UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE

To be published as HC 1049-ii

HOUSE OF COMMONS ORAL EVIDENCE TAKEN BEFORE THE POLITICAL AND CONSTITUTIONAL REFORM COMMITTEE UK BILL OF RIGHTS COMMISSION THURSDAY 16 JUNE 2011 LORD LESTER OF HERNE HILL QC MARTIN HOWE QC PROFESSOR PHILIPPE SANDS QC BARONESS KENNEDY OF THE SHAWS QC

Evidence heard in Public USE OF THE TRANSCRIPT 1.

Questions 52 - 117

This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others. Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings. Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant. Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

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Oral Evidence Taken before the Political and Constitutional Reform Committee on Thursday 16 June 2011 Members present: Mr Graham Allen (Chair) Mr Christopher Chope Andrew Griffiths Mr Fabian Hamilton Simon Hart Tristram Hunt Mr Andrew Turner ________________ Examination of Witness Witness: Lord Lester of Herne Hill QC, Member of the UK Bill of Rights Commission, gave evidence. Q52 Chair: Anthony, I think you have had a chance to look at the transcript, so you know how brutal we are going to be today in our questioning. Lord Lester: Not as bad as the Court of Appeal. Chair: We are really pleased to welcome you and your colleagues who we are going to see later this morning. Many of us around the table have an interest in Bills of Rights from lots of different perspectives, so the questions will come from lots of different angles. Without further adoTristram, would you like to kick us off? Q53 Tristram Hunt: Yes. Good morning, Lord Lester. We are beginning to see how this coalition works, and it is a very political Government with the sort of yin and yang balancing themselves out. Is anything useful going to come from this investigation or are you going to head towards gridlock, despite you being all very eminent and reasonable people, and then each side taking which element they want? Lord Lester: I think it is a useful exercise or I would not be spending my time with it. Q54 Tristram Hunt: What do you hope to achieve from it? Lord Lester: Well, we are tasked with two different things: one is to advise the Government about the reform of the Strasbourg Court, and the other is the wider issues about the Human Rights Act and a possible United Kingdom Bill of Rights. On the reform of the Strasbourg Court, what I would hope is that we will be able to add value to the work being done under the British Presidency on the reform of the court by coming up with not new ideas, because this is an area where almost all the ideas have been gone into again and again, but ideas that it would be appropriate for a commission composed as we are to make. We have not as yet begun to discuss those ideas, but we are going to Strasbourg on 4 July and having a meeting on 29 July before we go and a subsequent meeting in July. Then in September we have to do a very quick piece of work because the advice is to be given before November, when the chairmanship of the Presidency

is taken over in that sense. That will be an important and difficult exercise because of the time factor and because it is an issue where one has to look at the problems through European as well as UK spectacles. Q55 Tristram Hunt: It is interesting that you say that because the Chair seemed slightly unclear as to the degree to which you could feed into the Presidencys thinking in terms of the timeline. But you regard that as an absolutely fundamental component? Lord Lester: I think our terms of reference indicate, or the statement made at the time did, that we are to advise before and after the British Presidency. I think that does mean that we need to have an input by November and then probably again later. As you know, there have been the Interlaken Conference, the Izmir Conference and loads of papers by NGOs and others put in on the subject. I am so long in the tooth that I have the privilege of saying that I argued the first British case in Strasbourg in 1967. Q56 Tristram Hunt: That is sort of the point, isnt it? The arguments are known. Your position, with respect, is known; other peoples positions are known. Unless there is going to be some extraordinary work of scholarship and insight from a series of people whose positions are fairly well entrenched, it ultimately comes down to a political decision as to what is taken from this Commission, dont you think? Lord Lester: No, I dont think that is right. When one is talking about the reform of the European Court, one is talking about what makes sense, given that there are 47 Member States, a court, a registry, a Parliamentary Assembly as well as a Committee of Ministers. One of the good things about the way this Commission has been set up is that I think we are professionals before we are politicians, and because we have experience as lawyersmost of us are lawyersand that has advantages and disadvantages. When we come to the second task, which is the British Bill of Rights task, that raises different considerations, but on the reform of the court it seems to me that there is a proper framework for discussion where we might just be able to add some value onI am speaking purely personallyfor example, what do you do about the fact that there are 150,000 cases pending and it will become 300,000 in no time at all? What do you do about the quality of judges who are appointed? What is the best way of sifting applications? What is the responsibility of the European legal profession in helping to ensure that hopeless cases dont reach the court? There are a whole lot of questions of that kind that would not be exactly on the front page of newspapers but are important when one is considering the reform of the court. To what extent should the court respect the common law perhaps more than it does? What should be the way in which its so-called margin of appreciation should operate? These are all important questions. They are not, it seems to me, party political questions and they are not questions that can be answered solely by any one country. Q57 Tristram Hunt: In terms of the Bill of Rights, what is your starting position there? Lord Lester: My starting position on all this is the wise words of a great American jurist, Judge Learned Hand. Speaking in Central Park in 1944 on the spirit of liberty, he said, The spirit of liberty is the spirit that is not too sure that it is right. I keep those words in my chambers, carved on a bit of stone, to remind me of the

danger of my own dogmatism. I believe that all of us on this Commission, and I hope all of this CommitteeI am sure this applies to this Committeehave open minds, but not empty minds. That, I believe, is the guiding attitude towards the work we are doing. Q58 Tristram Hunt: Just to tease out that dogmatism for a moment, where would be your like dogmatism on the Bill of Rights? Lord Lester: I beg your pardon? Tristram Hunt: Where does your dogmatism lie on the Bill of Rights? Even though you are entering this process with an open mind, there are certain starting premises. Lord Lester: Although I spent 30 years campaigning to get what has become the Human Rights Act, and although I regard the Human Rights Act as having worked extremely well in making the English judicial point of view more influential in Strasbourg, and in reconciling parliamentary sovereignty with the need for effective domestic remediesalthough it has worked well in those senses, it of course has not worked well in winning widespread political support across the three parties, the media and the wider public. There is clearly, whatever your position, a difficult problem as to how to make our constitutional rights, which at the moment are expressed as an echo of the European Convention rights, part of the fibre of our political system and our identity as equal citizens. There are various ways in which that could be done. As you know, the previous Governmentand I was advising them in an unpaid independent capacity for a whileflirted with the idea of a non-binding declaration of rights and responsibilities that conferred no rights and imposed no responsibilities. That would be one approach. Another approach would be to keep the Human Rights Act as it is but perhaps have a political declaration with it. Another approach would be to amend or replace the Human Rights Act. That would be fraught with some difficulty, because to place the Human Rights Act in the House of Commonsa very different House of Commons now from the 1997 House of Commons, or the one that abolished the death penalty in the 1960smight be an unwise thing to do, but that would be for a future Government to decide. In other words, I meant what I said about being not too sure that one is right. There are a variety of options. What I can say is that, contrary to what the outside world thinks, my view is that the members of this Commission can secure a high common factor of agreement and are not going to split on party lines and argue like cats in a bag. I dont think that is true. I have been impressed and, if I may say so, I think our Chair and the staff are outstanding. The thing about our Chair is that he is genuinely impartial and practical and we would not be wasting our time on this Commission if we did not think it would add value. I hope I have answered your question. Tristram Hunt: You have. Q59 Simon Hart: I want to follow up on a point Tristram Hunt made, if I may. I fully accept your confidence and optimism that the process will be one as you have described, but do you foresee a danger that the media will fixate on repeal of the Human Rights Act as the central purpose or area of examination of the Commission? In those circumstances, do you trust the coalition to behave responsibly with whatever findings you may reach?

