…the Rule of Law
Published 7th February 2008, 3:20pm
Human Rights Conventions – Their Dynamic Impact on the Rule of Law. A lecture by Lord Anthony Gifford QC. 31st January 2008.
I am most grateful to the Cayman Islands Human Rights Committee for their invitation to my wife and myself to visit Grand Cayman and enjoy Caymanian hospitality. As you know I have been for nearly 20 years a Jamaican attorney-at-law and a citizen of a Caribbean country. One of the joys of being based in Jamaica is the proximity to so many Caribbean lands, speaking different languages, possessing different constitutional characteristics, from the fierce independence of a Jamaica to the total integration of a Martinique, and in between many entities which are searching for the ideal expression of their right to self-determination. I have enjoyed travelling through the Caribbean and seeing the consequences of history. Each visit around the Caribbean is a learning experience.
All around the Caribbean, irrespective of the language we speak or the status of our country, we cherish the concepts of democracy and the rule of law. In theory at least, we live according to laws which have been passed by the representatives of the people, and if our rights have been violated, we have the right to seek redress before an independent and impartial court. In Jamaica when anything goes wrong, you hear the cry for “justice”. People argue about what justice means, and whether the courts deliver it. But there is in all our hearts a deep-seated longing for justice and fair treatment. In the Caribbean, where people over the centuries have suffered some of the worst injustices which man has ever inflicted on man, the desire for justice has a historical resonance which makes it particularly intense. But it is of course a universal longing. The voters in Kenya, the women of Afghanistan, the dissidents of China, the outcasts in India, the aborigines of Australia, the Rastafarians of Jamaica, all in different ways know what injustice means.
These concepts of justice and injustice are at the heart of the practice of law. From my early years as a young barrister in the 1960s and 1970s, I formed the view that just as the calling of a medical practitioner was to cure disease, so the calling of a legal practitioner was to remedy injustice.
But I found that there were two problems about seeing the ideals of justice being put into practice. Two reasons why people in Britain who were suffering injustice were sceptical about the cliché that all people were equal before the law. One concerned the lawyers, and the other concerned the law itself.
In those days there was on paper an excellent legal aid scheme. No person who suffered an injustice would be denied legal representation because of his or her lack of means. A legal aid certificate would be issued to cover the fees of a solicitor and barrister, not chosen by the State but by the client, to the extent that the client could not pay.
The problem was that lawyers were not interested in doing legal aid work. They were happy to act for the landlords and the employers, not for the tenants and the employees. The agencies of the State had good lawyers, but those who had grievances against the State - the immigrants and the mental patients, the prisoners and the welfare claimants, did not.
How I and others responded to this is a long story which I have described in my book “the Passionate Advocate”. Briefly, we organised the setting up of a network of neighbourhood law centres around the country. We formed radical chambers of barristers and attracted young counsel who had been unable to find a place at the then highly conservative Bar. We harnessed the idealism of young solicitors who formed firms dedicated to the legally aided litigant. As a result the legal profession in England today is radically different, with hundreds if not thousands of practitioners who reach out in different ways to those who are most in need. They have brought class actions and test cases which can be read every week in the Law Reports. I am proud to have been part of that process of change.
In fact today in England the problem is the reverse of what it was. There is no lack of dedicated lawyers, but the government is making serious attacks on the legal aid scheme, turning justice into a conveyor belt system in which the cheapest bidder will get the contract to represent the litigant without means.
The relevance of what I have said so far is that a constitution which entrenches fundamental rights will be a dead letter if there are no attorneys to take on the cases which vindicate those rights, and if there is no adequate legal aid scheme to ensure that the poor can be represented with as much effectiveness as the rich.
The second problem which prevented the achievement of justice lay in the law itself. Britain then, as the Cayman Islands today, did not have any form of entrenched Bill of Rights. Indeed the prevailing legal philosophy did not recognise that people had inherent rights. We were taught that people were free to do whatever the law did not prevent them from doing. Any law passed by Parliament, however draconian or unfair to a minority, had to be enforced.
It is easy to see how this kind of legal system can lead to oppression. For if the rule of law depends only on Acts of Parliament passed by a democratically elected majority, then minorities are bound to suffer. The people who do not have a voice in the Parliament, the people who are even vilified by the majority, are especially in need of protection of their rights which the democratic process does not provide. It is no coincidence that some of the early test cases in the European Court of Human Rights were taken on behalf of those who get a rough deal in a system of majority rule: prisoners, mental patients, asylum seekers, racial minorities, gays, to name a few.
