Lord Falconer: "Human Rights and Common Sense"

Human rights and common sense

Harry Street lecture
Manchester University

Speech by Lord Chancellor and Secretary of State for Constitutional Affairs Lord Falconer of Thoroton

9 February 2007

Thank you for that incredibly kind welcome. I really am delighted finally to be here at the Manchester School of Law. As Professor brazier has said I was due to give the 21st Harry Street lecture back in October. Sadly, because of a traffic jam called the M6, I managed to be too late to get here before you all very sensibly went home.

My secretary was so keen that I deliver the 21st Harry Street lecture that she took it upon herself to send me to Manchester as early as a week last Tuesday well, last night, actually. And I have been waiting to deliver this lecture ever since.

I do apologise to any of you who happened to be here back in October, and I commend your courage in returning. I'm genuinely sorry to the School of Law and to the organisers of the Harry Street lecture series for being so disruptive, and for their kindness in inviting me here again this evening.

Having not given the lecture last October, I obviously had the choice of giving it again, for the first time, tonight. However, allowing for the fact that the text has been available for many months, I thought that it might be a touch dull. So I am going to take the first lecture as read — the very thing, of course, that it wasn't — and talk on another topic entirely tonight.

So: as I was saying, before I so rudely interrupted myself ...

The Harry Street lecture I didn't give was about our programme of constitutional reform: what we've done, why we did it, where we are going.

I want to talk to you tonight not about constitutional reform in general, but about one aspect of it in particular. I want to talk to you tonight about human rights. And specifically about human rights and common sense.

My central argument tonight is a simple one. That human rights and common sense go together. Human rights and common sense are two sides of the same coin. Human rights are common sense. So what I want to do tonight is:

• First, demonstrate that human rights and our human rights legislation enact our values

• Second, set out the common sense case for human rights and a common sense approach to the application and implementation of human rights and the Human Rights Act; and

• Thirdly, launch here today the Government's campaign arguing for human rights: a campaign to be called human rights: common values, common sense

It is, I believe, entirely appropriate that I should be making my remarks tonight from the platform that the late great Harry Street graced for so many years. Harry's seminal Freedom, the Individual and the Law is a manual of common-sense thinking on the issue of rights. A handbook, if you like, of an individuals' rights, and a first of its kind. And what has made it and Professor Street's work generally so enduring is its accessibility: Freedom, the Individual and the Law is a work that is uniquely accessible because it places human rights issues on a profoundly practical footing; because it steers well clear of lapsing into legalese; and because it looks at individual liberty from the perspective of the citizen — not the lawyer. An approach all of us would do well to follow if we can.

Fundamental rights have been protected in various guises throughout our history. Not always protected very well, sometimes not really even protected. But there has always been an understanding everyone deserved some protection. For ours is a society that has developed in the amniotic fluid of rights — of human rights.

From its earliest formulation in the Magna Carta Libertatum — literally the Great Charter of Freedoms to give it its full title — of 1215, to the Human Rights Act of the present day, ours is a culture that cherishes rights and freedoms. And in the Human Rights Act we have a mechanism by which our values are given greater protection and greater status than at any point in our history. Incorporating convention rights into our domestic legislation is an unprecedented step in the UK in terms of identifying, codifying and protecting a set of common values. Values that we have all grown up with — but values that until the Act came into effect in October 2000 — in many instances, we would have had to have gone to a court in Strasbourg to enforce.

It was not until the aftermath of the horrific events of World War Two that serious discussion about inalienable human rights achieved prominence. Indeed, Winston Churchill spoke of the purpose of the War being to ensure the 'enthronement of rights'. In the period straight after the war there was the common desire of the people and importantly the political will to agree a Universal Declaration of Human Rights. Values that humanity could unite around.

Britain was actively involved pushing for the Universal Declaration, but the document that resulted had little practical effect. Whilst it states ideologically the values which society believe inalienable, it provides little practical help in enforcing individuals' rights.

The United Kingdom, in discussions which followed about the creation of a Council of Europe, was particularly keen to see developed a new Europe-wide statement of Human Rights with some practical mechanism for enforcement. Because what is the good of rights unless they are enforceable.

They wanted agreement on a convention on Human Rights that had teeth and which would provide proper protection for individuals and for states.

In Churchill's own words, looking back after the signing of the European Convention, "A European Assembly forbidden to discuss human rights would have been a ludicrous proposition to put to the world."