Lord Lester: First of all on the media, when the Human Rights Bill was introduced some sections of the media sought a complete exemption from the Human Rights Act and lobbied Tony Blair to that effect. I was one of those with the Lord Chancellor, Lord Irvine of Lairg, who stood up against that and said it was quite wrong for the press to be immunised from any liability. They wanted to be immunised because of privacy and what they saw as the threat to the way that they earned their money. Instead, section 12 was written into the Human Rights Act emphasising the importance of free speech and the need for the courts to have regard to it before they issue prior restraints, injunctions. Ever since then some sections of the mediaself-interested, God bless them have campaigned vigorously against the Human Rights Act, totally unscrupulously, completely unfairly, mischaracterising everything as being a result of the Human Rights Act. That I expect to continue and I have already seen that they seek to rubbish the Human Rights Commission as part of their campaign. I dont expect that suddenly to end, I am afraid, even though I personally have fought many free speech cases for the media successfully in Strasbourg as well as this country. They like to take the benefit of article 10 on free speech but not the burden of article 8 on privacy. I do not agree with that and my defamation Bill, which is pending, seeks to do a job of striking a fair balance between, for example, free speech and reputation. So far as the effect of the media on politicians is concerned, some politicians, like my old boss and mentor Roy Jenkins, were robust in not taking the line of least resistance but giving leadership. Other politicians have not had the courage or spirit to do that. I very much hope that those who make policy in the coalitionand not me will, when it comes to it, stand up against pressure from some sections of the media and others who seek to discredit the whole process. What is extraordinary about the whole debate is that we alone in the common law world, apart from New Zealand, and completely alone in Europe, do not have a written constitution and we dont give our judges the power to strike down Acts of Parliament. Instead, we have a weaker form of protection but one that involves the political branches of Government as well as the judicial branch. It is not just judges. That is why I call it a compromise between parliamentary sovereignty on the one hand and effective remedies on the other. I often ask myself: what do the enemies of this process want instead? Do they really want a situation in which the rights and freedoms of our fellow citizens depend upon having to go to Strasbourg, where there are huge delays and 150,000 cases, or do they think that British judges should be able, as they are now able, to give British remedies where there are violations of our basic rights and freedoms by public authorities in this country? I am afraid at the moment the debate has not reached that level of understanding among some sections of the press and the public. Q60 Simon Hart: One quick follow-up on that. In a sense, you are suggesting that the media is contradictory in its position on the specifics of the Human Rights Act on the one hand. Is that what you are saying? Lord Lester: Yes. Lord Irvine of Lairg said all this about three weeks ago in a debate we had on the Convention, and I agreed with him. I am suggesting not all the media, of course, but some sections of the media, especially The Daily Mail and The Daily Telegraph, beat this drum all the time. In my view, what they do is unfair and ultimately misguided since they should benefit from the protection of free speech that the Convention and the Human Rights Act provide.

Q61 Fabian Hamilton: In describing the membership of the Commission, the Chair of the Society of Black Lawyers has said that the lack of diversity is appallingThe Commission is one-dimensional. Some have said that the membership of the Commission is generally, Stale, pale and, with one exception, male. How do you respond to that as a minority yourself, being the sole Liberal Democrat? Lord Lester: I am not the sole Liberal Democrat. Fabian Hamilton: I am misinformed then. Lord Lester: Philippe Sands is a Liberal Democrat. In any case, although I think it is true that I was one of the four that Nick Clegg proposed, I am not really tribal. Having worked for a Labour Government, for example, indicates that I am not a person tied to party tribal loyalties all the time, as you will see if you read last nights debate on the European Union Bill. Of course, I do not know about pale or stale. I suppose my wife might agree that I am pale and stale, but it is true that we only have one woman appointed and that is very regrettable. We have to do something about it, obviously, but we Q62 Fabian Hamilton: I am so sorry to interrupt you. You are not suggesting that the membership should be changed Lord Lester: No. Fabian Hamilton: in which case you need to be able to communicate better with the public? Lord Lester: Yes, absolutely. Fabian Hamilton: Sorry, I will let you answer. Lord Lester: First of all, we are not a publicly appointed Commission satisfying Nolan principles; in other words, the posts were not advertised. We are not meant to be that kind of body. What are we? We are an ad hoc body set up to deal with what is essentially a political issue and to see whether there can be a high common factor of agreement: Helena Kennedy being Labour, I being a Liberal Democrat, some of my colleagues being Conservative and Sir David Edward being a former and distinguished Professor and European judge. We are very narrow in our gender and in our colour and we are also fairly narrow in our geographical spread: we have one Scot. We dont have anyone from Northern Ireland, a place that I have advised upon in this context as well. So, while we do not alter our composition, we have to have extremely good outreach; we have to compensate for our lack of diversity. The other thing about us is we are mainly barristers. We are not of the political class. We are really essentially of the legal class and that has advantages but also serious disadvantages. We are going to have to go out and listen and discuss with an enormous range of people to overcome those disadvantages. If you think about it, suppose that you had been looking for a black female opponent of the Human Rights Act, that would have been a highly artificial and strange process. I dont think it is sensible with political appointments of this kind to look at it in that way. I do think the point you are asking in your question is absolutely the right question, and we have to recognise our limitations. I recognise mine as a barrister. Q63 Fabian Hamilton: Then, following on from that, does it really matter if, as you say, you are going to make every effort to reach out to all sections of the public and ensure that people from every constituency, not just political constituencies but

