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Speech to the Guernsey International Legal Association

The Royal Court St Peter Port Wednesday 10th February 2010

The European Convention, the Human Rights Act and the Experiences of the UK: Some Possible Lessons for Guernsey?

For BBC News Coverage of Cherie's Visit to Guernsy click here

Thank you so much for inviting me today to talk to you about human rights - and for this chance to visit Guernsey.It is very strange, given that in the last three months alone, I have been to India, the US, Dubai, Kuwait and Bangladesh that I have never been here before.
If I am allowed to admit this, I have also made several visits to Jersey both for legal conferences and for charity events.But for some reason, never to Guernsey. It is an oversight I am glad to have corrected both for the beauty of the island and the warmth of the welcome.
This evening I want in particular to talk about the special position of Guernsey in relation to international conventions and the UK Human Rights Act.
Now human rights is a subject which, rather like myself in the UK, can get a very bad press.In the case of human rights, such distortions are not only undeserved but, in fact, damaging to us all. The main channel for this criticism, of course, has been a vociferous campaign against the UK Human Rights Act whose 10th anniversary we mark this year.
The provisions of the Act are largely mirrored - with specific adaptations and modifications - in the Human Rights (Bailiwick of Guernsey) Law, 2000 which came into force in September 2006. I am delighted to hear that the reaction in Guernsey has been nowhere near as hostile.I wonder whether this is partly because this island has a collective and relatively recent memory of the horrors when those rights are ignored - a fate the UK escaped in the Second World War. But it is not just the Human Rights Act which has found itself the target of a campaign of hostility, vitriol and misinformation. It is human rights themselves. They have been portrayed as only benefiting terrorists, murderers or welfare fraudsters, preventing justice and insulting the victims of crime.Huge publicity is given to cases where, for example, prisoners use the HRA to demand their rights.Hardly a word, however, is printed or broadcast when the courts routinely throw out such claims as frivolous.We see, too, suggestions that rights are a one way street or without limit.Both are untrue. For inherent in the very concept of human rights is that they also come with responsibilities, not only to other people but to all of society. Indeed the Lieutenant Bailiff, John Russell Finch recently made the point that those who talk of the European Convention as a “ Charter for undesirables and an unwanted rein on the discretion of public bodies to act in the proper execution of their functions” had got it wrong. He rightly pointed out that actually the Convention contained an important element of balance, which courts needed to bear very clearly in mind.He went on to quote Lord Steyn that ”rights are not unlimited; we live in communities of individuals who also have rights. And, of course, the vast majority of rights simply cannot be absolute for the simple reason that an individual’s rights frequently conflict with those of others and of society as a whole. My right to express my opinions and views about someone, for example, may conflict with their right to privacy.Judgments on competing interests have to be made. Indeed the essential premise of human rights - and the role of the courts - is finding a just balance between the general interest of the community and the rights of an individual.
There is, of course, some truth in the allegation that human rights protect the marginalised and most vulnerable in our society. But it is only when these least favoured groups are protected can there be confidence that the rest of us will be protected. Human rights are an expression of our best impulses so as to guard us against our worst.They are principles to be applied without fear or favour no matter how difficult or testing times may be.Indeed, the modern origin of the legal concept of human rights can be directly traced to the horrors of World War II.These islands experienced first-hand the brutality and dehumanization of that terrible era.The newly founded United Nations was determined to identify fundamental individual rights and enshrine them in law to act as a buttress against any repeat of such barbarity.These rights are a recognition that we are all entitled to a basic level of respect and treatment simply because we are human.It is no surprise that Europe, which witnessed the full depravity of what happens when this respect is denied,took the lead.We saw the drafting of the European Convention on Human Rights and the World’s first specialised international human rights court. For the first time in history individuals could through an international tribunal, the European Court of Human Rights,hold the State directly accountable for how it had treated its own citizens.This is, of course, very familiar now but it is easy to forget what a revolutionary concept it was at the time.It is these right which the Human Rights Act and its Guernsey equivalent enshrine.This potted history tackles some of the greatest myths about human rights and the Human Rights Act.
