Response to Lord Bingham’s speech:
“Do Human Rights Acts Make a Difference?”
Professor David Kinley
Chair in Human Rights Law, Sydney University
11 December 2008
Conspicuously active in retirement! Perhaps most notably his Grotius Lecture in London last month in which he raised serious doubts as to the legality under international law of Britain’s invasion of Iraq. This is hardly the path of a man seeking a quiet retirement. The Guardian newspaper - not traditionally known for its unstinting praise of the judiciary - said of that speech in a recent Editorial: “when Lord Bingham speaks of the law, it is always a good idea to listen”. It added (and I’m sure his Lordship will be delighted to hear this) that “Lord Bingham is not just any old lawyer!! He is the most senior judge of the modern era, regarded by many as its finest legal mind ”.
So – it is a pleasure and an honour to respond to Lord Bingham’s speech today, and, I might add, an opportunity that I am especially grateful for, given that his 17 years occupying the top 3 legal positions in the UK, coincide - unfortunately for me - almost exactly with the length of time I have lived away from the UK.
What I propose to do in this brief response is to engage in a little compare and contrast of the Australian and UK situations and draw out what I think are some of the salient aspects of the debate that we must have here, and that the UK continues to have in respect not only of the existing Human Rights Act (HRA), but also the possibility of a UK BR in the future.
AMBIVALENCE & ANTAGONISM
Despite the legacy of modern day human rights thinking left by the European Enlightenment thinkers (in whose number the English, Irish and Scots featured prominently), the Anglo-Celtic politico-legal tradition in respect of rights is marked by ambivalence and sometimes antagonism, on both the Left and the Right. The Left has probably had the longest tradition of opposition. Karl Marx saw rights as the oppressive instruments of the bourgeoisie; and Labour Party stalwart Harold Laski (whose socialism was influenced as much by JS Mill as Marx), thought that rights potentially stood in the way of the redistributive designs of ‘big government’.
Doubters on the Right included the Irishman Edmund Burke, who saw them as dangerous tools of revolution (he was reflecting on his impressions of the American and French Revolutions at the time). And Margaret Thatcher saw them as, at best, unnecessary, and at worst, obstacles to the rolling back of the state (precisely the opposite to Laski’s objections aired a generation before her).
Even today, 10 years after its enactment, the debate over the HRA still rages. For example, in 2006, Douglas Cameron, a Conservative MP who formerly sat on Parliament’s very own Joint Committee on Human Rights (JCHR) submitted a report for his Committee colleagues to consider entitled “Why the HRA must be Scrapped”. Even more colourful contributions to the debate were prompted by a judgment handed down last month restricting media revelations of such matters as the recreational drug use of celebrities, or the sexual peccadilloes of the Formula One supremo, Max Mosley. In response, Paul Darcy, the shy and retiring editor of the Daily Mail, was moved to call the HRA “wretched”, the relevant judge “arrogant and amoral”, and for good measure, he bemoaned the “inexorable and insidious” incursions into our liberties by the Act’s privacy provisions.
Perhaps most significantly, even the political parents of the Act have decided on some counselling as the legislation heads towards its teenage years. Earlier this week Jack Straw, now the Lord Chancellor and Justice Secretary, indicated his intention to proceed with an overhaul of the HRA “to wrest back its reputation as a ‘charter for criminals’”, as the Times put it.
We in Australia have inherited the some of the same ambivalence and antagonism; also on both sides of politics.
On the Right - somewhat infamously, Sir Harry Gibbs (former CJ), speaking at an event hosted by the right-leaning Samuel Griffith Society some years ago, argued that “if society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it”. George Pell, the Catholic Cardinal of Sydney, earlier this year, warned that: “we don't have a culture war here in Australia in the way the United States does, but a bill or charter of rights could help provoke one”. And yesterday, the Federal Shadow Attorney-General Senator Brandis, dismissed Attorney-General McClelland’s launch of the national consultation process on HRs as a waste of time because rights are already adequately covered under Australian law.
On the Left - The Labor Party (certainly that in NSW), has long distrusted BR initiatives for various reasons, including being fearful of repeating the in NSW the sham of the Constitution of the former Soviet Union, which had a comprehensive and eloquent catalogue of rights protections. And Bob Carr, the former Labor Premier, and long-time vehement opponent to a BR, has continued his opposition, recently warning that “a shift in power from elected parliaments to unelected judges, by a process of "judicial creep", is part of the bill of rights package.” (one must assume that Mr Carr was here using “creep” as an active verb, rather as a character assessment).
Consequences - The breadth, if not the depth, of this antipathy in the political sphere has been at the root of the many of the Federal failures to enact BRs (which in modern times, number three attempts - or three and a half, if you include the 1988 Mini BR referendum; and all proposed by under Labor Governments).
The judiciary - In the face of the political impasse – it is perhaps no surprise that rear-guard actions were sought in the courts. Adding to the few enumerated rights contained in the Constitution, the High Court, particularly under Sir Anthony Mason in the 80s and 90s, expanded, by way of implication, rights associated with (i) representative government and (ii) the judicial power as starkly stated in Chapter III. And (iii) more recently, Michael Kirby has been ploughing a fairly lonely human rights furrow on the Court, not least in respect of arguing for the use of international human rights treaties to which Australia is a party, as an aid to the interpretation of statutes, including the ‘mother of all statutes’ - the Constitution.
