affiliated to the International Association of Constitutional Law
Mark Elliott has provided an excellent analysis of the terms of reference and options open to the recently established UK Bill of Rights Commission. This post will focus primarily on the composition of the panel. Conor Gearty has already blogged on this issue pointing to the fact that all of the members of the Commission are white, all but one are men, and that the average age of the Commission is around 62. As Gearty notes, the race, age and gender mix of the Commission is a matter of some concern, and may well run contrary to the spirit, if not the letter, of the Equality Act 2010.
The decided lack of diversity of the Commission is a major weakness. This isn’t to suggest that some of the members of the Commission are not passionate supporters of diversity and are not deeply committed to human rights. Or even that the members themselves are not all honourable people. But there is a significant question about the plurality of views that will be brought to the table. I am a South African. There are many things concerning my country about which I am very worried, but the range of actors and groups engaged in the process of constitutional negotiation is not one of them. It is something about which I am very proud. The range of representation is also something which has given the South African Constitution genuine political credibility, even in the most testing of times, and an international status as a model of constitutionalism and human rights. Compared to South Africa, the UK’s human rights Commission looks pale and uninspiring indeed. I cannot imagine that the Commission will be something that UK citizens will feel proud of in ten years time.
But enough about that. I want to talk for a moment about other ways in which the Commission lacks plurality, and in some cases genuine expertise and independence of mind. There are eight QCs out of nine members. Needless to say, there is a notable diversity of opinion between them, but this does raise the difficulty that a legalistic approach may predominate in thinking about the political and moral questions raised by the Commission. It also raises the prospect that the culture of the Bar may prevail.
That said there is a decided variation in levels of expertise about, or sympathy towards, human rights amongst the QCs. The conservative quota of the Commission is mostly made up of pamphleteers, who have campaigned about their rights sceptical positions in the public arena. Martin Howe QC is not a human rights lawyer, though he has made his antipathy to the European Convention on Human Rights an extra-mural activity over the last few years. Jonathan Fisher QC is a tax and fraud specialist, and is also an avowed Conservative sceptic of the Human Rights Act. Anthony Speaight QC is also a commercial lawyer who, like Howe, has contributed towards the HRA sceptic literature of Society of Conservative Lawyers.
On the liberal democrat side are three major experts in human rights law. Anthony Lester QC is an eminent human rights lawyer) and was the leading light in the development of the Human Rights Act. He is the co-author of one of the major human rights textbooks in the United Kingdom and the author of many other important articles and books on human rights. Philippe Sands QC is a well known international human rights lawyer, who practices at Matrix chambers He is the author of a number of books and articles on international human rights and is one the most distinguished academics on the panel, and one few members of the Commission who can claim to have genuine academic credentials. Helena Kennedy QC is equally well known for her lifelong work and practice in human rights and civil liberties and is the author of a number of important books on this subject.
This leaves Sir David Edward and Michael Pinto-Duchinsky. Sir David Edward is presently a judge in the Court of First Instance, acted as a judge in the European Court of Justice (ECJ) (not to be confused with the European Court of Human Rights) and has had a career practicing in European Law amongst other things. He is not strictly speaking a human rights lawyer, though his exposure to the European system does give him a unique position on the panel.
Michael Pinto-Duchinsky is the only non-QC or lawyer on the Commission. Who is he? I must confess I had never heard of Michael Pinto-Duchinsky before he published the policy exchange document Bringing Rights Home. Since then, I have heard of little else. I was present at the JCHR hearing on ‘Human Rights Judgments’ on Tuesday March 15 2011) to which Pinto-Duchinsky gave testimony. I would urge readers to watch the session – which also included Professor Jeremy Waldron and Lord Mackay of Clashfern. A few things struck me about Pinto-Duchinsky’s performance. One, he knew very little about human rights and the European Court of Human Rights, despite the report he wrote based on interviews with experts about the ECHR. He repeatedly pointed out that he wasn’t a human rights lawyer or expert, and many times had to suggest that he go away and do more research about the questions asked. Second, he received almost no questions or challenges from Dominic Raab, who spent most of the rest of the session pushing his own view of Strasbourg’s supposed ‘judicial activism’ and seeking to undermine the presentations. Duchinsky and Raab evidently share a similar view, though Duchinsky is keen to note that he is only reporting the views of others. All in all however, Duchinsky is not someone we can reasonably describe as an expert of good standing in the field of human rights. As his testimony to the JCHR demonstrated, one report for Policy Exchange does not an expert make.
This brings me to my final point. The Commission has been put together in a climate of serious antipathy towards human rights. A climate which the Conservative Party and some notable members of the Labour Party have been generating from quite some time. One need only look at the tenor of the parliamentary debate on prisoner voting (or read it in hansard) or the statement by Theresa May on the judgments on the sex offender’s register) to get a sense of the political climate presently. This debate is not one which will go away. It is one that needs addressing by members of good standing who have independence of mind and genuine expertise. There are a range of impressive academic scholars in the UK and elsewhere who hold sceptical view about the legal protection of human rights. These moral and political philosophers, political scientists or lawyers, are informed thinkers who share a genuine concern to square parliamentary democracy with the protection of human rights. I do not agree with all their arguments, but I take their views very seriously. Jeremy Waldron – Chichele Professor of Social and Political Theory at Oxford and University Professor of Law at New York University – is a scholar who leads this well populated field in the realm of political philosophy. I urge readers of this blog to watch Waldron’s testimony to the same session at the JCHR, not because I think he should be on the Commission, but because it serves as an example of publicly committed expertise on complex questions such as these.
The Conservative Party is not served by selecting a group of pamphleteers and campaigners just because they support their view. Fisher, Howe, Pinto-Duchinsky, and Speaight cannot claim to be eminent human rights experts (no matter how much impressive work they have done in other fields). Strong politicians should have the bravery to select genuine experts and eminent thinkers who share rights sceptical positions and who can bring fully informed views to the table. Human rights debates are not only about matters of law or the jurisdiction of the European Court of Human Rights. They are matters of politics, and political morality, and ultimately about the shape of liberal democracy. Depending on how the Commission conducts its deliberations, the opportunity to have a genuinely sophisticated deliberation about these matters may not yet be lost. But the selection of some members of the Commission does speak to the anti-intellectualism of the Conservative Party. A country like the United Kingdom that holds such political standing in the world, is about to have its ancient constitution discussed by a Committee made up not only of white people, who are mostly men and lawyers, it is also only partly populated by credible experts.
Liora Lazarus is a Fellow of St. Anne’s College and a lecturer in law at Oxford University.