It is clear it has nothing to do with the European Union. In fact it was signed six months before the European Coal and Steel Community - the EU’s forerunner - was even established.Nor was it imposed by a dastardly Brussels bureaucracy on a reluctant UK.In fact, British lawyers were very prominent - indeed were in the lead - in drawing up the rights it encapsulated.And finally, the Convention was nothing to do with a recent Prime Minister and close family member.
It was Winston Churchill, not Tony Blair, who was the leading light in the idea of a pan-European human rights charter.It was under Churchill’s Government in 1953, not New Labour, that the Convention came into force in the UK.
Huge advance as it was, the Convention was very much a product of its time.This is reflected in how it was extended to Guernsey.Buried away toward the very end is Article 56, known historically as the ‘Colonial Clause’.Under this, signatories could accept its application to those territories for whose ‘international relations’ they have responsibility. The Netherlands, for example, in 1955 extended the Convention to Surinam and what were then the Dutch West Indies - a long way from Europe.The United Kingdom also accepted that the Convention would apply to 43 territories from Aden to Zanzibar.Even though Guernsey was not, and never has been, a colony, the same clause was used to extend its provisions here.But although the UK was one of the first countries to sign the Convention, it lagged behind others in its operation.It was a full decade later before the UK accepted both the right of its citizens to petition the European Court of Human Rights and the compulsory jurisdiction of the Strasbourg-based Court - rights extended as well to those living in “overseas territories”Numerous cases have now been brought before the European Court under these provisions.These have included cases originating in the Isle of Man over the birching of juveniles and in Gibraltar for the failure to extend the right to vote in European Parliamentary elections.They also include, of course, this Bailiwick with regard to its housing laws and the powers of the Bailiff. But while one anomaly was dealt with in the 60s, another remained until a decade ago.The UK continued to be one of very few countries which forced its citizens to go to Strasbourg to have their case heard rather than dealing with it through our own courts.
This is,of course, partly due to our dualist traditions, where treaties must be incorporated into domestic law before they can be relied upon before courts and tribunals.Equally important, however, was the firm belief that common law was superior to, and protected rights more effectively, than the Convention system. However, over a period of time it had become apparent that this was not necessarily the case as some of the cases I have just mentioned illustrate.The Human Rights Act corrected this anomaly and brought the protection of human rights back home to the UK. The Human Rights Law of 2000 had the same impact in Guernsey enabling the courts here to uphold and enforce Convention rights.You can see the impact from the number of cases declared admissible by the European Court.Across Europe, between 2000 - when the UK Human Rights Act - and 2007 these increased fourteen times.During the same period, the number of cases from the United Kingdom fell from over 130 to just 13. It is ironic that many of those most hostile to the Human Rights Act would, in every other circumstance, applaud the recovery of powers from Europe to British courts.There is one other irony about the criticism.
I have already made the point that the rights protected by the HRA and the similar law here in Guernsey are not new rights but were signed up to nearly 60 years ago.But many far from being alien, as is often claimed, to our common law tradition are firmly rooted in it. One of the most important cases in English law in many years in the context of terrorism considered whether evidence obtained abroad by torture could be relied upon as evidence in our courts.The repugnancy shown by their Lordships to such evidence was as heavily based upon centuries-old common law principles as upon the prohibition of torture in Article 3 of the European Convention on Human Rights.But human rights, of course, are not solely about litigation. Indeed, redress to the courts, it could be said, comes when rights have failed to provide the protection needed.They are breached when children are denied a good education, when the elderly face discrimination in services, when louts leave a community in fear. hey should help us improve public services for all of us.These protections are most powerful not when Courts intervene to uphold them but when they are an intrinsic part of decision-making, policies and practices. It was why the coming into force of the Human Rights Act in the UK was delayed for two years to ensure sufficient awareness of Convention rights existed among public authorities. I was interested to see that here in Guernsey the delay was six years. It was persuasively argued that this delay would allow for detailed audits of relevant legislation, policies and practices and to identify the need for new or amended legislation. Such a proactive and progressive approach to ensure compliance with Convention rights before the Human Rights Law came into force should be wholeheartedly welcomed.With the extra time to provide detailed guidance and improve awareness and training, I am sure rights have been mainstreamed into the decision making process which should prove beneficial to everyone. While we are not talking about new rights here, they do, of course, place new responsibilities on the courts.