Political responses – The uncompromising negative political responses in the 90s and 00s to such perceived judicial activism, significantly retarded the BR debate, at least at the Commonwealth level. Under the Howard Government human rights were demonised; UN human rights committees shunned, and financial support for rights bodies (including the one we are in today) withdrawn or slashed. Furthermore, “liberal” judgments in high profile cases in the High Court (and also in the Federal Court, Family Court and certain State Supreme Courts) concerning indigenous land rights; mandatory detention for asylum seekers, children’s rights, criminal justice and anti-terrorism laws, were criticised (sometimes openly by ministers), and their effects reversed by legislation.
Current situation – So, given all this jurisprudential carnage at the hands of the political barbarians (as one might say), it is maybe surprising to find ourselves today in the situation where two BRs exist at the gubernatorial level, and three other states/territories are seriously considering the possibility. And of course, at the Federal level, we now have the newly launched Brennan-headed national consultation process, as backed by the Government’s 2020 summit promises.
GOING FORWARD – QUESTIONS ON A BR
An audience such as is here today, would be likely well-versed in the pros and cons of the BRs debate, and in any case Lord Bingham has just raised many of them in his speech. Therefore, I do not intend here to rehearse them, yet again.
Rather, I want to stress two points of fundamental importance, over which there is continuing confusion, which confusion must be dispelled as we enter this new phase in Australia’s flirtation with a BR. The first point concerns the purpose of a BR, and the second, the process of a BR.
(i) Purpose – human rights apply to all of us, NOT just the marginalised. This might seem trite, but it is a fundamental point, and too often overlooked. In this room there are doubtless some who are – relatively speaking – fairly ‘relaxed and comfortable’ with their own personal circumstances (well – at least I sincerely hope so!). But there will also be some who are far from relaxed and comfortable with their lot – more “aggravation and rage”, as Powderfinger put it.
The legal protections of HRs – such as they are in Australia – are fundamentally relevant to both camps. The aggravated (inside and outside this room) should and will try to utilise HRs laws to combat injustices, and thereby, of course, they will attract attention. The relaxed and comfortable lot are enjoying their state precisely because their HRs are well protected and they have no need to attract attention by having publicly to claim them. The essence of the Howard Government’s demonisation of human rights was to highlight only the first lot and to ignore or overlook the circumstance of the second lot! As our BR debate moves forward – whatever the arguments for and against - let it not be heard that a BR will just be a “Whingers’ Charter”, irrelevant to mainstream Australia. That is profane nonsense! If, above all, a BR can educate about the nature and fundamental importance of rights to the construction and maintenance of our systems of democratic governance and the rule of law, then it will achieve much.
(ii) Process – the ‘dialogue model’ of BR adopted by the UK, the ACT and Victoria is one that is directed at all organs of government, NOT just the judiciary. This type of BR has avenues for commentary and communication within and between all organs of government – each according to its authority. It is what my friend and colleague Prof Conor Gearty at the LSE calls “the aspiration of institutional competence”. Judges are authorised to call in aid relevant international human rights law, and they can pronounce on incompatibility/inconsistency; bureaucrats must prepare impact assessments; ministers must make statements of legislative compatibility; and, ultimately, parliaments can override. As with ‘purpose’, this sophisticated system of ‘check and balances’ is important to comprehend in full. It is – for me - the clincher for supporting this type of BR. The express intention to engage and educate all parts and levels of government is what democratises and legitimises such a BR initiative. Parliamentarians, Ministers, and public servants are appropriately‘legalised’, and the judiciary appropriately ‘politicised’ in the realm of human rights.
At least that is the theory. It is too early to make any meaningful assessments as to the extent of this viral impact through the governmental organs of Victoria and the ACT, but in the UK the results seem to be mixed. The UK Parliament’s Joint Committee on Human Rights (JCHR) has conducted a number of reviews of the HRA. None of these is more revealing than those which have sought to gauge the penetration of “the culture of human rights” into mainstream thinking and practices of government departments. At best it might be considered incomplete. Some departments – for example, Health – have made efforts to incorporate human rights perspectives into their policy-making processes and implementation practices (especially regarding mental health issues – prompted not least by a series of court cases). But many have not. And even in Health, it was noted that officials viewed the measures they were being asked to comply with more as bureaucratic hurdles that had to cleared, rather than aids to better policy-making and practice.
Communications between the JCHR and Ministers seems to have been more robustly successful (even if the parties agree to disagree), as, generally speaking, has relationship between the Parliament and the judiciary, forged by the latter’s declarations of incompatibility, and the former’s responses to them (most of which have been accepted and acted upon by the Parliament).
The lesson to be learnt is perhaps that “building a human rights culture”, is, like building Rome, not done in a day. And yet it is of vital importance. In giving evidence to the JCHR in 2006, Harriet Harman, the then Minister of Constitutional Affairs, acknowledged as much, stating that it was the UK Government’s intention “to take the human rights issue beyond policymakers, lawyers and the courts.” In light of continuing concerns – including from inside the UK Government itself - over the HRA’s “fitness for purpose” in its present form, we in Australia need to be mindful of how long the HRs road is likely to be. To be aware most of all, that the enactment of a BR is not the end of the process, but only the beginning.
Conclusion – Let me finish with a quote not from the UK or Australian cauldrons of debate, but from Prof David Kennedy of Harvard Law School. Reflecting upon the nature of human rights laws, Kennedy has remarked that the “ambivalent porosity is their secret strength”. Sure, we need robust, highly competent and committed judges (like Lord Bingham), to arbitrate the disputes that such laws will inevitably spawn. But we need also legislatures, executives, public services and the wider community to engage in the process if we are to understand, unearth and bring to bear that secret strength. Here’s hoping that the “human rights debate” road show – coming soon, to a venue near you – will deliver!