Roger Smith on a mixed response to the proposition of extending human rights
Someone in the Ministry of Justice has a wicked sense of humour. Few journalists bothered to read Rights and Responsibilities: Developing Our Constitutional Framework. Indeed, many news outlets barely covered it at all. For example, it was largely ignored both by the BBC and The Times, though The Guardian gave it a two-page spread.
The author of the green paper may well have anticipated that it was going straight into the long grass. Gordon Brown has other things on his mind now that his early heady days of promising constitutional reform are all too firmly behind him. As a whole, the paper is a sensible discussion of the options raised by the idea of a domestic Bill of Rights and Responsibilities. But this is an idea that is going nowhere. Who wants a worthy but, ultimately, pointless recitation of existing rights and duties that will simply confuse the clear lines of the Human Rights Act 1998 (HRA 1998) and the European Convention on Human Rights (ECHR)?
Some intimation of the paper’s likely fate might have struck the drafting team by the time they got to para 2.63. Deep in the midst of a discussion of the potential advantage of national instruments setting out responsibilities comes the give-away passage. Economic duties, the paper explains, include matters like “duties to pay taxes; a duty not to claim benefits if able to work; and, if earning, to make national insurance contributions”.
The inherent pessimism behind the paper is indicated all too clearly by the choice of nation used as an example to indicate what might be done. This was, breathtakingly, Italy. Article 53 of the Italian Constitution apparently reads: “Everyone has to contribute to public expenditure in accordance with their capacity”. Tax evasion is, however, usually referred to as an Italian national sport. Its own Treasury estimates tax evasion at about a fifth of the country’s GDP; Fabio Capello, Silvio Berlusconi and, collectively, the gondoliers of Venice (as the by-product of allegations made during a very nasty divorce of one of their number) are, or have recently been, the subject of investigation for tax evasion. Thus, the value of the constitutional statement of principle is unclear.
Students are up for it
Students, in marked contrast to either the Labour government or Conservative opposition, are excited by the concept of human rights. Well over 200 turned up on a Saturday to the conference facilities at Freshfields Bruckhaus Deringer for the second annual conference of JUSTICE’s student human rights network.
Star of the day was Baroness Helena Kennedy QC who has not reached the eminence that she has as an advocate without being able to rouse an audience of willing students. She gave a powerful speech in defence of the HRA 1998 and civil liberties; urging continual vigilance.
One of the most interesting sessions of the day was the final discussion of careers in human rights. HRA 1998 has worked its way thoroughly through the legal system. A few lawyers might legitimately claim solely to be human rights specialists—some barristers, fewer solicitors, and a handful of lawyers in NGOs like JUSTICE and Amnesty International. However, it was clear from the presentations of Freshfields’ Patrick Doris and the College of Law’s Richard de Friend that every public or administrative lawyer must now be familiar with human rights jurisprudence—even in large corporate practice.
This pervasiveness of human rights in the legal system may yet have a political effect. David Cameron has to spell out exactly how he would carry out his repeal of HRA 1998 without altering the UK’s commitment to ECHR. Just at the practical level, this is difficult to pull off with any degree of legal coherence.
The court gets bogged down Supporters of ECHR are out in force. They want Russia to sign up to a protocol that will allow the judges to apply a filter process on cases which will make better use of their time. Jean-Paul Costa, president of the court, gave a lecture for King’s College London last autumn and was in action again in January at the opening of the court’s judicial year. He called for a major conference in the first half of 2010. The Swiss, who take over the rotating presidency of the Council of Europe in November, have just announced that they want to make greater accessibility and efficiency of the court their priority.
The problem is workload. In 1999, there were around just 8,500 applications to the court: there are now over 40,000. Since the court decides around 1,500 cases a year, it is rapidly going backwards. Around 100,000 are outstanding. There needs to be a way of using the 47 judges more effectively, splitting them into smaller benches and dealing swiftly with nonmeritorious or repeat applications.
Behind the caseload stands politics. The big offender is Russia. It is responsible for over a quarter of the outstanding cases and, as a consequence, is happy to use its power to block any reform that speeds up hearings. It is the only country holding out. However, Russia is shameless in using the court as a political forum when it suits: it seems very likely that the torrent of over 3,000 complaints against Georgia have been co-ordinated from Moscow. Historically, Turkey and Italy have the worst record of violations of the ECHR, accounting between them for about 40% of all negative decisions of the court. Russia is, however, catching up fast. The UK has rather a good record and comes in only at 12th in the list of countries against which the court has made judgments.