But although many cases have concerned unpopular minorities, every one of us has fundamental human rights. Any of us may one day need a Bill of Rights. Voicing an unpopular opinion; losing your job or your licence without a hearing; being charged with an offence which you did not commit; forming a trade union in a company which wants to be non-unionised; having your property seized by a regulatory agency: these are all things which happen to “respectable” people in which fundamental rights are engaged. So how we treat minorities in the end affects how we treat ourselves.
My own law firm in Jamaica has recently fought successfully for its fundamental rights and those of its clients, after an armed police raid in which my partner’s office was searched and his confidential clients’ files were removed. Last month the Court of Appeal ruled that this action was unconstitutional and a breach of legal professional privilege. The State had argued that the letter of the law allowed the raid to be carried out. The Court held that the right given by section 19 of the Constitution of Jamaica, not to be subject to the entry and search of one’s premises without consent, must prevail.
Without a written Bill of Rights, the gravest of injustices can happen. The persecution of the Jewish people in Nazi Germany was sanctioned by law. The apartheid system in South Africa was entrenched in the law. Discrimination against Catholics in Northern Ireland was permitted by the law. In all these cases there was oppression carried out in the name of the law, and it led of course to persecution, gross violations of fundamental rights, rebellion and bloodshed.
Let me give you an example from Northern Ireland where, in the days before the Human Rights Act, legally sanctioned abuses of human rights led to disaster. In 1971 the British Government introduced a system of internment without trial, backed by law, of Catholics suspected of acts of terrorism. Then they banned all marches and demonstrations, again backed by law. In 1972, on what became known as Bloody Sunday, a peaceful march of 15,000 people was held in the city of Derry to protest against internment. Because it was “illegal”, the British army felt obliged to block it, confront the marchers and shoot 14 of them dead. The outrage caused huge numbers of people to join the IRA and take part in a conflict which is only now being peacefully resolved. Today, internment without trial would be challenged in the courts as a breach of the right to due process, as it was in the case of A v Secretary of State when the Blair government interned terrorist suspects. The ban on marches would be challenged in the courts as a breach of the right of peaceful assembly, as has been done in many cases under the Human Rights Act.
Another Northern Ireland example shows how a Bill of Rights may be the only hope for a persecuted minority. In 1981 I was asked to take the case of Jeff Dudgeon to the European Court of Human Rights. Jeff was the secretary of the Northern Ireland Gay Rights Association. The law on adult homosexual relations had been liberalised in England but not in Northern Ireland, where one of the few things that Protestants and Catholics agreed on was that they did not like gays. We argued that the very existence of a law which criminalised homosexual acts in private was an interference with our client’s right to a private and family life, a right protected by the European Convention. We won the case and the law had to be changed. There were no terrible repercussions. Life in Northern Ireland went on, for better or worse. But an important blow had been struck for the rights of a minority.
Going back to my days as a young barrister, I often felt hamstrung by the need to find remedies within the letter of the law. Arguing that an action of the State violated the principles of the European Convention on Human Rights was in vain, for the Convention was not incorporated into domestic law. Sometimes we took cases to the European Court in Strasbourg, but that was a time-consuming way to get justice. With other like-minded lawyers we campaigned for Britain to have a Bill of Rights.
I am happy to tell you that the whole climate of legal practice in Britain has been changed by the passing of the Human Rights Act in 1999. The Act incorporated into British law all the fundamental rights contained in the European Convention. It required that all legislation and regulations, as well as the principles of the common law, should be interpreted in every court so as to give effect to those rights. It provided that it was unlawful for any public authority to act in a way which was incompatible with those rights. It required the courts to take into account the jurisprudence of the European Court of Human Rights.
The Human Rights Act did not fully entrench the Convention rights so as to require the overturning of an Act of Parliament which was inconsistent with them, as is provided for in Caribbean and other constitutions. It empowered the court to make a “declaration of incompatibility” in such cases. The practical effect has been that whenever such a declaration has been issued, as it was in the internment case, the government has amended the law. You may be having this debate in the Cayman Islands. My own preference is for rights to be entrenched, so as to avoid reliance on a democratic majority who may refuse to alter a law which is declared to be incompatible.
The Blair government which introduced the Act also required every judge and barrister and solicitor to be trained in the understanding of its provisions. Some of the new breed of human rights lawyers who I spoke about earlier were in the forefront of the education process. It is a process which I would like to see replicated in the Caribbean. The ideals of justice require not only just laws but just lawyers and just judges.