Human rights legislation, whether in New Zealand, Canada, the UK or Guernsey, has brought the judiciary into new - and challenging - areas.It is not just in the UK but also, for example, in Canada where adjustments to the constitutional balance of powers has been controversial. We have seen an outcry, both from politicians and the media, about un-elected judges usurping the powers of Parliament. But democratic States require members of the judiciary to be independent and impartial in upholding the rule of law precisely so they can not be pressurised or favour one party or the other.
As Lord Philips noted last month, when there is a clash this should not be considered judicial interference with the will of Parliament. On the contrary, he said “it upholds the supremacy of Parliament in deciding whether or not measures should be imposed that affect the fundamental rights of those in this country.' This has led already in the UK to a more enhanced “democratic dialogue” between the Courts and the legislature - particularly when the courts find themselves unable to construe legislation compatibly with Convention rights. Such declarations of incompatibility are, of course, judicial weapons of last choice. It is no surprise that here in Guernsey, after such an extensive and thorough review of legislation and practice before the Human Rights Law came into force, that no such declaration have yet been made. But if and when it does happen, the Courts in their judgement will rightly take into account the particular constitutional framework, history and culture of Guernsey.
I know there is a fear that these special circumstances will be ignored.But from my own experience, I can give you an example of the diversity of judgements. Four years ago I appeared before the House of Lords, as it then was, in a case which attracted international media attention and involved a girl called Shabina Begum.Shabina,is a devout Muslim and wished to attend school wearing a long, coat-like garment known as a jilbab.She insisted that only this type of garment met her religious requirements as a Muslim. The jilbab was not however one of the uniform options in her school’s dress code. Shabina was, therefore, sent home to change.She refused. The deadlock continued for two years. She stayed at home. The school made it clear that she could only return in the correct uniform.She contended that this amounted to exclusion from school and breached her human rights, particularly her right to freedom of religion.
The two major issues to be determined were whether the dress code was an interference with her religious freedom and, if so, was this interference justified.
I was representing Shabina. Having won in the Court of Appeal, we lost in the House of Lords. The majority of the Law Lords, after reference to the jurisprudence of the European Court of Human Rights found no interference with her right to manifest her religious belief.They went further and said even if there had been interference, it would have been justified for the protection of the rights and freedoms of others.This was clear-cut, you might think. But this decision can be contrasted with the conclusion of the Supreme Court of Canada, which by coincidence considered a very similar scenario in the same month. Here the child, Gurbaj Singh Multani, was a 12 year old Sikh boy, who believed that his religion required him to wear at all times a “kirpan” - a symbolic metallic object resembling a dagger.The school would not allow him to do this even if he kept the kirpan sealed and inside his clothing, saying it violated the school’s code of conduct which banned the carrying of weapons .His father again alleged that this decision interfered with his son’s right to freedom of religion under the Canadian Charter of Rights which contains provisions almost identical to those in the European Convention. So the two main issues were the same as in the Begum case. The outcome, however, was very different. The Canadian Supreme Court found in the boy’s favour.They concluded that the total prohibition against wearing a kirpan undermined the value of this religious symbol and sent out a message that some religious practices did not merit the same protection as others.They added that allowing him to wear his kirpan under certain conditions demonstrated the importance society attached to protecting freedom of religion and to showing respect for its minorities.So they found they said that “the deleterious effects of a total prohibition outweigh its salutary effects.” What can we learn from the different outcomes of these very similar cases except that Grubaj Singh appears to have had more persuasive lawyers??!!It is that the fears of those who believe the unique characteristics, of individual countries and states will be ignored by the courts