easier to understand as a whole. I do not think there is much in that really.
The problem that I think the Government are addressing is one that was identified in the IHRAR report, which is that the Human Rights Act after 20 years—like it or not—has not attained the level of public and political acceptance that is needed to make it stick. We know that is true of Northern Ireland too, because the issues that arise in relation to this Bill are the same issues that have bogged down the debate on the separate Northern Ireland Bill required by the Good Friday agreement. Maybe a fresh start, with amendments, is a way to try and build that further acceptance and consent that is needed to make the Human Rights Act stick. That is all I can suggest.
Q48 Chair: This was a point that we touched on with the Commission. You could go to anybody in the country now and ask, “Do you think workers’ rights are important—statutory sick pay, holiday pay etc?” They would say yes. “Do you think environmental protections are important?” In the main people would say yes. “Do you think disability discrimination legislation is important?” Everybody has managed to understand the merits of those protections. Why have those who are most committed to the Human Rights Act, and the whole arena of human rights, been so unsuccessful in cementing the bona fides of the principles of the Act in the wider mind of the public?
Sir Stephen Laws: I think it is for two reasons. I think one of the problems with the Human Rights Act, which is inherent in making principles the way in which we determine specific rules, is that they are uncertain. The other is that the effect of the Human Rights Act is that politicians, who are the people you would expect to exercise leadership on a question of law, in fact lose ownership of the principles, because they see the uncertainty as creating a risk that policy will fail, and they resort to either avoiding taking responsibility for policy or delegating it to the courts or officials. You draft something not because you want to make it clear what you want to do but to ensure that the courts can read it down if they want to. I think that results in people seeing that there is a tension between policymaking and human rights, when human rights should be integral to policymaking. I am not against human rights. What I am in favour of is politicians owning them. That is one reason why I think section 3 needs to go.
Chair: It is slightly the trap of the straight banana.
Sir Stephen Laws: Just because something is a good thing, forcing people to do it by law is not always the sensible thing to do.
Baroness Hale: There is an awful lot to unpack in that, isn’t there? I am not convinced that opposition to the Human Rights Act or the failure to embed the Human Rights Act in public consciousness is as great as has been suggested. There is opposition from certain parts of the media, much of which will have to do with the effect of the Human Rights Act in increasing privacy rights, which of course the conventional media don’t like—though they are getting very used to it. Sometimes they invoke those rights themselves. There is the question of when it becomes a little bit more difficult for politicians to do what they would like to, but the Human Rights Act has a great balance with the supremacy of Parliament, which can legislate in whatever way it wishes, and if it happens to be incompatible with one of the convention rights or some provision appears, the courts cannot strike it down. Unlike the courts in almost every other country in the developed world that has a written constitution, our courts cannot strike down provisions of an Act of Parliament.
So politicians can promote the legislation they wish to promote. The only problem with it is that it may face a challenge in court, and the courts may criticise it from a human rights point of view. But what is wrong with that? That seems to me something that politicians should always be thinking about. This country is committed to remaining a member of the Council of Europe and, therefore, a party to the European convention on human rights. If that is this country’s commitment, then it should be pleased that that commitment is translated into rights that ordinary individuals can vindicate by action in the courts.
Q49 Stephen Farry: Good morning to our witnesses. Can I pick up on a point Sir Stephen made in relation to the attitude of Northern Ireland to the Human Rights Act? Speaking as a Northern Ireland MP, I certainly do not recognise your comments at all. There is considerable support for the Human Rights Act in Northern Ireland. I would just caution against conflating the absence of the supplemental Northern Ireland bill of rights with concern about the Human Rights Act specifically. Does Sir Stephen have any empirical evidence to suggest or back up what he just said about opinion in Northern Ireland?
Sir Stephen Laws: It was based on my reading of the report of the ad hoc committee, which seemed to me to illustrate that the issues that stopped it from coming to any conclusions were very similar issues to those raised by this Bill.
I haven’t got round to saying it yet, but I think it is important that I should tell you what I think the main thrust of the Government’s Bill is and what it does, because its main thrust is to set up a framework for the exercise of the margin of appreciation and for subsidiarity in accordance with the Brighton declaration.