And despite a number of internal differences within the Government that arose over the ECHR, with one of my predecessors as Lord Chancellor, Lord Jowitt, even going as far as to call it, and I quote a "half baked scheme", the ECHR was acknowledged within Government at the time as, and I quote, "the only positive achievement to come out of the Council to Europe to date."

The ECHR was heavily influenced by British values. The debate was British inspired, the drafting was British led, the values entrenched were British through and through.

But unless these values are given protection under the law they are empty words.

The Convention provided substantive protection for individuals against the violation of their rights by States. It ensured that the principles of democracy were strengthened. It elevated the position of rights in society. It still does all these things.

Yet the ECHR was never intended to be a precise legislative document. The drafting ensured, much to the anguish of my predecessor Lord Jowitt, that the convention provided flexibility not precision in its bid to protect fundamental freedoms. The drafters recognised that rights could come into conflict with one another. So it prescribed as a solution; flexibility. Flexibility that was rooted in a desire to let sovereign Governments and Courts decide the correct balance when there was conflict. Flexibility that allowed common sense to be engaged.

The protection that the ECHR brought, and was intended to bring was practical. It was not aspirational with no thought given to its application, a charge which some have levelled at the UN Declaration. The ECHR brought protection against the misuse of state power. Protection against the violations. Protection against the development of an unjust and intolerant society. It recognised the need as well to be able to provide practical protection to the citizen in the context that the rights of the community have in many cases to be balanced against the rights of the individual: freedom of expression versus privacy; liberty versus protection from crime.

That the ECHR brought this protection for British citizens is not to say that UK common law offered no protection. Indeed much of the convention was already covered by our common law and our statutes.

By the mid 20th century human rights in England were taken as read, even if they were not called human rights. The right to freedom, family life, association and privacy, were all second nature to the executive, to the legislature and judiciary, and to the British people as a whole. They had been growing in importance and authority as determinants of behaviour. Sadly, this was not the case in Europe of two World Wars and the Holocaust. Europe needed the rights Britain understood instinctively expressed as fully enunciated principles, to which a new generation of European leaders could hold themselves.

Common values

The right to life; not to be tortured; the prohibition of slavery and forced labour; the right to liberty; to a fair trial; to not be punished without legal authority; the right to respect for privacy and family life; to freedom of thought; of expression; of assembly; the right to marry; and the right to not be discriminated against. No-one would dispute the importance and validity of these rights.

These rights, it seems to me, defy contradiction in our society. These rights give expression to the values of our society. These rights are common sense. We all share them. They are common to us all. And they reflect our understanding and values as a society These are rights that we have grown up with. These are human rights.

The question therefore should not be whether or not human rights and the values that they represent are the right ones — but what is the best way that they can be given expression and protection under the law.

Thomas Paine in The Rights of Man typified this as "applying the principle to practice". "The laws of every country must be analogous to some principle" he argued. Without a proper mechanism by which our values are given expression and our rights afforded protection they remain intangible. Principle, as is demonstrated in human rights violations going on around the world today, offers no practical protection unless it is analogous to the law.

So these basic, fundamental rights are commonsense rights which are accepted by all. These rights are of course important in themselves. But their importance must go beyond that. Rights are not just for statute books, for constitutionalists, for lawyers. Rights must be for everyone: for practitioners, for users, for people who benefit from them. So though there is an aspirational element to human rights, that element cannot be predominant. For rights to carry meaning, they must be practical. Able to be applied in practice. Able to work in practice. Able to make a difference to people's lives in practice.

That practical aspect of human rights must as well apply in practice day by day, every day. Not that the rights of people in this country, for example, are under threat every day: they are not. But the framework and the operation of people's rights must be there for day to day use and day to day application in a setting to guard against the moment — or even the potential of a moment — when people's rights are or could be threatened.

People's human rights have to work in a way in which they can resolve conflicts — day to day conflicts — where the rights of the individual have to be balanced against the rights of the community.

In the vast majority of those cases, of conflict between rights, common sense tells us the answer. Common sense tells us how to resolve the conflicts which may arise.

Take the recent example of the row over a decision by Derbyshire police not to release — supposedly on human rights grounds — photographs of two convicted murderers who had been imprisoned in both cases for over a decade and who had escaped from prison. The crimes involved were serious: brutal murder. The idea that the human rights of people convicted of such crimes would, should or could prevent the legitimate use of photographic material in the course of trying to reapprehend them is utter nonsense. Not human rights. Not the law. Most certainly not common sense.