every community, have the chance to express their views to you and you have the chance to listen to them? Does it matter? Lord Lester: I think it should not matter to fair-minded critics and observers of us, but I have no doubt that there will be some who will condemn us on that and other grounds. I think I was described in one tabloid as being A fox among chickens or something. All these kinds of remarks, it is all good fun. Q64 Mr Turner: Could you clarify for me your last series of answers before my colleague? You are saying some of the press in the UK should have some acceptance of not decisions made in Europe but decisions made here that areI take it you meantseparate from the Houses here and yet could reverse decisions made there. Is that correct? Lord Lester: I am sorry, I dont quite understand. I dont think I put it that way. Mr Turner: No, you didnt. Lord Lester: I dont understand. Mr Turner: You put it much more elegantly, I am sure. I cannot remember exactly what you said. Lord Lester: I wonder whether you could make it simpler. Q65 Mr Turner: You are saying that those newspapers that dislike very much what is happening in Europe should have approval for an operation here that, in some cases, can set aside decisions by Parliament? Lord Lester: No. Can I try and rephrase because obviously I didnt do a very good job the first time? First of all, I was saying that there is a commercial reason why some newspapers do not like the European Convention or the Human Rights Act. That is because they dont like restrictions on their right to invade personal privacy and they rightly see the Human Rights Act, and the European Convention, as a restriction on that particular way of earning money. So that is a point of view and an interest that I understand but do not share. Secondly, I am saying that, for whatever reason, those kinds of newspapers dont give an accurate portrayal of the true facts about the Convention, the way it works or does not work, and the role of our own courts. Instead, they tend to misdescribe reality and to blame the Convention or the Human Rights Act for all kinds of things that have nothing to do with the Human Rights Act, as part of their propaganda. That is their right of freedom of speech. I dont agree with it; that is what I am saying. Some of it may come from hostility to the European experiment, but not all of it. A lot of it comes also from hostility to courts. Q66 Mr Turner: I think we accept that that is what newspapers are doing. What I am not sure about is what is wrong with their doing that. Lord Lester: They are entitled to do it because that is freedom of the press. Mr Turner: Oh, good. Lord Lester: What is wrong is that it is simply a wholly misleading picture. If you believe that facts are sacred, then all I am saying is that factually the impression that you get from reading some sections of the newspaper is simply wrong. Q67 Mr Turner: So, could you give me some examples of newspapers printing things that are factually wrong? Lord Lester: For example, they give the impression, dont they, that

Mr Turner: Yes, but that is rather different from a fact. A view is one thing; a fact is another. Lord Lester: When a newspaper suggests that the Human Rights Act doesnt allow the police to do their work properly because it inhibits them from using their powers of search and seizure, that is factually incorrect and the police would confirm that that is so, I think. When they suggest that the Human Rights Act and the Convention are no more than a charter for paedophiles and terrorists and evil people that is factually incorrect, as you know. Mr Turner: Could you give some examples? I am talking about examples from the newspapers printing these things. Lord Lester: I do not have the newspapers in front of me. Mr Turner: No. Perhaps you could follow this up by Lord Lester: Perhaps not. What I mean is I dont think I am in a position to trawl through the press right now, but I am sure Mr Turner: No, but some time after this meeting. Lord Lester of Herne Hill: that you may wish to do so as well as the Committee. Q68 Mr Turner: I am sorry, can I ask: is it unreasonable for me to ask for these facts to be brought here so that we can examine them? Lord Lester: No, it is not unreasonable at all. I just said that it is perfectly reasonable, but I do not personally have the resources to trawl through the last 10 years of the newspapers. It may be that that should be done by somebody, but all I am doing at the moment is to express my personal opinion to you. If you need to have some examples, I will read The Mail more attentively and between now and whenever I will send you, with pleasure, some examples of the way that The Mail in particular, and The Telegraph also, report matters of this kindincluding, perhaps, todays evidence. Q69 Andrew Griffiths: Lord Lester, you said in a previous statement this morning that the Human Rights Act had failed to win widespread political support and, indeed, support among the public. How important do you think it is for your committee to represent the views of the British public? Lord Lester: We are asked in our terms of reference, I thinklet me see if I can turn them up quicklyto address this issue. Yes, in the terms of reference it says, Consider ways to promote a better understanding of the true scope of these obligations and liberties. That is clearly part of our remit, to see how one can promote a better understanding. I dont think that means engaging Q70 Andrew Griffiths: That is not the same thing, is it? That is not the same thing as if you are considering whether the Human Rights Act should be replaced with a British Bill of Rights. To talk about how you can foster better understanding is not the same thing as being representative of the views of the British public. What I am saying is: do you feel that the Committee should represent the views of the British public or not? Lord Lester: I think we have to express our own views on the basis of the evidence that we receive and evaluate. I dont think we are there to conduct a kind of referendum on what public opinion in Northern Ireland, Scotland, Wales and England, or bits of them, think about this. I think that would not be something we are meant to do or could do.

Q71 Andrew Griffiths: Therefore, you dont believe that ultimately it matters whether or not your reportand indeed the recommendations of your report, if they are taken upwould have a higher level of support among the public or not? Lord Lester: I think it would be impossible to know. I dont see how one could truly measure what you call the public in that sense. We will be publishing an issues paper where we ask for feedback from the public. We will be travelling around the country as a whole to take soundings as best we can. It does matter that we should be in touch with reality, of course. There are very difficult questions, but it would be very difficult to be scientific without conducting a major exercise well beyond our resources. We are a body set up with a time limit and I think meant to work three days a month, with a very good but small staff. Can I give you a couple of examples that may help? Take Northern Ireland as an example. Now, we are talking about a United Kingdom document in our terms of reference, but ever since the Good Friday and Belfast Agreements in Northern Ireland, as you know, the Northern Ireland Human Rights Commission has been engaged in an exercise as to whether there should be a Bill of Rights in Northern Ireland. Plainly, that is very important and I have previously advised them at one stage. It is very important. We need to meet with them. We need to hear what they say. They are deeply divided between those who believe that there should be a UK instrument and those that believe there should be a Northern Ireland instrument. All of that we will have to take into account. There is an important Scottish dimension where there is the Scottish Human Rights Commission developing an action plan on human rights. Again, this is a very important subject that we need to address. There are many, many others. There are minorities: for example, the Society of Black Lawyers was mentioned by Mr Hamilton. It is going to be very important to get their perspective and the perspective of those who represent other important minorities. It is a very large job but we have to be practical and modest in the way that we go about it, I think. We are not there to be some grand royal commission spread over 10 years. We cant do what they did in Canada when they repatriated their constitution. Q72 Andrew Griffiths: You talk about The Daily Mail through the prism of privacy. Do you believe that the other elements of the Human Rights Act, which are regularly criticised in The Daily Mail and The Telegraph, are just a smokescreen in order to press this issue of privacy? Lord Lester: I dont know. I have no idea, but I am still puzzled, you see, by what their real alternative would be. They never actually address their real alternative. If we had no Human Rights Act and we went back to the situation we were in until 1998, where there were no effective remedies in our courts Andrew Griffiths: Forgive me; nobody is really talking about that, are they? People are talking Lord Lester: That is not right. They do talk as though a campaign to scrap the Human Rights Act is the right approachand, indeed, to withdraw from the Convention, for some. Q73 Andrew Griffiths: That is normally coupled with an assertion that there should be a British Bill of Rights based on British values, isnt it? You are characterising it as scrapping it and not replacing it with anything, but the debate