Lady Hale rightly says that all other countries have their own constitutions with their own human rights provisions—we do not. And included among those other countries that are relevant in this context is the Republic of Ireland. We do not have a framework within which the courts can decide when they will depart from Strasbourg jurisprudence.
Instead of that, we have at the moment a system in which the Human Rights Act says that you must take something into account, but a rather weird doctrine that says that an obligation to take something into account can be complied with by thinking about it and then taking into account something else as being more important, which the courts rarely do, for obvious reasons, and what amazes me is that they think they can do it at all.
The Republic of Ireland has historically had to cope with tensions between its constitution on issues such as divorce and abortion and what the Strasbourg Court was saying, and has had to involve political processes in moving on from that tension. We do not do that. We have to accept what the Strasbourg Court says, because the whole structure of the Human Rights Act is to pursue its objective of ensuring that the UK does not have to fight and does not lose cases in Strasbourg, whereas the other objective of the original Human Rights Act, which was to set up a domestic human rights culture about which there could be a dialogue, gets no mention at all in the Human Rights Act. And I think the Government’s proposals are designed to restore, or to provide, a different balance between the objectives of dialogue and compliance. That is why I am broadly in favour of much of the Bill.
Q50 Stephen Farry: Okay. I was going to ask both of you for your views on the wider issue of the compliance of the proposals with the Good Friday agreement. I am particularly conscious, Baroness Hale, that you have referred to this potentially as a reversal of the Belfast agreement and complicated. Can I ask you to give a little bit more detail about your concerns, or otherwise, if that would be the case, in relation to things like accessibility, the importance of the Human Rights Act to policing reform and criminal justice reform—as the Human Rights Commission in Northern Ireland just outlined this morning—and also the particular context on the island of Ireland, in terms of the north-south aspect, with the two different jurisdictions and potential divergence in terms of rights?
I will maybe start with you, Baroness Hale.
Baroness Hale: Well, the concern is that the Belfast/Good Friday agreement contemplated that the protection of fundamental human rights would be the same north and south of the border, and that was put into effect by the Human Rights Act in Northern Ireland and by legislation in the Republic of Ireland. Both of those translate the convention rights, including the role of the European Court of Human Rights, into the domestic legal system.
This Bill is designed to bring about the possibility of divergence between the protection of human rights as provided for in Europe and the protection of human rights as provided for in the United Kingdom. That seems to me to be inconsistent with the promises in the Belfast/Good Friday agreement.
I must also add that of course I do not accept what Sir Stephen says about the margin of appreciation, but then you wouldn’t expect me to.
Q51 Stephen Farry: Sir Stephen, what is your opinion of the Good Friday agreement question?
Sir Stephen Laws: I’m afraid I don’t accept that the Bill is designed to produce divergence. As I say, the Bill makes the UK system closer to the Irish system, where there is this framework—the Irish constitution—against which you can test what Strasbourg has said, and if there is a divergence, you have to find a political solution to it. On the Belfast/Good Friday agreement generally, I have already said that I think it is important that it should be respected in the way this Bill proceeds, but broadly speaking I think the result is the same.
If we are looking for consistency between the Republic and Northern Ireland, it is worth saying that the Republic has a version of section 3. As the Committee knows, I was a member of the Independent Human Rights Act Review panel. As I understood it in the course of our consideration, it is understood in the Republic to have a much more deferential meaning in relation to the intentions of the Irish Parliament than the UK courts have found in the case of the section 3 that applies here, even though the Republic version of section 3 uses words that were rejected in the United Kingdom because it was thought that they would give more discretion to the courts than the words that were actually used. Those words are used in the Republic’s legislation and are construed to give the courts less discretion.
Q52 Claire Hanna: Thank you very much to both our witnesses; it has been very interesting. We have touched on this a bit, but the Government stated in their impact assessment that they will keep the convention rights enshrined in UK law. In your view, is that consistent with the Belfast/Good Friday agreement? Do the proposals diminish rights under the European convention that have been incorporated into Northern Ireland law?