Significantly, in this case, as the media row grew I contacted both the Derbyshire Police themselves and the Association of Chief Police Officers, which issues to police forces guidance on a range of issues, including guidance on human rights. Perhaps inevitably, I found that what had been reported to be the position of Derbyshire Police was not, in fact, the force's actual position. Senior officers in the force were able to reassure me that they had not made any such argument about human rights. ACPO said the same. I would like to pay tribute now to both Derbyshire Police and to ACPO for the speed with which they acted to resolve the issue. As a consequence, the right action resulted: the relevant photographic material was released and deployed slightly later the same day.

Consider another case: the elderly couple who had been married for over 30 years, who were separated and moved to different care homes because it was considered too expensive to let them live together. Again this is the failure of common sense, not the fault of the law.

Common sense would dictate that this is a ridiculous decision for the local authority to reach. The HRA allows for a sensible balance to be struck between that couple's right to a family life and the local authority's convenience. Indeed the HRA places a positive obligation on public authorities to consider human rights implications when they are developing policy. Common sense — simply common sense.

Or consider the severely disabled woman, housed by a local authority, who was confined to a wheelchair, unable to use the toilet, or keep herself clean with any degree of privacy. Even after 20 months of what were described as "deplorable" conditions she had not been rehoused. The High Court found that her conditions were "wholly inimical" to family and private life, and in violation of her Article 8 rights under the Convention. Duly, and much belatedly she was rehoused and compensated. For that public authority, whether it was that they didn't recognise that her rights were being violated, or that if they did, common sense deserted them. We don't know. What is clear however is that they misapplied the Act.

Or take the case in which a man evading arrest in Gloucestershire did so by taking refuge on the roof of a house. While he was on the roof of the building, which was surrounded by the police pursuing him, he was supplied with cigarettes, drink and food — supposedly Kentucky Fried Chicken. A spokeswoman for Gloucestershire Police was quoted as saying that "although he's a nuisance, we still have to look after his wellbeing and human rights." That was reported as his human rights entitled him to KFC on the roof. Whether or not the police in this case said any such thing, as the media reported, is not clear. What is clear is that the idea that the suspect had any such human right is also nonsense. It is — rightly — an operational matter for the police to decide, in their judgement and with their experience, whether it would in such an example as this be better to meet his demands for food and other refreshments if that would be more likely to resolve the incident quickly, peacefully and safely. In this case, it clearly was of assistance in successfully ending the standoff. But equally clearly, the idea that such a move as part of the police's way of handling the incident is anything to do with human rights is fundamentally wrong.

Or take the example of Dennis Nielsen. Nielsen was sentenced in 1983 for multiple murders. In 2001, it was widely claimed in the media that Nielsen had been able to obtain, while in prison, hard-core pornography by citing his rights under the Human Rights Act. A very very good story if you are a journalist, it just happens not to be true. Nielsen did apply for a judicial review of the decision of his prison's governor to deny him access to a book containing hard-core pornography. His application, far from leading to hard-core porn being supplied to him, was in fact refused at the permission stage, and also again when he renewed the application. Human rights did not provide Nielsen with what he was seeking. Human rights did not lead to hard core porn being supplied to a murderer in jail. Far from it. The opposite, in fact: human rights and the Human Rights Act specifically did not lead to the supply of any such material. Nonsense again.

What characterises all these examples is that despite the accusations made in connection with them about human rights and human rights legislation, the actual resolution of them was a matter of common sense. Whether it is to refuse a claim by a prisoner, or to vindicate a person's dignity, as in the case of the married couple separated from each other.

In such cases as these, this must be the yardstick. If in such cases where human rights and human rights legislation are cited, and the conclusion reached runs counter to common sense, then the conclusion is wrong. If, in these kind of misapplications or misapprehensions, human rights is supposedly the question, then common sense is almost invariably the answer.

Of course there are bound to be cases which are on the edge. There are bound to be cases where there are real difficulties. Human rights legislation provides a template for striking the balance.

Because balance is involved in taking human rights decisions there will be inevitably grey areas, areas of disagreement and occasions where decisions may seem to go against the grain of popular opinion. But these are the exception.