normally goes along the lines of: withdraw from the Human Rights Act and then replace that with a British Bill of Rights based on British values and British priorities. Lord Lester: Yes, there are some who say that, but there are some who dont say that. They simply say, Get out of Europe; get rid of the Convention; get rid of the Human Rights Act. What I am saying is that it depends in the end on whether you think that there should beas article 13 of the Convention requireseffective remedies in this country, through our own political and legal system, for violations of basic rights and freedoms. I would have hoped that that was common ground but it doesnt seem to be at the moment. Maybe the Commission will help to address that; I dont know. Q74 Andrew Griffiths: Finally, if I may, I am intrigued about the sort of language that you use. You talk about the enemies of the Human Rights Act. You talk about people being unscrupulous. The types of descriptions you use of those people who share a different view over the Human Rights Act are pretty strong. Do you believe that The Daily Mail in any way represent their readership, the thousands of people who buy the newspaper every day? Do you think they represent their views or do you think they represent just their own? Lord Lester: I would think they seek to represent the views of their readers in order to sell newspapers, of course. If I have used strong language, I am sorry; as someone who is pale andI forget the other wordpale and stale Q75 Andrew Griffiths: There is nothing wrong with using strong language at all. It is good, but the motivation behind it is what I am trying to ascertain. Lord Lester: If you want me to speak with a forked tongue, I will try to do so, but I am afraid all I can do at the moment is tell you what I really believe. If I have used very strong language, then there it is. Andrew Griffiths: No, I am not an opponent of strong language. I was just trying to find the motivation behind it. Lord Lester: I will try to emulate the House of Commons. Andrew Griffiths: Oh, goodness, dont do that. Please dont do that. Lord Lester: I will try and use the very muted and pale language that Members of Parliament use Andrew Griffiths: We want to find out exactly what you meandont do that. Lord Lester: rather than the florid language in the House of Lords. Q76 Mr Chope: You are obviously very enthusiastic about that part of your remit that deals with the reform of the Strasbourg Court. In looking at that, will you also look at the way in which the court is fundedthe way in which, for example, the Fundamental Rights Agency seems to have an unlimited amount of resources from the EU Member States, but those same EU Member States are reluctant to provide the resources to the Council of Europe and to the European Court of Human Rights? In looking at the issue of what I think is estimated to be the 90% of individual petitions, which are clearly inadmissible but which it takes a long time to deal with, will you look at the issue of whether there should be a requirement that those individual petitioners should have the benefit of legal advice so that, in the same way as in this country, there is a responsibility on the lawyers to advise them when they have a case and when they have not and to withdraw that case? You could see whether that might be a more cost-effective way of dealing with this enormous

backlog and preventing a backlog arising in the futureeffectively by telling people bluntly that they may have an individual petition but they are not going to be able to prosecute it because they require legal representation and the legal representation says that it is completely hopeless from the outset. Lord Lester: Again, I am speaking only for myself. We have not discussed this in the Commission and it may be that what I am about to say will not find favour with others. Maybe I should not express a view at all but, never mind, I think out of courtesy to you I need to answer your question. The question of resources, first of all: as you know, since 2000 there has been a policy of zero growth in the Council of Europe budget. As you said, the large part of that goes already to the court and meanwhile under the EU budget we have the Fundamental Rights Agency and the Gender Institute set up at the same time. Personally I agree with you, and indeed I sat on a House of Lords Committee that looked at this, a Scrutiny Committee. I agree with you that it was quite wrong to set up a Fundamental Rights Agency and a Gender Institute under the EU replicating what ought to be a matter for the Council of Europe. I deplore the fact that that has happened and I agree with Lord Tomlinson who made this point in our debate three weeks ago. Unfortunately, that is not something for this Commission to do. Also unfortunately, I cannot imagine there being support among the Member States to increase the financial resources of the court at this stage, except perhaps for some kind of filtering system to deal with ways of disposing of wholly inadmissible cases. I enthusiastically agree with youbut this is just me speakingthat it would be admirable to require members of the legal profession to have to sign each applicationand this has been suggested by the Strasbourg Court itselfbefore it goes in unless they are in a country where you cant find lawyers. I also believe that lawyers ought to be encouraged to act pro bono or on a no win, no fee basis, as the members of my chambers certainly do, in these cases in order to facilitate access to justice. The reason why I think your question is such an important one is that I think that national lawyers, and NGOs, need to take responsibility for the flow of applications to the court. This will not reduce the huge overload by itself, but I believe in subsidiarity and I want me and my brothers and sisters at the Bar, here and throughout Europe, to screen cases more effectively before they finish up in this vastly overworked court. I think that is one way in which the problem may be tackled, but I am sure that our Commission will need to think also about other ways of reducing the overload. Chair: Anthony, I am afraid we have overrun, but it has been fascinating. I think you are definitely found guilty of being pale but I think you are cleared on all charges of being stale. Thank you so much for your time. We really appreciate your coming along. Examination of Witness Witness: Martin Howe QC, Member of the UK Bill of Rights Commission, gave evidence. Q77 Chair: Mr Howe, I wonder if you could join us. Andrew, I think you have to disappeardo you want to kick off for us? Mr Turner: I take it that you come with some views. What are they?

Martin Howe: First of all, can I say that, in common with Anthony Lester, I approach the work of the Commission on the basis that we arrive with certain views, but not necessarily with certainties, and that it is a collegiate process in which we listen to each others views and strive to find common groundhopefully, useful common ground. I have certain views that I have publicly expressed in various publications, so they are on the record. I can see a real utility for a United Kingdom Bill of Rights in covering the ground of the principles that are protected by the European Convention on Human Rights, doing so in a way that perhaps can be made clearer and more precise, allowing rights to be enforced more easily in circumstances where they should be enforced and hopefully less easily enforced in circumstances where claims are brought that should perhaps not be brought. I also see a major potential for reconnecting the contents of a domestic Bill of Rights with our own legal and constitutional history. Historically, we are the single country with the earliest development in its history of the protection of civil liberties, going back to Magna Carta and the struggles that preceded the Civil War and the Glorious Revolution. For example, the independence of our judiciary is not imported from Europe via article 6 of the Convention. It comes out of that history; it comes out of the common law judges standing up to royal authority and out eventually in the Act of Settlement where it was written into law and acknowledged as a constitutional principle. Therefore I can see ways in which a United Kingdom Bill of Rights could reconnect us with our constitutional history. As part of that process, I think it also helps with the issue of public acceptance. There is a perception at the moment, I believe, among a section of the country, that the Human Rights Act is an alien import that comes in from abroad. I think to the extent that one can re-establish rights as being founded on our own history and traditions, one can overcome that particular problem. I suppose, in a nutshell those are some of the views with which I arrive at the work of the Commission. Q78 Mr Turner: That is very interesting because I think what we have are three different pictures. One of those is people like foreign decisions being made over there, nothing to do with us. Some people believe that it would be good to have those responsibilities here, and some of us would just about put up with having those things but we do not believe it is necessaryor rather we only just believe that it is necessary. I would guess you dont believe in the first thing, but what about the second and third? Martin Howe: Sorry, to believe in the first would be? Q79 Mr Turner: Well, there is a good human rights decision and the opportunity to make those decisions is over there; that is not the UK. The second thing is the good ideas made here and the third thing is, Well, okay, we have to have one but I would rather not have one. Martin Howe: Are you suggesting what my views are on, as it were, going back to the scenario before the 1998 Act? Mr Turner: Yes. Martin Howe: I suspect this is going way outside the terms of reference of the Commission, which is constrained in certain respects. Mr Turner: But not ours.