Baroness Hale: Certain provisions in the Bill do diminish the substantive contents of the rights as they currently are in UK law. The principal example of that, as the commission has already explained, is in relation to positive obligations. Certainly most, and probably all, of the convention rights involve an element of positive obligation on Governments and public authorities to provide the machinery for protection. That is particularly true of the three most important rights: the right to life, the right not to be tortured or subjected to inhumane or degrading treatment, and the right not to be held in slavery or servitude. Those have all been interpreted to include positive obligations on the law and the country to provide a framework of protection for those rights, and in certain circumstances to protect individuals from an imminent threat to those rights—an imminent threat to life. The Bill says that there must be no new positive obligations, but it also says that even the existing positive obligations need not be applied by the courts if, taking into account a range of factors, they think it is not appropriate to do so. This is bound to diminish the protection that is currently available under the Human Rights Act.
Added to that, as again the commission has pointed out to you, there is the requirement to get permission before bringing proceedings to show a significant disadvantage. You don’t have to get permission to bring proceedings for a breach of your ordinary rights, so why should you have to get permission to bring proceedings for a breach of your most fundamental human rights?
Q53 Claire Hanna: Thank you; that is very clear. Do you have anything to add, Sir Stephen, or is there anything you disagree with?
Sir Stephen Laws: I think there are three aspects to what Baroness Hale has said. First of all, I would not go out of my way to try to defend what is said in the Bill in relation to post-commencement positive obligations, because while I am not sure I can see quite how wide it goes, I can see a case for saying that it goes too wide.
In relation to pre-commencement obligations where there is a series of tests for deciding whether or not they apply, I think they are a legitimate response of the UK Government to the fact that the European Court of Human Rights has a tendency to create new positive obligations. It seems to me it is appropriate for the UK, with our constitutional settlement, to say, “These are matters that should only be created once there has been political input in the United Kingdom.” I am in favour of political input in the United Kingdom for creating new positive obligations, because that is the way I think they gain public acceptance, consensus and adoption.
As for consent to proceedings, I am not generally in favour of rules of standing as ways of controlling the way litigation proceeds. Generally speaking, it is a blunt tool that is easy for both litigants and the courts to work around when they want to, and there are better ways of securing that people do not use litigation purely as a political campaigning tool. On the other hand, I note that the Government’s rule is equivalent to the rule that applies to people seeking individual remedies in the European Court of Human Rights, so I am not sure that very much can be made of how it diminishes individual rights enforceable under the convention.
Q54 Stephen Farry: To return to the issue around direct access to the courts under the convention, just to ask both of you, first of all, do you think that the proposed Bill of Rights will create an imbalance between Parliament and the courts? Secondly, is there the potential that we could see a greater volume of cases that perhaps previously would have been resolved domestically now finding their way to Strasbourg instead, and what are the implications for that in terms of either jurisprudence or the technical barriers to access to justice in Strasbourg, and also the costs and timescales involved? Baroness Hale?
Baroness Hale: It seems quite likely that the Bill would result in more cases having to go to Strasbourg, because they would not succeed here in circumstances where they would succeed in Strasbourg, or they would have a reasonable prospect of success in Strasbourg. This is because of the diminution in the content of the substantive rights that we have already talked about, and the possible effect of the requirement of permission before bringing proceedings. I completely take Sir Stephen’s point that the criterion for granting permission seems to be designed to reflect Strasbourg’s criterion for deciding whether or not an application should go ahead, or whether it is manifestly without reasonable foundation. Nevertheless, it seems to me very likely that more people will lose here, and therefore more people will try to go to Strasbourg.
As the Commission pointed out to you, the effect of taking the UK to Strasbourg is very different from the effect of winning a case here. The effect of winning a case here is that you get a remedy. The effect of taking the UK to Strasbourg is that the result in the original case which you brought in the courts here stands, but the UK may have to pay you some compensation for the violation of your rights, although that does not always happen, and it may have to consider changing the law or practice to accommodate those rights. That is a very different thing from having a direct remedy before the courts in the United Kingdom.
Stephen Farry: Sir Stephen?
