Nick Barber: A Good Word For the Bill of Rights Commission

Liora’s powerful critique of the composition of the Bill of Rights Commission has drawn a number of comments.  All of them are supportive; indeed, the only hint of dissent is that she may not have gone far enough.  I have some sympathy with the positions she expresses, but I wonder if she is, and those who agree with her are, being a little hard on the Commission.  At least some of the criticisms of the Commission reflect our uncertainty about what type of creature the Commission is supposed to be, rather than flaws in the composition of that body.  There are at least three different models of the Commission, each of which has different implications for its composition.

First, the Commission could be a panel of impartial experts setting out to review the functioning of the Human Rights Act in a scholarly, empirically driven, fashion.  We would then expect the Commission to consist of people with expertise in the operation of the Act: professors of human rights law, practicing lawyers with particular experience in the area, for instance.

Secondly, the Commission might represent, in some sense, the people of the United Kingdom, and be seeking to reform the Human Rights Act in light of their opinions about it. Most crudely, such a body could simply seek to identify these views and report on them in a more or less coherent fashion.  But more attractively, the Commission could be a sort of citizens’ jury, bringing together a wide range of people to discuss the Act, reaching a considered view about its reform.  In this case, the Commission would not consist of experts, but would consist of a diverse range of people from different backgrounds.  Experts in human rights law would probably not sit on the panel – indeed, expertise might even be considered a disadvantage. We would want the Commissioners to approach their task with an open mind and deliberate as equals.  On this model, experts would advise the Commission, but would not determine its recommendations.

Thirdly, the Commission might be a forum in which representatives of the Conservative and Liberal parties can thrash out compromises that come within striking distance of their manifesto commitments.  The Commissioners would be delegates of their parties; fighting for a Liberal or Tory vision of the Human Rights Act.  On this model, what matters is that the Commissioners have some knowledge of the operation of the Act, but – more importantly – that they have the confidence of the parties they represent. The Commissioners have constituencies: groups of people whose confidence they must maintain to succeed in their role.  Whereas on the first two models having a clear, political, opinion on the merits of the Human Rights Act before joining the Commission might be thought a disadvantage, on this model it is essential.

When criticising the composition of the Commission it is important to be clear about which of these three roles the body is intended to play.  If it is supposed to be representative, for instance, complaints about the Commissioners’ lack of expertise are misdirected: the Commission is supposed to represent the country, and only a very few people are human rights experts.  In contrast, worries about the Commissioners’ political allegiances are out of place in the third model, but would be well-founded if the first was adopted.

So which of our three models best captures the Commission?

The first model, the technocratic, politically neutral, body is a bit of a red herring.   Lawyers and law professors often hope that it is possible to engage in purely technical law reform; that it is possible to improve the operation of the law without adopting a political position on its merits.  This is an illusion – even the driest areas of property law are animated by deep, often unconsidered, political beliefs – but it is especially misleading in the context of the Human Rights Act.  The key questions that the Commission must address are strongly political.  There are no legal right answers to the best balance between the courts and Parliament, or the latitude that should be given to judges when interpreting statutes, or even to the nature and content of rights and the play-off between these rights and the interests or wishes of the community.  True, there are matters with which experts can assist us: they can tell us what the law says about a particular issue, they can tell us how laws do, and how proposed laws may, affect our world.  But our hopes for a ‘neutral’ answer to questions about reform of the Human Rights Act will always be disappointed: any vision of what the Act should become is clearly and unavoidably political.  ‘Experts’ on human rights have political agendas.  This is not a criticism: such commitments are unavoidable.  But we should not fool ourselves into thinking that there are purely technocratic answers to questions about the HRA – and we certainly should not defer to experts solely because of their supposed political neutrality.

The second model, the citizens’ jury, is more plausible.  We could imagine a group of people – perhaps selected at random – being given information about the operation of the Act by professors, lawyers, and politicians, listening to various possible reforms, deliberating and then producing a set of proposals.  These proposals would have a decent claim to capture the considered views of the electorate.  Of course, the outcome of this exercise might come as a disappointment to supporters of the Human Rights Act.  I doubt that the public in general is as keen on the European Court of Human Rights as human rights scholars tend to be, and I also suspect the public would be far slower to allow judges to override the will of Parliament.  (And, while we are on this topic, I suspect most people would be dismayed to learn of the EU Charter of Rights, an instrument that, interacting with the HRA and ECHR, will produce a system of rights protection that is bizarrely complex and costly – but that is a matter for another day.)  Now, human rights supporters have a good argument against such conclusions: the point of rights is, in part, to protect minorities from majorities.  But if we created a genuinely representative Commission, one that reflected the views of the majority, it would be hard to fight off the outcome.

Whilst the second model is more plausible than the first, it is clearly not the one adopted by those setting up the Commission.  This leaves us with the third model, which, I think, most accurately captures the nature and role of the body: as a forum in which a compromise can be reached between two political parties.  To object that this body is unrepresentative and politically partial misses the point.  The representative bit of the process occurred at the election.  We have a Parliament that represents the people.  Members of the Commission represent the two parties that, together, command the majority of seats in the House.  The point of their report is to formulate a position to which each party can assent, and which has a chance of getting through the Commons when it is put to a vote.    This vision of the Commission is hardly edifying – but perhaps only because we are expecting too much of it.  The Commission is doing in public what would normally, had a party won an outright majority of the seats, have been done in private.

Nick Barber is a Fellow of Trinity College, and a Lecturer at Oxford University.