Creating a fairer Britain
I am of course very grateful to the university and to the Vice Chancellor in particular for the chance to work with the team here on Public Administration. Canterbury Christchurch has an enviable and deserved record in developing the public service workers and managers of the future.
At this time of austerity and cuts it would be very easy for us to abandon planning for the future. It is to the credit of Robin and all the team here that instead they are looking to develop the approaches which will provide students with the skills and abilities to be even more employable in the future, and to make an even stronger contribution to our future public services.
I‘m going to talk this evening about the story of human rights and its relationship with democracy. Human Rights is of course now my day job, but is also a subject today of intense political interest and – I would say largely ill-informed- media and public debate around issues like Europe, immigration and treaties and obligations which allegedly favour the “undeserving” few over the deserving majority.
I am a historian by training, so rather than leap straight into trying to explain why the term “human rights” has become so politically charged. I intend to take a long view and argue that Britain took a wrong turn in our attitude to those who hold power and control in our society, and persuade you that we are still paying the price.
Why did the country which brought the world some of the first human rights debates and protections become one of the last to adopt human rights into domestic law? What happened after our Bill of Rights for three hundred and twenty years which left us so far behind many countries?
I will argue that we were diverted and still are, on to a series of battles indeed wars about first Kings and Parliament and then about Parliament itself - who should be there, who should vote for it and so on. Today that same battle is about Parliament’s sovereign power versus that of Europe’s institutions.
Democracy became a distraction, because even today, we are still obsessing about voting systems and candidate lists rather than worrying about how we, the people, are treated by whoever ends up in Westminster. We should be asking the really important question – who is in charge here and how can I limit their power over me?
Along the way we acquired, or were given, a view that democracy trumps all and that judges and courts were somehow less important or were less qualified to reach judgments about how we should be treated.
This is even more important because the more complex and difficult the world gets, the more important it is that we do understand what constrains power. The power of the state to decide for us. The power of the policeman to search our bags in the street. The power of the nurse over the patient or the care worker, or even the University lecturer.
Without constraints the state in all its forms will always be at grave risk of trampling on the rights of the individual. So I hope tonight to convince you that whatever else democracy may be it is not the only or even the best safeguard of the individual; even if it is the least worst way to run a country.
So let’s start at the beginning, or at least in 1215 with the Magna Carta. It is of course in no way novel for me to suggest that this is a good place to start a discussion of human rights. For all that the events leading up to the Runnymede signing ceremony were typical of a feudal, medieval society, where force of arms rather than force of argument determined the result of a dispute, what ended up written into the peace treaty between King John and the barons of the day created the distant but clear ancestors of the rights we recognise today.
The fundamental issue in the dispute and its settlement was the same theme which we will see in different forms over the centuries.
Namely: Who is in charge here?
That is a different question I think from who has the power. The ability to enforce one’s will on another person, or a whole country, is different from the issues of by what right is that power exercised. I may not be able to prevent you from compelling my behaviour, but I am going to make you work hard to articulate the rationale for what you are doing and justify your actions in some way.
In Magna Carta, the issue was a simple one. Could the King do what ever he felt like? Were there any restraints on the monarch’s actions? It is question that of course is not resolved once in our history. John indeed was rather better at negotiating his way out of a crisis on this issuer than Edward Il, Richard II, Charles I and James II proved to be.
At the end of the first clause of the Magna Carta is the key commitment
“To all free men of our kingdom we have also granted, for us and our heirs for ever, all the liberties written out below to have and to keep for them and their heirs, if us and our heirs.”
There are several observations I’d make on this which start to build our themes
First that the King here has granted the freedoms. They are in other words, his to give, not the people’s to claim. We shall see over time the challenges to this both in the political philosophy of rights which develops and the practical impact on the politics of the day. It is in fact still live and disputed today. If I am born with human rights then it is not for any government or parliament or administrative body to restrict or limit those rights without my agreement.
Second that the King is here binding his heirs for ever. No problem then about binding one’s successor body which today’s parliamentarians fret about.
Third of course it is to all free men. Not everyone. Not women. Not children.