Sir Stephen Laws: I think it is inherent in my approach to this matter that there will be more cases that go to Strasbourg. My thesis is that what is important to do is to change the balance between preventing cases from going to Strasbourg and being lost there, and having a dialogue about the individual aspects of the UK system that need different treatment.
I think it was Lord Brown who pointed out that the Government has no right of appeal to Strasbourg: when it loses in the domestic courts, it has lost. It seems to me that there is room for more cases to go to Strasbourg, so that questions that are not certain when they are decided in the English courts are not, by default, decided in a way that says, “Well, that’s the way the European Court of Human Rights is moving, and we must move the same way there; otherwise, we might lose.” We could say, “Actually, according to our normal system, that wouldn’t be a case that we would lose, so let it go to Strasbourg so that we can see, when confronted with the facts and with the fact that that is not what the UK system would normally support, whether the European Court of Human Rights does decide it.”
Yes, more cases will go to Strasbourg, but I think that is all part of the extension of respect for the margin of appreciation and the doctrine of subsidiarity, which the Brighton declaration required.
Q55 Stephen Farry: In terms of those people who have had their rights infringed, do you have concerns about the added delay in accessing justice in Strasbourg, taking the point that Lady Hale has made in relation to the remedy? We have often heard the phrase, “justice delayed is justice denied.”
Sir Stephen Laws: Well, yes, but when you do not know what the right is—this is the problem that confronts people making political decisions: they do not know what the law is going to be. If you do not know what the law is until you have litigated it up to the place where it can be decided—that is something that confronts us all. If you have to take it to the Supreme Court to find out what it is, justice is delayed. I am afraid that is a price that is worth paying for getting the law right.
Baroness Hale: I just wanted mildly to respond. This Bill is going to operate in cases where we know perfectly well what the law is at present, and it is going to diminish the protection that is already clear in the law, so it is not a question of lack of clarity. Also, one of the features of our constitution is that if the courts go too far and do something that Parliament does not like, Parliament is free to put it right. It can always do that.
Sir Stephen Laws: I am afraid I have to come in and disagree. That is the position in theory; it is not the position in practice. Nor, indeed, is it the position that the UK Government argued for in the case of Burden in the European Court of Human Rights, where it argued that a convention had already developed that required the British Government to introduce legislation to rectify any declaration under section 4. Indeed, that was also partly accepted by the Supreme Court. It is implicit, I think, in some of the judgments in Nicklinson, where the Supreme Court decided not to make a declaration because if it did, the Government would have to act on it. One has to distinguish the theory from the practice, and the practice is that Government will always—with a couple of exceptions that we know about—fall into line if it loses a section 4 declaration. At times, it has thought that it was constitutionally required to.
Baroness Hale: Well, Government has indeed been commendably anxious to comply with declarations of incompatibility. The reason for a declaration of incompatibility is either that it is already clear that the UK will lose in Strasbourg or that it is very likely that the UK will lose in Strasbourg, and therefore if the Strasbourg Court rules against the UK, the UK has an international law obligation to comply with that judgment. It is not surprising that the practice of complying with declarations of incompatibility has developed, but I remain of the view that they do not have to. There have been one or two occasions where they have not, and it is always up to Parliament to decide what to do.
Sir Stephen Laws: I just want to comment—
Chair: Sir Stephen, this is not a moot at the Middle Temple; this is a Committee of the House of Commons, so through me if you do not mind. I will let you have a right of reply.
Sir Stephen Laws: I only wanted to say that the Bill, in clause 3, does deal with bound to lose in Strasbourg.
Q56 Chair: Lady Hale, is there a concern, or is it too Machiavellian to suggest, that if one were to see an increase in applications to Strasbourg, that might strengthen the argument of some of those who would advocate leaving the ECHR?
Baroness Hale: I do not think that that is anything on which I could possibly comment.
Q57 Chair: In the words of Father Jack, “That would be an ecumenical matter.” Sir Stephen, you can hear the political narrative building on it, can’t you?