The Human Rights Act is only an element in a vast international tapestry of human rights instruments which began to be woven after the end of the Second World War, inspired by the belief that “never again” should a holocaust take place. Key international instruments were the International Covenant on Civil and Political Rights, the European Convention, the American Convention setting up the Inter American Court of Human Rights. In individual countries, I would mention the Constitution of India, which has been interpreted in a dynamic way by the Supreme Court of India; the Charter of Rights in Canada; and the Constitution of South Africa, containing probably the most advanced and comprehensive Bill of Rights in the world, including the right of access to adequate housing, the right to basic education, the right of access to health care; the right of access to information; the right to a healthy environment; the right not to be discriminated on the grounds of sexual orientation. In spite of the economic problems of South Africa, its enlightened Constitutional Court has delivered many landmark judgments which have given practical meaning to these rights.
In the Caribbean the Charters of Rights in the various constitutions, modelled closely on the European Convention, were originally not much used. The Constitution was used as a kind of safety net when conventional law did not provide a remedy. Some constitutions including Jamaica contain a clause which does not allow any challenge to be made to pre-independence laws. I am totally opposed to this, as it prevents the constitution from being a living instrument which develops with changing values. But in the last decade or two I have noticed a trend towards greater recognition of fundamental rights, reflected in Jamaica in the case of my office and other cases. I have also commended the early judgments of the new Caribbean Court of Justice, which has shown a breadth of erudition and a devotion to human rights which is at least as impressive as that of the Privy Council. One of its judges, Justice Wit, gave an response to those who complain that it is always criminal who invoke human rights in words which are worth quoting:
- “It is in a sense regrettable that human rights almost always seem to be invoked by people who themselves have shown little respect for the rights of others. We pride ourselves, rightly so, that the rule of law embraces even those that live on the seamy side of society. But it sometimes seems to shake the “unshakable faith in the fundamental rights and freedoms” when it appears that the application of those rights has once more “saved the necks” of those that have committed very serious crimes. That is most unfortunate. The potential, the positive and creative effects of these rights abound for those who want to see them. They are there for all citizens alike and not only for condemned murderers.”
Of course most rights are not absolute. My right to liberty is balanced by the State’s duty to lock me up if commit a crime. My right to free expression is qualified by your right not to have your reputation defamed. My right to freedom of association and to privacy does not allow me to create disorder or to persecute women or children. Only a few rights are absolute and unqualified; one is the right not to be tortured, another is the right to a fair trial. Other rights can be limited by laws which are reasonably required in a democratic society for the protection of others. Where the balance is to be struck is constantly debated in human rights cases. For instance in the case of my office, the fact that my partner was not in any way suspected of committing a crime was crucial to the decision. If the attorney is a criminal, his files would not enjoy the same protection. The important thing is that what is at issue in the courtroom is not the narrow question of what the letter of the law allows, but what the principles of a democratic society demand.
So I have no doubt that the incorporation of a Bill or Charter of Rights into the law of a society has a dynamic and positive effect on the rule of law. It enables the law to be more in tune with the ordinary person’s concept of justice. It promotes respect for the law instead of scepticism. It allows rights and their limitations to be taught in schools, since every young person should grow up with an appreciation of what are their rights and responsibilities. (For that purpose I wish that fundamental rights could be expressed in clear language rather than legalese which needs a lawyer to understand.) It has made the practice of law much more satisfying, but that it not the point. The point is whether our clients can achieve a higher standard of justice.
Many countries have set up Human Rights Commissions whose remit is to identify violations of human rights and assist people to find remedies, as well as educating the community. Such commissions need to be fully independent from the government and not a creature of the government. They need to be able to harness legal resources, either through their own staff or by briefing private attorneys, to take cases before the courts and set precedents. In Jamaica we have the Office of the Public Defender, who briefed me to take a test case for a Rastafarian church who were not allowed to conduct services for Rastafarian prisoners. At the door of the court the government conceded the claim, so long as no marijuana was used, and so now every month you may see the colourfully robed Rasta priests waiting to enter the Spanish Town prison. Taking a test case is often a much more effective means of change than exhortation and lobbying.
I have spoken deliberately about the general value of a Bill of Rights and not about the issues which confront the Cayman Islands. You will no doubt be having debates on which rights should be included, how they are to be enforced, what should be their limitations, how far one should include so-called economic rights such as education and health and the right to a clean environment. You have a particular constitutional status, which I know gives rise to issues such as the right of self-determination. I am not going down those roads today. All I urge you is: do not give up the attempt to pass a Bill of Rights because you cannot agree on all its details. Better to have a minimum charter than none at all.
It is my fervent belief that once you pass into law a Charter of Rights, whichever model you use, you will find that it will enhance respect for the law and mediate the tensions which are inherent in every society, large or small. For once a citizen with a grievance can hope to have a fair hearing in court, rather than being shackled by inflexible legal rules, the law is doing its job. I welcome any questions, and I wish the Human Rights Committee well in its work in stimulating this debate.
For further information contact: Human Rights Committee