The charter is actually remarkably long, at times amazingly detailed and very large portions are focused on the administrative abuses of royal officials. In the absence of the local government ombudsman this seems to have been the only remedy to those problems.
Let me just illustrate this with a few examples. And try and show that the underlying points they demonstrate are still important today.
In clause 18 we are told that:
inquests of novel dissesin, mort dancestor and darrein presentment shall be taken only in their proper county court.
In other words that access to justice should be transparent and local. This even more apparent in the wonderfully brief and clear clause 40
to no one will we sell, to no one deny or delay right or justice.
In clause 42 the immigration rules of 1215 are set out
How does that square one could ask with restricting legal aid to such an extent that people cannot take their problems to a court?
It shall be lawful for any man to leave and return to our kingdom unharmed and without fear...except in time of war for some short period for the benefit of the realm.
There are also any number of detailed articles which cover the functioning of the legal system, the imposition of disproportionate punishments and the rights of individuals to hold their own property free from violent or unjustified judicial intervention.
Or as 783 years later the Human Rights Act puts it
The right to liberty and security
The protection of property
The right to a fair trial
No punishment without law
And so on
The central point I believe is clear enough. Whatever power one may hold and by whatever basis one governs, no one should have unrestrained rights to do what they want. There is a rule of law which exists over and above the physical power or the royal prerogative. This is of course in many ways a negative expression of rights, which sets out how individuals should not be unfairly treated. But it lays the groundwork for much that was to follow, and which in many cases it would take many more battles to secure.
It is a tribute to Magna Carta that is difficult to find more important expressions of many of these issues through some 400 years of turbulent English history. Kings came and went. Some deposed for a variety of offences, often involving foreign favourites, but somehow we did not as a country seem to want to talk about rights and powers. It was all very English.
We did of course go through a long period of wars and quarrels about the crown itself. Maybe that long and bloody scramble for power distracted attention from any debates about the rights of the king once he managed to wade through to the throne.
There was one very significant issue though which dominated much of the sixteenth century, and that was religion. It’s probably fair to say that freedom of conscience for the individual was not high on the agenda. The right of the king or queen in this period to determine the state religion and enforce it absolutely was a pretty major extension of the crown’s role and rights.
I am proposing however not to go there! The history of religion and human rights has been and still is a very complex and challenging one. Perhaps I will have a chance to focus on that another time.
I am going instead to jump us to the mid seventeenth century and the great showdown on the power of the monarchy, our civil war.
It is perhaps surprising in some ways it took as long to get round to resolving the principles here as it did. We dealt with it practically by changing the King and not worrying about the concepts fairly successfully until Charles I.
The long disputes between first James I and then Charles I culminated in our only real civil war and the legalised execution of a reigning monarch. Surely no step could have finally demonstrated Parliament’s triumph more clearly and ended our history of kings and queens who ruled the country.
In the course of that time there was an important expression of Parliament’s – and presumably a large part of the country’s concerns.
The Grand Remonstrance in 1641 is an obvious descendant of Magna Carta, and in its own way another godparent of the Human Rights Act. It was presented to the King on behalf of the Commons and has at its centre a long set of complaints. They are very similar to Magna Carta - about the arbitrary and unlawful ways the King has extracted taxes, fines and charges from the population, the Church, business, and the City of London and so on.
Judges, apparently, have been put out of their places for refusing to bow to the Royal will – much perhaps as some Ministers would like to remove judges who disagree with them on human rights and deportation cases.
The gist of all of the dozens of clauses is the same – the King cannot act without Parliament’s agreement to impose taxes, fees, charges etc. The King does not have absolute power.
There was much less in the Remonstrance about the rights of individuals, it was though an important step on the road to civil war and eight years later the judicial killing of an unwanted monarch.
But despite everything, it took only a generation before it all started again. James II’s attempt to rule as King, coupled with the continuing Catholic/Protestant battles, led to what amounted to a parliamentary sanctioned foreign invasion. William and Mary became monarchs, and the Bill of Rights in 1689 really did end the controversy of King v Barons and King vs Parliament disputes.