Sir Stephen Laws: I can hear it building on it. Being on the independent Human Rights Act review panel involved a unique experience for me: I had hundreds of people telling me that there was an Act of Parliament that was so perfect that it did not need to be amended. I had never come across that in relation to legislation before. I do think that intransigence to the idea of any reform is the approach that is most likely to lead to the argument that we ought to leave the convention, and you can see that argument building. Indeed, I can’t remember who said it—it was probably some philosopher one is not allowed to mention—but they said that the lesson of history is that we learn nothing from history. If recent history has told us anything, it is that saying, “It is no change or cataclysm” is most likely to persuade people to opt for cataclysm.
Chair: I hope we are not going down that road.
Sir Robert Goodwill: I am conscious that today is the day we have Prime Minister’s questions, and this evidence session has shown that it is possible to disagree politely and show courtesy to each other. I hope that will be an example to us all.
Chair: Get on with it.
Q58 Sir Robert Goodwill: I turn to the protocol and the commitment in the protocol that there will be no diminution of rights in article 2. How would that stack up with the Bill of Rights Bill, which we heard in the first session is a contradiction?
Baroness Hale: I have already made clear that I agree with the commission that the Bill does contain a diminution in rights, and it is therefore difficult to reconcile with not only the Belfast/Good Friday agreement but article 2 of the protocol.
Sir Stephen Laws: I think I have also said all I have to say on this. I do not think article 2 of the protocol could be construed as imposing any more obligations than the Belfast/Good Friday agreement does itself. It is supporting that, not supplementing it. I think that the whole issue of compatibility with the Belfast/Good Friday agreement needs to be sorted out in the spirit of and with the mechanisms available under the Good Friday agreement. I note that the Northern Ireland Human Rights Commission’s powers include the power to volunteer advice to Government on article 2. The commission does not have to wait to be asked. I assume that it will make use of that facility quickly.
Q59 Sir Robert Goodwill: On the basis that justice delayed is justice denied in many ways, is it likely that people seeking to have their rights recognised in a British court will get to court more quickly? Sometimes we see very quick cases coming up in Strasbourg, but in other cases it seems to be years before people get their judgment. Is it likely that we see more rapid justice for people by using the British courts rather than Strasbourg?
Baroness Hale: That seems unlikely, because on the whole this Bill is designed to make it more difficult to bring cases before the UK courts than it is currently through the mechanism of having to get permission. Also, the new ways of interpreting the existing rights and the provision on positive obligations will make for more uncertainty and take longer for the courts to resolve. There is an awful lot that is now quite clear under the Human Rights Act, and this will open up uncertainties, so I don’t think it will make things any quicker.
Q60 Sir Robert Goodwill: If permission were denied, what recourse would there be? Would it end up in the Supreme Court?
Baroness Hale: If permission is denied, usually there is one tier of challenge, but it is not going to end up in the Supreme Court. That means that domestic remedies may be exhausted earlier than they would or could under the current system, so people may be able to go to Strasbourg sooner than if they were here, but that is on the assumption that they have a good case.
Q61 Sir Robert Goodwill: Understood. Stephen, can you comment on that?
Sir Stephen Laws: For the reason I gave earlier, if people do not get permission in the UK courts, they will not get permission in the European Court of Human Rights. One of the main problems with a lot of the discussion on the Human Rights Act is that it all concentrates on whether cases can be decided and when they are decided. When I was drafting legislation, my objective was always to ensure that people did not have to litigate in order to find out what the legislation meant.
I note that Lady Hale says that some parts of the human rights regime are clear, and where they are, that is a good thing. Unfortunately, great chunks of it are unclear. In IHRAR, we spent 600 pages trying to explain how the thing worked, and we had to change the description of how it worked several times in the run-up to publication, because the thing turned out to be a moving target in the Supreme Court. Other members of the panel seemed to think that this showed flexibility and subtlety, which was a good thing. I thought it showed legal unpredictability and instability, which was a bad thing. I think the way to stop people having to litigate their rights is to make sure they are set out as clearly as possible, so that people do not need to litigate them in order to enforce them.
Q62 Chair: We now go into dangerous territory; we have a former Lord Chancellor and president of the Supreme Court, so heaven knows where this will end. It is now time for Sir Robert Buckland.