Martin Howe: My own view on that fairly fundamental point is that there is a place in our constitution for a formal declaration of civil liberties, human rights, call them what you want, whichas long as it is not like a US constitution-style Bill of Rights where the judges get the right to strike down Acts of Parliamentcan be viewed as a way in which Parliament itself first of all defines its own behaviour, in that Bills passed by Parliament are expected to measure up against a Bill of Rights that Parliament itself has approved, but Parliament has the right if it wishes to do so to depart from it; secondly, and quite importantly in todays legislative climate, in constraining the activities of the Executive in pouring out the thousands and thousands of pages of delegated legislation, which is now the overwhelming majority of our day-to-day law-making process. I do see, if you go right back to first principles, the need to have an instrument of this kind in place for that purpose. Chair: Fabian, you wanted to pick up a point. Q80 Fabian Hamilton: A very small point. In which case, why not go the whole hog, dispense with a Bill of Rights and have a written constitution? If you are saying that a Bill of Rights effectively takes away authority from Parliament, as does the Human Rights Act, then why not pass that authority from Parliament to a document that establishes Martin Howe: I have no doubt there are arguments for that, but that would be a huge project. It would require a total change of our constitution, based as it is on the sovereignty of Parliament. The Human Rights Act, obviously in a sense it can be said to constrain or conflict with parliamentary sovereignty because of two mechanisms under that Act: first of all, it is the interpretation mechanism under which Parliament may think that a section of an Act it passes has a certain meaning but the courts then, in effect, alter that meaning to make it compliant with the Convention; secondly, the declaration of incompatibility; and I suppose thirdly, the mechanisms before Bills turn into Acts, the obligation on Government Ministers in putting Bills before Parliament to certify that they are Convention-compliant. Those you could say do indeed represent a constraint on the way Parliament legislates. On the other hand, under the mechanism of the Human Rights Act, they are not an absolute constraint as would be the case in a US-style constitution and possibly in other forms of written constitution. Q81 Fabian Hamilton: Then under a Bill of Rights will they be an absolute constraint on the sovereignty of Parliament? The right-wing media viewThe Daily Mail, The Daily Telegraphto which Lord Lester alluded, would argue that membership of the European Union, as we know, is a constraint on the sovereignty of Parliament, as is the Human Rights Act. Surely you are just going to replace one constraint with another constraint. You call it home-grown, but is it any better? Martin Howe: First of all, there were two questions there. One is: would a Bill of Rights for the United Kingdom represent a stronger constraint on Parliament than the existing mechanism, which I think some people call soft entrenchment, under the Human Rights Act 1998? I am not sure. That is certainly not something I favour. I cant speak for other members of the Commission as to whether there is any impetus for suggesting that a Bill of Rights should be deeply entrenched. That would raise very major constitutional issues, as you have pointed out. I think one of the effective problems is that once you transfer a power to the courts to strike down legislation for non-compliance with a Bill of Rights, you then find that the political views of the judiciary become very important, as in the United States. They play a major part in the appointment process of Supreme Court Justices.

Whether for good or ill, you have profoundly changed the nature of our present constitution. Q82 Andrew Griffiths: Thank you, Martin. One of the big issues that has been in the media recently and has exercised a lot of people is prisoner votes. I would argue that one of the reasons why we have the issue of prisoner votes is because of the vagueness of the way the Human Rights Act is written, which means that it is an interpretation by European judges and there is a politicisation of the decisions that are made. Would you agree with that assertion and do you think we could do it differently if we had a British Bill of Rights? Martin Howe: I think the problem with prisoner voting, though, is to do with the Convention itself rather than with the Human Rights Act because even if, say, we repealed it tomorrow or never had it, the cases on prisoner voting are Strasbourg Court cases brought by individual petition. As a country, as long as we adhere to the European Convention on Human Rights, we would face this issue. It is not an issue that we can fix, if you want to fix it, purely by testing legislation unless you are willing to contemplate leaving the Convention. However, I think this may raise a broader issue about the Strasbourg Court and the way it operates, because, as Anthony has mentioned, this is an area the Commission is tasked at looking at. One aspect of that is looking at the nuts and bolts of court processes. I think there is another area that is worth examining, which is the quality of the jurisprudence of the court and the way in which a very generally expressed convention that was intended to be a backstop, the perimeter protecting human rights to prevent regimes sliding back into fascism and communism, has been interpreted in such a way that, for example, it is deemed a breach of human rights for Princess Caroline of Monaco to be photographed when walking in a public street. One has to ask to what extent the jurisprudence of the court may have shifted over time a long way from the original purposes of the Convention. Q83 Andrew Griffiths: Would you agree then, Martin, that that shows that the priorities and the views of the European courts are divergent from the views of the public, particularly the British public? Martin Howe: I dont know that. I dont know about commenting on the views of the British public. European courtsyou are also referring to the Luxembourg Court? Andrew Griffiths: Yes. Martin Howe: That, of course, has a role in this field via the EU Charter of Fundamental Rights within the scope of European Union law. Neither of those courts is established nor is it part of its function to be reflections of public opinion. It is not part of their tasks. Their tasks are different from each other: the Luxembourg Courts task is as a harmonising body within the scope of European Union law; the Strasbourg Court is simply to enforce the Convention. I do think, in the case of the Strasbourg Court, that there are some fundamental questions that perhaps should be asked about its role because at the moment it is completely swamped by the right of individual petition. What it is seeking to do, or what it is tasked to do under the Convention, is to determine every single individual case where anyone in any of the contracting states raises a claim of a breach of Convention right. One fundamental question one can ask is: an international court at that levelis that an appropriate task for it to perform or should it be concentrating

more on dealing with important issues of law that are referred to it by the courts of the Member States? Chair: Christopher, did you have something? Q84 Mr Chope: Yes. Can I ask about whether you are going to be considering the costs and benefits of leaving the Convention so that we would no longer be a party to the European Convention, which is something that is actively being discussed in The Netherlands? The terms of reference of your Commission say that you will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention, but surely it would be possible for you to look at the incorporation of the European Convention rights within the UK law, and then have the interpretation of those rights carried out by our own domestic courts in accordance with the common law traditions? That would be retaining and incorporating the obligations, but ensuring that they are not interpreted in the future by a court that, increasingly, seems to be engaged in judicial activism and is seduced into this idea that there should be a degree of harmonisation across the 47 member countries of the Council of Europe. Do you see that, within your terms of reference, there is scope for looking at coming out of the European Convention and setting up our own alternative? Martin Howe: I think I would rather notwithout discussion with my colleagues on the Commissionexpress a view on that sort of point of interpretation of the terms of reference. Certainly, the primary basis on which we are looking at it is that our terms of reference involve continued adherence by the United Kingdom to the European Convention. Indeed, that is the basis on which the Commission has been tasked with giving advice to the Government on reform of the court process. It is certainly not explicitly within our terms of reference to consider the possibility of leaving the Convention as a treaty, but maintaining the contents of the Convention in our internal law, which I think is the possibility you are raising. Q85 Mr Chope: Can I raise something else, then? We know, and you have already referred to it, that the Luxembourg Court has a remit to try and harmonise across the 27 Member States of the EU, whereas ideally the European Court of Human Rights is not engaged in that sort of harmonisation process. When the EU is fully admitted as a party to the European Convention on Human Rightsand the negotiations are going on behind closed doors as we speakdo you think that that is going to create even more tension between what we might describe as the pressure for harmonisation coming from the European Union and the pressure that is coming up from the people through Parliament in this country saying that we should have human rights laws that fully reflect our own common law tradition and history and we dont want to be subject to harmonisation on a European basis? Martin Howe: As you know, the present position is that the EU Charter of Fundamental Rights under the Lisbon Treaty is now part of the European Unions legal order. The EU Charter of Fundamental Rights contains a series of articlesit contains other things as wellthat are based upon and explicitly cross-linked to corresponding articles in the European Convention on Human Rights. At the moment, within the scope of European Union law and including the application of European Union law by Member Statesso anything the UK courts or Government do, say, in fulfilment of implementation of a directivecomes within the scope of the EU Charter of Fundamental Rights. Therefore, the Luxembourg