What, for example, is the answer to the Afghan hijacker who cannot be sent back home because there is a strong likelihood that he will be tortured or worse on his return? One response would be to send them back regardless and consign them to their fates. In order to deter hijacking and international terrorism, one might argue, we must deport them come what may. Why should they be allowed to stay, and potentially pose a risk to public safety? Why should their human rights seemingly outweigh the needs of the community? I disagree with that conclusion.

It was Thomas Paine again, who posits a counter argument; "Those who expect to reap the blessings of freedom must undergo the fatigue of supporting it".

Human rights are the values we live by. Human rights are the values we must stick by even when confronted by enormously difficult situations such as this. If our society is to be true to the principle and the practice of human rights — we must make that difficult decision. It is very, very difficult — but the correct decision must be grounded in common sense.

Society must decide — and I don't believe we are living in a society that would accept sending a man to torture or death.

The events surrounding the tragic murder of Naomi Bryant are a sobering example of the difficulties in striking a balance between the rights of the individual and the protection of the wider community. Anthony Rice was released from a life sentence for a crime of violence and went on to murder Naomi Bryant 9 months later. The Parole Board and Probation Service were concerned about legal action against them on human rights grounds as Rice had served more than the 10 year minimum as stipulated by the trial judge in his original trial. In this case they came to the wrong conclusion, and prioritised his right to liberty over public protection. The Human Rights Act rightly provides for a balance to be struck; in this instance, with the deepest regret, it was struck in the wrong place. Throughout the decision making process, human rights issues were given too much weight by different public authorities. The duty on public authorities to protect the public in that case did not receive the prominence it deserves.

This is a further instance where the Act itself was not at fault but its application. Human rights is not about the protection of one group in society. It is about providing a practical framework to protect all our freedoms. If our freedoms require protection by suspending the freedoms of a few, to resist crime, oppression or terrorism then the Human Rights Act allows that. And it will allow it in a way which makes sense to us all.

Human rights: common values, common sense

Harry Street wrote in Freedom, the Individual and the Law, and I quote:

"There is much in the history of our freedoms of which we can be proud. They have not been won without much effort. Englishmen should neglect no available means of preserving and increasing their liberties".

They are very fine words: and I think they're right. Right on three grounds. That we can, and indeed should, be proud of our freedoms in this country. That they have very much been won with a great deal of effort — political and social. And, as a Scot, leaving aside what was probably a slightly of-its-time point about Englishmen — right too that we should take all opportunities of preserving and increasing our liberties and rights.

I believe that the Human Rights Act makes a very significant contribution towards achieving the goals set out here by Harry Street. But I believe too that part of that process of improvement is being proud about our rights — telling our story: making the case for human rights, making the argument for human rights. Rights are of less value as rights if the protections they offer are not known about. Just as justice must not only be done, but be seen to be done, so too with rights: our rights, including our human rights, must be observable as well as observed.

That is why I am today launching the Government's campaign to promote, argue for and advance the case of human rights. I said last September that the Government would be launching a campaign on human rights. Today is launch day. The campaign starts here in Manchester. The campaign starts now.

We are bringing together the arguments I have been setting out in this lecture under the campaign heading human rights: common values, common sense. I believe that this approach concisely captures our argument that human rights are our values, and that, informed by those values, human rights are common sense. Plain and simple. Easy and straightforward.

The campaign will essentially take two forms. Firstly, that I and my ministerial colleagues in the Department for Constitutional Affairs, and across the Government, will make the case for human rights, wherever and whenever we can make it. We will make the case to those who support human rights, and to those who declare their opposition to human rights and the Human Rights Act, whether in politics, in the media, or elsewhere. To those closely involved in human rights, and to those outside. To lawyers, and to non-lawyers. To the practitioners, and to the public.

We begin that argument today. I will take it forward next week when I talk about human rights and terrorism. And we will take the campaign to Parliament as soon as we get back after next week's recess with a fully-fledged debate on the floor of the House of Commons on the commonsense approach to human rights. And on after that, as the campaign progresses.

Kicked off by this speech, it will be an argument-led campaign. And I suspect it may well be a campaign, too, which will prompt an argument. Human rights is a contentious issue. I accept that. It is an issue which has, at times, prompted scorn and even ridicule. We know that there are people to whom the very phrase 'human rights', if not quite an anathema, is seen at best to be fine for other people in other countries in other parts of the world, but with little or no application or relevance here. We know too that there are some people who go way beyond even that position, who try to argue that the application of human rights is somehow outwith the fabric, nature and character of the UK, or still further, that human rights and the Human Rights Act is damaging to our country.