Q63 Sir Robert Buckland: Thank you, Chair. I have been resisting the temptation to become a witness. First, I have to thank Stephen for being part of the panel that I set up, which was chaired so well by Sir Peter Gross. It is important to note that we had the services of Baroness O’Loan, who is well known to everybody in Northern Ireland, and Professor Maria Cahill, from University College Cork, to provide that Irish Republic dimension, in particular with reference to the Irish constitution that Sir Stephen has referred to in his evidence. The result, I think, was an extremely balanced piece of work. As Sir Stephen has said, it did not say that the Human Rights Act was perfect. It proposed a degree of reform, which I support. Reform is something I want.
I will stay faithful to my brief. My question is about the potential effect of this Bill of Rights proposal—I have gone on record saying that a lot of it is of concern to me—on the legislative competence of the Northern Ireland Assembly at Stormont. Obviously, the question of a legislative consent motion is one thing; another is the ongoing role of the Northern Ireland Assembly, when it hopefully comes back to life, in the passage of legislation. Of course, the Human Rights Act is a competence for the UK Government, but are there not implications that could roll out in a way that could, putting my cards on the table, cause confusion? I would like to hear what the witnesses’ view is of the effect of the Bill on the competence of Stormont.
Baroness Hale: Obviously, Stormont does not have competence to make laws that are incompatible with the convention rights. Currently, in the Bill, the definition of the convention rights is the rights set out in the schedule, which is the rights contained in the European convention. The question arises: is Stormont’s competence limited by what UK courts say the convention rights mean, or by what Strasbourg says the convention rights mean? That is the uncertainty at present. But obviously that is an uncertainty that could be cured by amendment to the Bill.
If the rights are restricted—I believe the Bill does restrict them—then it might increase the competence of the Northern Ireland Assembly. It could do something that was incompatible with the rights as they are at present, but compatible with the rights as they are under the new UK regime. It is all a little complicated. I think it is a question that could be solved by amending the Bill to make it clear which of the two the legislative competence is tied to.
Q64 Sir Robert Buckland: Sir Stephen?
Sir Stephen Laws: I do not think that the Bill makes any difference to the provision in the Northern Ireland Act, which is amended by the Bill, for the competence of the Northern Ireland Assembly. That is important because it is one of the few detailed provisions of the Belfast/Good Friday agreement that the Northern Ireland Act should be capable of being challenged on grounds of being incompatible with convention rights.
My analysis of what the Bill does is not that it changes the rights and requires them to be interpreted in a different way, but that it provides mechanisms by which the UK Government can assert subsidiarity and margin of appreciation in a wider variety of cases. It is not changing the rights. I do not think there is any issue between the Human Rights Act and the Bill as to whether you adopt the convention—the Strasbourg—interpretation of the rights or the UK interpretation. That is an issue that exists at the moment under the Human Rights Act. At the moment, I think the whole context of the Human Rights Act requires you to conform to the Strasbourg view, because it is set out as a whole load of international obligations, and derogations and reservations are applied.
Everything in the Human Rights Act—not just section 2 but the whole context—requires you to construe the convention rights as being the same as in Strasbourg. Much of that is retained. The schedule sets out words about “this convention”. It does not try to restate them for the United Kingdom. I think the issue is the same as it is at the moment—it is not different.
Sir Robert mentioned the fear that approaching this Bill might give rise to the courts going further with the convention rights in the schedule. I think that is a genuine fear, and a lot of people who agree with me about a lot of the other issues we have discussed are really worried about that. I am not as worried about it, because once you know what the risk is, you can make provision to ensure that the risk is dealt with in the way that you would like. It is a risk that needs to be considered, but you then need to see whether you have done enough to ensure that it is a risk that does not manifest.
Q65 Sir Robert Buckland: But if the Bill is amended—this Bill’s scope is visible from space—we could end up with a completely different animal. It would not just be a framework; we would end up with potentially new domestic rights—to abortion, or new socioeconomic rights, for example—that suddenly do change the situation. It then becomes more than just a framework Bill, and becomes the sort of progenitor of some new domestic genus of rights. That is a legitimate worry, isn’t it, for those who might share my point of view? I know not everybody does.