harmonising court is sitting there at the top of that pyramid already with the ability and, indeed, willingness to use this in some circumstances as an additional instrument to promote harmonisationthe harmonising agenda. I think the recent example of that was the Luxembourg Courts decision relating to insurance premiums and sex discrimination, under which it struck out from a directive a derogation, which had been agreed between Member States, that permitted differences in insurance rates based on gender if it is statistically justified by claims history, and so forth. So we already have the fundamental rights or the Convention rights or a mirror of them, being used by the Luxembourg Court as an instrument of harmonisation. Will it make that process go further or faster if the EU accedes to the European Convention? I dont know. It will certainly create a sort of tension at the top of the pyramid, between the Luxembourg Court and the Strasbourg Court, as to which of them is the top dog. Q86 Mr Chope: Following up, Chairman, on that very depressing but doubtless wholly accurate account of where we are, can Mr Howe tell us how we could possibly extricate ourselves from this process of harmonisation and loss of our own constitutional liberties, independence and sovereignty in the context of where we are, short of actually leaving the European Union as well as perhaps the European Convention on Human Rights? Martin Howe: I think this is taking us well outside, certainly, the terms of reference of the Commission I am a member of at the moment, and I think probably the blunt answer is that it is extremely difficult to see any way in which this process can be reversed, or even slowed down or stopped, in the context of the present basic relationship between the United Kingdom and the European Union. I am afraid I cant see Q87 Mr Chope: Doesnt that show that this is a completely pointless exercise, because you dont have any freedom of manoeuvre to establish a separate independent British/UK Bill of Rights when we are already linked in in the way that you have described with the EU harmonisation process? Martin Howe: I would accept that, within the scope of European Union law, with our Treaty obligations as Members of the European Union, you cant consistently, for examplelet me take a specific example. From fairly early on in its history, the European Court of Justice, in the Internationale Handelsgesellschaft case, said that community law prevails over any form of national law, including fundamental rights embedded into a national constitutional structure. If we have a Bill of Rights and supposing there are rights and freedoms contained in it that come into conflict with a European Union harmonising law, or interpretation of European Union law, a conflict would then potentially arise between the Bill of Rights of the United Kingdom and European Union law. One issue that needs to be thought about is the relationship between the Bill of Rights and the 1972 Act. Indeed, the issues are similar to the issues that were debated in the House of Lords last night under clause 18 of the current European Union Bill relating to the sovereignty of Parliament versus EU Treaty obligations. Q88 Mr Chope: Is your Commission going to have Chair: I am going to have to stop you there. Mr Chope: the time and resources to resolve those issues that you have just been describing?

Chair: Very quickly, Martin. Martin Howe: I think that one is well outside the terms of reference of the Commission. Chair: Do you want to come in? Simon Hart: My question is just as applicable to the next witness as this one, if that helps you. Chair: If you dont mind, it is because we are running a little late. I dont want to be discourteous to any of the later witnesses. Martin, thank you so much and good luck in your deliberations on the Commission. Thank you for joining us. Examination of Witness Witness: Professor Philippe Sands QC, Member of the UK Bill of Rights Commission, gave evidence. Q89 Chair: While Chris is in full flow, Professor Sands, I think we will give him his head and keep him at it. Mr Chope: Professor Sands, you have heard the questions I was putting to Mr Howe. Do you have some comments upon the fundamental issues relating to how a UK Bill of Rights, were it to be established, would link in with current UK legal obligations under its Treaty commitments in the EU and further afield? Professor Sands: First of all, thank you for the invitation to be here. I have listened with great attention to Lord Lester, Martin Howe and the questions that were put and the answers that were given. Of course, the terms of reference that we have do not encompass the EU point directly, but we are obviously aware of the context in which the mandate we have been given falls to be interpreted and applied. As you know, right now there is an initiative under way whereby the European Union may eventually become a party to the European Convention on Human Rights. That has not been possible up to this point because, under the rules established by the Council of Europe, only a state can become a party to the European Convention. There is consideration now as to how that can be addressed. For my part, I have to say that that is an initiative that should be considered carefully, and in broad terms positively, because I have a concern about the lack of accountability of community institutions. As you probably know very well, it is very difficult for individuals, for corporations, to bring proceedings against the European Community institutions if they believe that they are somehow interfering with their minimum rights. It is almost impossible to have access to the European Court of Justice in Luxembourg to test those types of issues, so some consideration has to be given to how to make the community institutions more democratically accountable. With regard to your question, I dont think that the European Unions Charter has the same status in English law as the European Convention on Human Rights currently has. We will obviously have to give some consideration to the interplay between the Convention and community institutions but it is not at the centre of our terms of reference, so I have to say we have not, at least thus far, focused on that issue. Q90 Mr Chope: We heard last week from your Chairman that he, and doubtless nobody else, was consulted about the terms of reference. If you are bound by the terms of reference, it sounds as though you are not going to be able to answer

the whole question because, if you answer the question about a Bill of Rights, you will not have the scope to deal with the knock-on effects or the limitations of such a Bill of Rights having regard to our Treaty obligations. Does that concern you? Professor Sands: I think, in interpreting our terms of reference we are all, judging from the first meetings we have had, fairly pragmatic individuals and we will look at things in the round. Of course, in the round is not limited only to the European Economic Community rules. I come to this process as an academic and as a practitioner. I am engaged in teaching and practice in relation to the United Kingdoms obligations generally and we are not limited to European Community rules. There are free trade rules, there are WTO rules and there are intellectual property rules. I would say the short answer to your question is: we have to have regard to our terms of reference, considering the desirability of a Bill of Rights by reference to the United Kingdoms position generally in its relations with the world. Obviously, that includes the European Community, but is not limited to the European Community. Q91 Simon Hart: If I can turn the clock back a few minutes and refer you back to some comments made by previous witnesses as well. One thing that has concerned me, as a result of listening to the witnesses this morning, is how this would play were this conversation to be undertaken in a pub in west Wales. I think the reaction would be one of a mixture of boredom and frustration. I am not sure in which proportion, but I think that would probably be the reaction. That leads me to a more serious point, the one that Lord Lester touched on in his earlier evidence, about how you as a Commission see yourselves engaging with the public and satisfying public expectationnot public opinion, but public expectationas to precisely what all of this means, where it is all leading and how it benefits our taxpayers and our voters. Nothing that I have heard so farand that is not a criticism, because we have not asked the question specificallyhas alerted me to how you as a Commission see yourselves embracing the public on this, bringing the public with you and inspiring the media to report accurately the aspirations and outcomes of your activity and therefore comforting us political bottom feeders here in Parliament as to the merits of it all. How are you going to achieve that? Professor Sands: A very important and excellent question. I think you will be pleased by the initial conversations within the Commission, in the sense that you are pushing at an open door. I think there is an acute awareness, among all the members of the Commission across the spectrum, of the need to engage very actively with all interested members of the public in relation to issues that fall within our mandate. I am sure our Chairman, who has performed an excellent task in the first month or two, has shared with you that that will be our desire. I would beg to disagree with you in this respect: I havent spent time in pubs in west Wales, but I have spent a lot of time in pubs in Hay-on-Wye, where I spend a lot of time every year. I spend a lot of time talking about these issues. For example, when I go to support my local football team, I talk about issues that have come up and that you have already addressed, on prisoners votes, and so on and so forth, and people are really interested in these issues. There is a serious debate to be had about the way in which Britain engages with the world and Europe, and the way in which individuals in this country feel their rights are and are not being protected. The one observation that I bring to that is about when you begin to engage with people who have an interest, and are intelligent and open minded, but have in some cases very strong viewsI can tell you, where I sit in the Emirates Stadium