I reject that. I reject that profoundly and passionately. Attacking our human rights in this way is an attack on our values. It is an attack on common sense. It is an attack on our country, which has a proud and long history of standing up for people's rights. From Magna Carta to the Human Rights Act stretches a golden thread of rights in Britain — a thread to which we must and we will give support.

But that is not to say that human rights and the Human Rights Act are without their problems. Especially the problems of interpretation and implementation which I have talked about tonight.

There are answers to these problems. Common sense answers. Our job is to make sure that people involved with human rights know what these answers are. So that's what the second part of our campaign will be about.

We know that the best way to tackle the problems of implementation and interpretation of the Human Rights Act is to take the argument to the practitioners — to those people, who are in our key frontline public services, who deal with these issues. Not every day. Not, probably, every month or even every year. But from time to time, in any area, a human rights problem will occur. When it does, those dealing with it need to adopt a common sense approach. Yes, they need to apply the law. But my argument is that the law, the Human Rights Act, is common sense. So when they do apply the law, they must then be applying common sense. And coming up with a common sense answer to their human rights problem.

Where they have not been doing that — and I have detailed some examples of that tonight — then I believe that if there is fault, the fault lies with me, and with my department. Not with the hard-pressed frontline officials trying to do a proper job of work. No: it is my job, and my department's job and my Government's job, to make sure that people who have to apply, interpret and implement human rights law are fully equipped to do the job. That they have proper advice and guidance to do so.

We have done some work in this area, including making available a useful and practical toolkit to help people operate the legislation properly. But the examples I have cited show that, as a department, we have been nowhere near successful enough in this area. We need to go further. We need to do more.

So the second element of the campaign will be a concerted programme of reaching into these key services. Into the police, into local government, into the health service, into all sorts of other similar organisations to offer as much help and support as we can to people when they face these difficult problems, and offering advice to them on how to come up with common sense solutions to these problems.

Earlier this week, for instance, I met the leaders of the Association of Chief Police Officers. Partly to let them know in advance that I would be making this speech tonight, because I wanted to make sure that when I talked about the Derbyshire case, for instance, that I would be doing so in a positive and constructive way, and I hope I have done that this evening. And partly to seek their help in how I and my department can best assist them in solving any problems they might be having over human rights. I'm grateful to ACPO for their assistance so far and for their support in what I'm saying this evening, and we will be taking this work forward with them urgently. I will be arranging similar meetings with other similar bodies.

I and my department will be helped in this by the use of outside, professional advisers who we have engaged to assist us in this important communications work. Gauging success will not be easy. Preventing difficulties from arising is always hard — though always worthwhile. But I am determined to do whatever I can to make sure that human rights and the Human Rights Act are operated well. I believe we have a good piece of legislation here. I am proud of being a member of the government which put it in place. It is vital that we ensure that how it works in practice is as good as we can possibly make it.

Conclusion

So, in conclusion. I have tonight argued the commonsense case for human rights, and launched our campaign to take that argument as far and wide as we can. I have tonight launched our campaign to take the argument in favour of human rights as far and wide as we can. Our campaign is based on the commonsense case for human rights: that human rights and human rights legislation are rooted in common sense, require common sense and represent common sense.

We will now move forward. Looking ahead, we will make the argument: we will argue that human rights do express our common values, and that human rights aresensible. That human rights and human rights legislation is both necessary and effective, constitutionally compatible, morally appropriate, and the application of principle in practice. We will argue that human rights are designed to and do achieve sensible outcomes. Proportionate outcomes. We will argue that though the Human Rights Act put into UK law for the first time the European Convention on Human Rights, human rights are deeply and profoundly British. We will argue that human rights are there to protect the public, not put people at risk. We will argue that human rights benefit the majority, not just minorities: human rights are for the many, not just the few.

This is a big agenda. But it is the right agenda.

Too often, too much of the real importance of human rights — the fundamental values human rights encapsulate which we all share — has been clouded by nonsense.

It is time to move beyond the nonsense. From nonsense to common sense: a short phrase — but a big step. It is a difficult step. It may be a contentious step. But I am certain it is the right step. And it is a step I am determined to take.

Thank you.