British Bill of Rights

Debate between Lord Woolf and Lord Spicer

Thursday 20th June 2013 Lords Chamber

[Lord Woolf]

My Lords, I too warmly congratulate the noble Lord, Lord Lester, on his wisdom in selecting this subject for debate. I also acknowledge the contribution he has made to the development of human rights principles in this jurisdiction. He has been indefatigable in his efforts. He is part of the explanation for why we are in a situation today where the human rights principles that we have developed in this country are working reasonably satisfactorily, although there are undoubtedly problems.

It is a testimony to the noble Lord’s efforts that I can remember well the time when, appearing as an advocate and not in his role today, he educated the judiciary of this country as to the approach to human rights, which was not in accord with the way we traditionally used to approach legislation in particular. This was true of his advocacy in the highest court in the land, which, of course, at that time was part of this House.

I congratulate the commission on the report it has produced. It has been the subject of criticism by some but I venture to say that that criticism was not meant to detract from the fact that the commission is exemplary in the way it has conducted the process of consultation. It is also exemplary in the way that it has clearly explained the different opinions that its members hold and the way in which the issues are regarded by different parts of the community.

I have found it very difficult to decide whether I should agree with the majority opinion or the minority opinion and I am glad to say that today’s excellent debate has helped me in that matter. The report sets out the arguments against and in favour very clearly, but to hear them debated in the House in this way brings a new realism to me which I did not have before.

I see a situation where, excellent though the commission’s work is, there are serious dangers in approaching the matter in the way the majority have indicated in the report. That does not mean that the work of the report has been wasted. On the contrary, it is very important that the position of human rights is elevated into proper public debate. In saying that, I am not referring to some of the debate that takes place in the media for understandable reasons.

It is important, however, that the thinking public have an opportunity to see where the truth lies. I am not surprised that the attempts, when they are made, to assess the public’s opinion show that the position is rather different than a reading of the media, popular or otherwise, might lead you to believe. As often happens, the public are not so foolish as to think that a new Bill of Rights could achieve a position where we could disregard the European Convention on Human Rights, to which this country has adhered as far back as 1950.

It is important to understand that human rights are different from rights set out in ordinary legislation. They are fundamental to the way of life of this country—indeed, I would go so far as to say of all countries that purport to or do adhere to the rule of law. What is special about the rule of law is that when it talks of that subject it is, in my understanding, talking about those rules which should govern societies in general. The way they are applied and interpreted in different jurisdictions does not mean that they are better observed in one jurisdiction than another or less observed in one country than another. The rule of law requires that a society adheres to basic principles—principles which are the source of the European convention and many other conventions. They are the source of justice, the source of fairness, the source of proportionality and the source of many other matters that make our society one that up to now has been respected in many parts of the globe.

I have had the good fortune to be called upon to make two reports in regard to the European Court of Human Rights and can say I am fairly familiar with the standards it has adopted. This country, together with the Council of Europe, invited me to make a report when I ceased to be Lord Chief Justice, one of the first activities I had at that stage. In the course of it I interviewed individually most of the judges on that court, looked at various procedures and was well aware of the huge backlog of cases that they had. I found that the more I talked to those judges, the more impressed I became. I was convinced that they were concerned about the same things with regard to justice that I would expect a British or United Kingdom judge to be concerned about. Within the confines of a system they were called upon to administer, they did their very best to achieve the results which they were required to achieve in order to honour the principles set out in the European convention. Of course some of the decisions would be popular and some unpopular. I am afraid that that is true of a judge’s job. It has certainly been true of my period as a judge, when some of the decisions I made were extremely unpopular.

[Lord Spicer]

The noble and learned Lord is talking about basic principles. Does he have on or off his list retrospection as practised by the legal profession during the expenses affair in the Commons?

[Lord Woolf]

I am afraid I find it difficult to fit that in with what I am going to say as it is not on my agenda this afternoon. I hope the noble Lord will forgive me if I do not try to deal with that although I can see why he raises the matter. The issue of those expenses and the way they were dealt with—the principles of general fairness, honesty and integrity—are the sort of matters which human rights can reflect.

Taking up where I left off, the recommendations which I made on that first occasion were adopted by the European Court which did its best to do what it could with them. The second commission—and bearing in mind that I was on it, it was probably misappropriately described as the commission of the wise men—consisted of 10 people from different jurisdictions. I mention it to declare an interest, but more importantly to point out that although those 10 members were drawn from different nations, they all struggled to work together to produce results that would be beneficial to the court. They could not complete their task in so far as they were not in a position to provide an answer to all the problems. Those problems remain although they have been helped by what happened in Brighton recently and the declaration made there. The important point is that, despite the load of problems that the court has, the situation is better today than it has been for a long time.

I listened with great care to what the noble Lord, Lord Faulks, said about cost. I wish to mention two things. The judges to whom I talked in that court were at one in saying that the very best advocates who came before it were drawn from the United Kingdom legal profession. They were unstinting in their praise of our advocates who they said were so good at understanding the real core of human rights. However, they added that the cost of those advocates was totally disproportionate when compared with that of advocates drawn from other jurisdictions. Indeed, our advocates, of whom we are proud, are 10 times more expensive. Therefore, we need to be rather sensitive about criticising other countries’ costs.

We also have to be cautious about criticising the costs of the European Court, which deals with cases very economically. It is the quantity of cases that generates the costs. I have not done it but if you were to work out the cost of a case before a court here and the court in Strasbourg, I am afraid that it would reflect adversely on this jurisdiction. That is why we are introducing new methods of tackling costs in this jurisdiction because, unfortunately, our costs are so large. Therefore, I do not see that we can justify criticising the European Court on the ground of cost.

I apologise but I want to say one or two words more. If your Lordships will bear with me, I will deal with them as quickly as I can. My belief is that we must work towards obtaining the public’s confidence. The only argument in favour of a British Bill of Rights is that it would improve the public’s confidence in this area. If we do not succeed in doing that, the future of human rights in this country will be at risk. It is at risk at the moment and we must do everything which is practical and possible to ensure that the British public take possession of human rights and regard them as singling this country out as being pre-eminent on issues of fairness and justice. If they recognise that this is a relevant issue, this country has hope for the future. If they do not, this country is very much at risk of relinquishing its legal excellence.