people have very strong views; many of them are Daily Mail readers and think it is just an outrage that I teach the European Convention on Human Rights to students from all over the place. You take a case like the prisoners votes case, where the perception is created that somehow the European Court of Human Rights has ruled that every prisoner has to be able to vote in every election in every circumstancein fact it doesnt say that at all; the judgment is rather carefully crafted. You point out to your neighbour, who has been lambasting you saying that it is a hopeless, ridiculous judgment, and you say, Well, just imagine you happen to spend a week in prison, and that is the week in which a general election takes place, and you are in prison for something that is perhaps not particularly serious. You would lose your vote. How would you feel about that? The response is, Well, thats outrageous. Then you say to the person, What about the person who spends four years in prison, and it happens to be just in the bits between two general elections, but that person is able to vote in the elections? and the person will say to you, Is that what they say? Thats ridiculous. So there are points of detail, I think, that when you begin to engage people appreciate that these issues are not always black and white; they are quite complex. Some people will have set views at both ends of the spectrum but I think, within those extremes, there is always room for sensible discussion, which may or may not persuade people, may or may not cause them to review. So the simple answer to your question is: I think people are very interested in these issues. I think the process of engaging in outreach is central to what we do to be able to listen, to be able to take full account of what we hear and to respond, I think, in our recommendations. Q92 Simon Hart: One quick follow-up to that. I was deliberately provocative and I accept fully what you say. I think that is probably a reasonable reflection and I am glad it is. I am very keen on trying to generate interest, but I think interest is more easily generated if people feel that there is some positive contribution that they can make and there is an outcome that they can somehow influence. I think one of the frustrations is: can we make a difference in all of this? That leads me to one specific point, which is that of cost. I suspect there are some serious questions to be asked about whether it is within the grasp of most reasonable people who engage in your debate in the Emirates Stadiumwhether, were they to need the Human Rights Act, or an equivalent, to support them, to underpin their position, they would even have a chance of being able to afford it. I was involved in just one Human Rights Act case in the last 10 years that cost 1 millionof somebody elses money, I hasten to addand it was a very lengthy, very timeconsuming, pretty depressing process. Most normal people cant even begin to take on the might of a country through the Human Rights Act. I think there is a feeling of, Well, yes, it is all very good stuff but it doesnt really relate to me. Professor Sands: The cost issue is one I have been particularly attentive to in my own professional work and activity. I think it is a major problem. I think the cost rules that we have in our courts are obviously a major disincentive for the ordinary person in the street to be able to feel that she or he, if they have a decent case to be brought, is able to bring it. It has to be said that it is hardly being helped by the changes in legal aid rules that are now under way, which will frankly make it impossible for people, unless they are very poor or very rich, to be able to bring proceedings in serious, reasonable cases, and I think we all have to think about that. That is obviously not within our terms of reference.

I listened to what Lord Lester had to say. In this country there are a huge number of individuals who are members of the legal profession, both solicitors and barristers, who get involved in a whole range of cases on a pro bono or reduced fee basis. I dont know of a case that is meritorious that, for example, I or in my chambers or colleagues around me will not get involved in because people ultimately dont have the fees to pay for it. The concern is very often paying for the other sides costs if you lose. That is the real disincentive to bringing a case, and debate has been had about a change to the cost rules, going to the US rules. The counter-argument to that is: yes, but that opens the floodgates to litigation and that creates an incentive, and it is a very difficult balancing exercise. In relation to this issue, I want to touch on one aspect that I am very attached to in relation to the work of the Commission, and it is this. The sense is created by certain media reports that somehow the rights set out in the European Convention on Human Rights are foreign rights, that they are not part of our natural order; they are not part of our value system. One of the things I have been very keen to do in the Commissionand I think there is obviously a high level of knowledge in the Commissionis to remind people of where the European Convention on Human Rights began, who the Rapporteur for the European Convention on Human Rights was. It was David Maxwell Fyfe, a Conservative politician, who played a very active and key role in the mid 1940sthat remarkable period post-Second World Warto put in place minimum rights for all persons in all the circumstances. If you go through the drafting process of the European Convention on Human Rights, you will see that they are very largely informed by the kinds of values you find in English law, in the Magna Carta and so on and so forth. So, in relation to this idea that it is the imposition of the views of others, I have some difficulty with that. If you put this debate in its historical context, look at who actually drafted the European Convention, where the ideas came from, where the norms and values came from, you find that there is a great deal of cross-fertilisation from what one might call English, Scottish, Welsh, Northern Irish values and those incorporated in the European Convention. Q93 Fabian Hamilton: I wanted to pick up a point that Simon made and that you responded to about the pub in west Walesin my case, the bar in Chapel Allerton, Leeds, but it is the same thing. You talked about how important it wasas other members of the Commission have talked about how important it isto reach out, to get away from London, to get away from the stale and pale male image and ensure that you engage with people. Professor Sands, I think you are right that there are many people who are interested, whether it is because of prisoner votes or other issues, or this perception that this is an alien set of rights that is nothing to do with the British constitution. But how are you going to reach out in practical terms? Are you going to come and sit in the pub in west Wales or the bar in Chapel Allerton, or are you going to have formal meetings? How are you going to do this? The methodology is going to be very important as to what information you get back from the public. Professor Sands: It is a very good question and we are in a bit of position, like the European Court of Human Rights or like the English courts, of wanting to listen but not find ourselves completely deluged. We are eight plus our Chair. I think we are all very committed to engaging very actively in this process by the end of 2012. Our Chair will have shared with you the initial thoughts on how we begin the process of reaching out. We are very committed to doing it as a group in all parts of the country. That necessarily meansagain, because of the cost issue and the time issue, which I