are overdone. It is instead clear that the exact balance that is struck by courts in giving effect to human rights provisions is a reflection of among other things the history, culture, political philosophy and the nature of each country. So notwithstanding the very close links between Guernsey and the UK, it is by no means inevitable that decisions reached will be the same. Indeed an obvious point of departure is the fact that some rights issues in the UK are dealt with, strictly speaking, under the terms of membership of the European Union which does not apply to Guernsey. Anti-discrimination law in the UK on employment matters, for example, has been fundamentally enhanced and strengthened following the implementation of EU directives into domestic law and the judgments of the European Court of Justice.I am aware that legislation which seeks to eliminate discrimination has also been adopted here in Guernsey through The Prevention of Discrimination Law, 2004 [Prevention of Discrimination (Enabling Provisions) (Bailiwick of Guernsey) Law, 2004]. But because of the UK’s membership of the EU, the scope of anti-discrimination law is in practice appreciably broader. It covers rights in the workplace which historically have been perceived as an area covered by economic and social rights treaties rather than by a civil and political treaty such as the European Convention on Human Rights.
While the European Court of Human Rights has long maintained that the compartmentalisation between civil and political rights and economic and social rights is arbitrary and difficult to sustain, it is difficult for the Court to expand its remit under the Convention. In seeking both to complete the internal market and to respect fundamental rights, the European Union has to some extent stepped into the void and sought to implement effective anti-discrimination policies.This is a vexed area. For while anti-discrimination laws which apply to the work place may involve economic and social rights they also seek to uphold individual dignity and ensure individuals are respected. Discrimination in the workplace on the basis of race, disability or sex is as much an affront to human dignity as the violation of many other recognised rights. It would, however, require an extreme case of discrimination in the work place for it to amount to degrading treatment in Convention terms. The discriminator would also have to be public authority
In Guernsey, the Human Rights Law may well provide a remedy to public sector employees in areas where existing anti-discrimination legislation does not extend.
This would leave those in the private sector unprotected against similar practices.
You could well imagine that such an anomalous position may have a ‘spill-over’ effect and lead to pressure for further change in the law. But crucially it would by and large be for the authorities here to determine how that would be done.
So I believe that there is enough independence to allow the special conditions of each country to be taken into account. I think as well we need to recognise that Convention rights do not impose unnecessary obligations as some claim but simply define essential minimum standards which all civilised societies must seek to protect. And this brings me on to my final point - a plea for everyone, no matter what their specialism within law or indeed their profession to join the battle to underline the importance of human rights to us all.
The term human rights, as I have suggested, is now part of our everyday language.It is a term rightly used all the time by our national and international leaders.But it is also used when people are unhappy about their treatment by public authorities or officials - or think they have been unfairly given a parking ticket.We hear it all the time. The danger is that this familiarity trivialises their importance.
We need to reclaim human rights and put them back in the centre of our lives.To make clear that rights come with responsibilities - to others and to society as a whole. This was certainly the view of those who drew up the Universal Declaration of Human Rights on which our conventions and laws are based.The chair of the Commission was Eleanor Roosevelt, a heroine of mine and another wife of a politician who found herself in trouble from time to time for not watching what she said…She believed that unless human rights played a part in all our lives, guided us all in the way we behaved, they could not be the moral force needed in the world.
Human rights started, she said, in our schools and colleges, in our factories, farms, and offices for “such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination .
Unless these rights have meaning there, they have little meaning anywhere".
Her views over 60 years ago are just as relevant today.
Thank you.