The Bill of Rights was of course British (or at least English), so it has considerable resonance today when some Ministers and part of the media seem to believe that a British Bill of Rights is the answer to all their problems with that supposedly foreign Human Rights Act.
Curiously perhaps the Bill of Rights is really very brief and succinct – and maybe that brevity is part of the inspiration for those who advocate a modern successor.
It has just 13 articles and a short introduction, with a final clause inviting William and Mary to take the Crown. It by no means sets out the same breadth of “rights” or even negative restrictions on power which you can find in the Magna Carta
But some of the clauses here are noteworthy.
That the pretended power of suspending laws, or the execution of laws, by regal authority without consent of Parliament is illegal.
So Parliament trumps the King. Though by implication here Parliament plus the King trumps the law? That of course is the constitutional convention that England became well accustomed to - namely that Parliament cannot bind their successors and so the law is in the gift of Parliament.
That of course should not be the case when you start down the path of giving individuals rights which Parliament cannot just remove or tinker with?
There is also a very modern clause saying “excessive bail ought not to be required nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
This is very resonant of the HRA provisions indeed.
Meanwhile the USA was born
For Britain, the issues which had preoccupied it for 450 years went quiet for a time. The real developments in rights and their relationship to Government were to go on across the Atlantic. The founding of the USA has given us several key documents - the American constitution and its Bill of Rights of course - but I really wanted to draw your attention to the Declaration of Independence.
The Founding Fathers had the advantage of working with some of the most profound political philosophers in history – many of them British exiles and exports. The documents have more than withstood the test of time and their economy of wording in particular is as striking today as it was in 1776.
“We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The Declaration takes a new course compared to the baronial or parliamentary resistance to the arbitory or capricious rule of English Kings. It asserts very clearly that people have certain rights, and when a Government violates these rights, the people have the right to “alter” or “abolish” that Government.
The list of remonstrances which follow logically the colonies’ rebellion against the King is very familiar. It has the same legacy of misrule and maladminisation which echoes Magna Carta and the Great Remonstrance.
New offices or perhaps we should call them quangos, standing armies, corruption of the judiciary, obstruction of access to justice, hostages, taxes, it’s all here
It goes on to say “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
What’s new and certainly most important for the story is his clear assertion that the role of Government is to protect the rights of the people.
Government as the protector of rights
We need to pause in the chronology to focus on the vital distinction which this creates because it is the key to our history of rights and rebellions. And it is an essential component of many of the disputes and cases we are seeing in the courts today.
There are two sorts of rights. The right to do what the law says I can, or the right to do anything the law does not forbid. The distinction is crucial to the different way our tradition of rights evolved, with a different outcome to the US and much of Europe.
If I can do what the law says, then it must follow that whoever is setting the law holds power over me. They decide what rights I have, what freedoms I enjoy. So legitimacy as well as power rests somewhere else – not with me or with you, but in the end with them.
I think it’s reasonable to argue then, that if that is your understanding, you would naturally focus on who they were? If the events of 1689 meant they were Parliament you would spend the next 300 years arguing about the extension of the franchise, the social make up of Parliament, the number of old Etonians in the Cabinet and so on.
You would also come to resent and dispute the idea that anything could trump the will of Parliament. You might get annoyed when judges seem to thwart the will of Parliament – because it’s your will. You elected them – they are your choice and they should have their or your way.
On the other side of course is the model the Founding Fathers created, and which is also more common and recognized in the rest of Western Europe.
That the people have absolute rights. Governments exist simply to protect these rights.
Courts exist to ensure they do just that. Where ever physical power lies, it is only legitimate if exercised in that framework.
That approach is made absolutely explicit in the 9th Amendment in the US Constitution, which formed part of their Bill of Rights. It says:
“The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
So even if you wrote down some rights so the Government is clear what it must protect and defend, that does not limit the people’s rights to anything else.
This is, I believe, a key to understanding this country’s current problems with Human Rights, namely: We don’t believe rights can exist beyond Parliament’s reach or that courts should take over legislation.