Sir Stephen Laws: If Parliament has voted for that, then it has voted for it, so I would have to accept that. I mean, I wouldn’t welcome it, but I have to be consistent. Parliamentary sovereignty means parliamentary sovereignty, and if it comes up with the wrong answers, then we have to accept that.
Chair: We might be sovereign, but we are not always right.
Sir Stephen Laws: Yes.
Chair: That could be my family motto, I suppose. Robert, have you finished?
Sir Robert Buckland: Well, I have, but there is so much more I would like to discuss with the witnesses.
Chair: We have a few minutes left.
Q66 Sir Robert Buckland: Sir Stephen mentioned his preference for removing section 3 and the read-down provision. Again, for the record, I agree with that. I have never been comfortable with it. Lady Hale might be able to help, as somebody who has used this in practice in the court. What would be the objection to getting rid of it? Surely the court would find another way of making its view clear about the compatibility or otherwise of the legislation, and then simply say, “Well it is for Parliament to sort this mess out, not for us to read down”? Sorry to parenthesise, but I remember the case of A, back in the House of Lords; the provisions of the Criminal Justice Act restricting the right to cross-examination in rape was somewhat transmogrified by the House of Lords in a way that I do not think legislatures, including Harriet Harman and others, ever envisaged.
Baroness Hale: Yes, well, I am afraid that I too would consider that case to have gone too far, and to have used section 3 much further than it was contemplated that it would be used, but I do not think that is a typical example.
A more typical example is the Ghaidan and Godin-Mendoza case, where the House of Lords interpreted “living as husband and wife” to include a marriage-like relationship between a same-sex couple, which I believe most people would now consider to be a correct possible interpretation of that language, although one member of the House of Lords did not.
My experience of section 3 was that the Government always, or almost always, argue for the court to use it. Ghaidan and Godin-Mendoza is a particularly strong example. Philip Sales, who was the Treasury devil, intervened in the case, and argued very strongly for the interpretation that the House of Lords adopted.
In my experience, the Government’s view tended to be, “This is compatible with the convention rights, but if it is not compatible with the convention rights, please, o court, will you solve that for us, and read the legislation down?”, rather than putting the ball in the Government’s court and Parliament’s court to decide what to do about it.
Q67 Sir Robert Buckland: When you put it like that, Lady Hale, my view is that it is Parliament and the Government passing the buck to you and the court.
Baroness Hale: Yes, it was.
Sir Robert Buckland: And I think that is not right.
Chair: That might be a good place to end our proceedings, because Sir Stephen, Lady Hale and Sir Robert Buckland have nodded—although I now have a hand of despair from Sir Stephen.
Sir Stephen Laws: I agree that it is the Government passing the buck. This is one case where Lady Hale thinks the Government should have what it likes, and I think it shouldn’t.
I just want to say that it is very important to distinguish between the vast majority of cases on section 3, which are to do with legislation passed before 1998, and those to do with legislation passed after 1998, because the only effect of section 3 is to produce results that the normal rules of construction about parliamentary intention do not produce. In relation to Acts passed before 1998, the Human Rights Act was a gloss—a general amendment. In relation to Acts after 1998, they are dealing with legislation where we know that Government has, in the words of the House of Lords in Simms, squarely confronted the issue of human rights and has come up with something that it thinks is compatible.
It seems to me that if the courts disagree on those cases, the right thing is for the courts to refer the matter back to Parliament. I think all those post-1998 cases need to be sent back to Parliament under section 4, rather than to be surreptitiously amended by the courts in a way that necessarily disagrees with the way that Parliament thought it should comply with the Human Rights Act.
Chair: Right. We could sit here, send out for tea and cake, and continue this for hours, but time ticks on, and Prime Minister’s questions beckon, as do other things.
Sir Stephen and Lady Hale, thank you so much for joining us this morning. Thank you for giving us the benefit of your views and your collective wisdom on this important issue. We are very grateful to both of you for doing so.