And of course that is exactly what was set out in the Human Rights Act itself. It does not trump Parliament nor bind its successors. It is not a US or European absolute despite the efforts of some in the media to claim it does.
Human rights in the twentieth century
A brief history of the twentieth century is needed before I finish with the issues of today. Here, the story of human rights moves – crucially - from the national to the international, raising with that more complexity and for us more problems!
After the atrocities of the Second World War, the Charter of the United Nations was agreed by its respective founding nations. Among other things it determined:
This was followed by the Universal Declaration of Human Rights. Its preamble states:
Disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people
In Europe, Churchill’s determination not to repeat the horrors of the second world war (and it must be said as a bulwark against the eastern bloc) resulted in the adoption of the European Convention on Human Rights in 1950. It was a Scottish Conservative Home Secretary, David Maxwell Fyfe, who was charged with overseeing the drafting of the Convention.
Britain was the first country to ratify the Convention in 1950.
The European Court of Human Rights was established in January 1959 "to ensure the observance of the engagement undertaken" by states in ratifying the Convention and its protocols
It has been recognised by 47 European states as a supra-national court established to protect the rights enshrined in the European Convention and hear complaints when states have violated the human rights enshrined in the Convention.
However it was not until Harold Wilson's government in the 1960s that British citizens were able to bring claims in the European Court.
Partly as a result of the lengthy processes and expense involved in bringing claims in Strasbourg, parliament raised the Human Rights Act in 1998. The Act codified the Convention in British Law allowing our courts to enforce it, and ensuring there is a mechanism to hold government to account
And so we return to the critical difference I mentioned earlier. The Human Rights Act does not trump Parliament. Ministers are obliged to state that a proposed Bill is comparable with the Act. But a court cannot – as happens elsewhere – strike down the legislation. It can only draw attention to the issue.
There is another very important development though which does arise in the way the Act was constructed. That is an almost parallel duty to the role of the Government envisaged in the US Declaration of Independence; that public authorities have a duty to protect and promote the rights of individuals and the performance of their roles.
This is a very different take on the role of the state and its relationship to individuals. This is actually at the heart of the HRA and its duties and it could in time reshape the relationship between state and individual.
How “Human Rights” became dirty words
When I began to think about today I was very aware of trying to give you some answer to the question of why human rights has become a four letter word for some of our tabloid newspapers.
Given the rich history I have set out, and the distinctly British contribution we have made to the debate around rights and protections against those who hold power – why has the latest manifestation of these rights become such a source of anger and attack?
For our part, at the Equality and Human Rights Commission, we are attempting to recast the debate, to remind people that the question is of who holds power. What better way to do that than to consider the rights of older people receiving care at home or disabled people facing abuse or harassment without the support of those in authority.
That is not to say we will shy away from the more challenging cases, like speaking out on interrogation methods against foreign terror suspects or rights for prisoners. But sometimes the debate on human rights can forget those who arguably need them most but have the least opportunity to demand them.
Throughout tonight’s lecture we have repeatedly returned to the same theme – who holds the power, who is in control and what safeguards can be built in to protect against abuse of this power and control.
In 1215 the question related to the King exerting too much power over his subjects. In 2011 consider the older person forced to go to bed at 4pm because it fits with the shift patterns the local authority has set for home care workers, or the child detained at immigration, or the disabled person seeking the police’s help against bullying and intimidation.
The concept is the same – pushing back against authority is something we were brave enough to do in 1215, it is something we need to be brave enough to do in 2011.
So where next in our story of rights in Britain? The Government has set up a commission to consider a British Bill of Rights. Our submission on the matter could be summarized quite succinctly – we already have a Bill of Rights, it’s called the Human Rights Act.
However, as I have set out tonight, the problem doesn’t lie with the legislation, but with our willingness to accept that a statement of rights should form the backbone of our protection against an ever more powerful state.
I hope in this brief time I have given you some context for the current debates on Human Rights. They are profound and important debates which go to the heart of power, legitimacy and the kind of society and government we want to see for coming generations. Because I do believe Government must not just be of the people, but very much for the people.