think will have been shared with youwe cant, all nine of us, go travelling all over the United Kingdom and spend the next 500 days at meetings. So we are going to have to divide up. We will be meeting in the next few weeks on a number of occasions and, as the Chair will have told you, I suspect that one of the issues that we will be discussing is: how do we divide up? How do we genuinely reach out, not just to the people, the groups, the businesses and the communities who have a particular vested interest, but try to get beyond that into the sections of the community? That is always a very difficult issue to do. I think we are open to your ideas as to how that can be done. Q94 Fabian Hamilton: You mentioned anecdotally your conversations at the Emirates Stadium when you go to a football match. Will they have some sort of equal value to the formal meetings? Professor Sands: No, there will be formal meetings. There have to be formal meetings, and I think the trick will be to find a way to ensure that those who attend the formal meetings are perhaps not just the usual suspects and that we find a way to reach out. Whether that means Members of Parliament letting their constituencies know that a meeting is taking place and encouraging all who have an interest to engage and to share their views, is one way. There are lots of other ways that we can think of. I think we are acutely aware of the difficulty that we dont only want to talk to two or three or four sides of the argument whose views are already well known. One of the things that I have had, and that I am sure other members of the Commission have had, is a deluge of emails from people with views across the spectrum. I have withheld from engaging in those because I feel it would not be proper until we have a sense of how we are going, but there is obviously a very high level of interest and we need to respond to what you are articulating as a very serious issuenamely, how we make sure we reach not just the usual suspects but people who have insights and can share in their daily lives how these issues are likely to be affected and what they care about. We will be open to that. Q95 Fabian Hamilton: I hope that you will be able to use MPs because MPs have contacts and connections throughout their constituencies that many other individuals dont have. So we should be a resource to the Commission. Professor Sands: Lord Lester already mentioned that there are certain advantages in seven of the eight members being of the Bar, but there are also certain disadvantages. We dont have that same connection with the public, perhaps, that MPs and other sections of the community will have, and we will need to bend over backwards to reach out. Fabian Hamilton: That is very encouraging. Thank you. Chair: I think there are a couple of very strong lines coming from everyones questioning, which is about the Bill of Rights or rights in general being rather esoteric perhaps owned by the legal profession rather than the population at large and being judicial rather than political. I am sure the Commission will take those things on board. Q96 Andrew Griffiths: Professor Sands, if I can take you back to your discussion at the Emirates with your football fanmore than onewho was outraged that somebody should be in prison for a week and lose their vote. That debate has happened here. We had that debate about prisoner votes in Parliament and it

overwhelmingly voted in favour of keeping the status quo, where votes were not given to prisoners. You went on to say, I think, that it was not about the imposition of the views of others on Britain, but that is clearly what it is. If you have a situation where the sovereign Parliament votes against giving votes to prisoners, yet the European courts are saying that it must be imposed, that clearly is an imposition of the views of others on the British system, isnt it? Professor Sands: It depends on how you address the issue. That is a question that I get regularly in my classes at UCL. It is about democracy and accountability and who decides. The simple answer to the question is, if you are minded to give that answer: the United Kingdom Parliament voted to ratify the European Convention on Human Rights and give to the European Court of Human Rights the power to interpret the Convention, and so democratic accountability is achieved in that way. The point that you raise is a very important one. What happens if you get a conflict of views between a body like the European Court of Human Rights on the one hand and an English court or the English Parliament on the other hand? That is a question that arises across the spectrum, literally now for every country in the world. I spend a lot of time in the United States. Imagine the reaction of the United States when they receive an award of an arbitral tribunal in a North American Free Trade Agreement case that rules that the United States and its Supreme Court have fallen into error on a particular matter. They have exactly the same reaction, Why is this foreign arbitral body imposing its values on us? and it is the same answer that I gave before. The United States ratified the North American Free Trade Agreement and gave it to an arbitral body. The reality is that we live in an increasingly complex world. We have decided that we cant go it alone on all things. We have ratified a large number of treaties. I personally would like much greater parliamentary scrutiny of the treaties that we ratify. Q97 Andrew Griffiths: I am sorry to interrupt, but you can understand the publics suspicion or frustration when they see not only Parliament voting specifically on an issue, debating at length an issue, but the Prime Minister of the country saying that it makes him feel physically sick that we are going to give votes to prisoners, to then be told that doesnt matter because a European judge has said that this must happen. Professor Sands: I dont think anyone says it doesnt matter. I think the reaction is there is an understandable disconnect between the view of the British Prime Minister or the Parliament on the one handassuming it to be thereand the views of the European Court of Human Rights on the other hand. The answer to that is: that is the price that has been paid. Ultimately, and the questions were put, the possibility of withdrawal exists and that is a matter for the public to decide onbut they havent decided so far to do that. Q98 Andrew Griffiths: Can I draw your attention to something? We get these very helpful notes from the Secretariat here and there is a key quote relating to you, a report on a Young Solicitors Group round table in June 2007. Tell me whether this is accurate about your views. Philippe Sands said, The problem has not been what is there and how it is written down, but educating the public about what Human Rights really are and not the common presumption that they are a charter for the undeserving. Do you think that is right?

Professor Sands: I have already alluded to the fact that I think there is a great deal of misinformation about what the European Convention is, and how the European Q99 Andrew Griffiths: So it is just that the public arent clever enough to understand it? Professor Sands: No, that is not what that quote says. The publicand I include all the people around me in the Emirates Stadium; I include my mother, with whom I have active conversations on these issuespick up most of their information from conversations with friends, from the media, and that is entirely right. The media and this is across the political spectrum; I dont think it is a left-right thingoften does not communicate information in a way that is necessarily complete or accurate, often for very good reasons. Newspapers cant have 27 pages on a judgment of the European Court, so it is a captured in a snapshot, one line, European Court rules or English court rules or Prime Minister says. We know from our own lives that those snapshot lines often dont capture the full complexities. The only point I was making then, assuming that to have been an accurate quotation or paraphrase, is the same point that I think I made at the outset: that when you sit down and have conversationsand the same goes in reversemy neighbour at the Emirates may make a point to me and I will think, Well, actually I didnt think about it like that. Thats pretty useful. That gives me a sense of maybe why I need to adjust my thinking on that. The only point that I am making is that we form our views and our impressions in ways that are often based on incomplete accounts of what has happened, and we all have to be open and ready to adjust our viewsand I include myself in thatin relation to facts as made public. Q100 Andrew Griffiths: One very final quick question. Clearly there are different views on this issue within the Commission and that is going to make for an interesting time for you all. How do you avoid deadlock? How do you avoid ultimately everybody sticking to their positions and nothing coming as a result? Professor Sands: I think what you may have picked up from a number of people who have appeared before you is one of the happy surprisesthe way in which we have begun. Across the board with everybody, there has been a genuine openness, a willingness to listen to everything that has been said and not to come to the process with a closed mind. We have a really excellent Chair who has helped create conditions that I think everyone has been very open to. There will be points of agreement and no doubt there will be points of disagreement. It may be that on some issues there is a disagreement that reaches the point of deadlock. At this stage of the process, I have to say I feel pretty optimistic that on the two big issues that we havefirst, looking at restructuring the European Court of Human Rights and, secondly, the merits/demerits of a UK Bill of Rights we may surprise everyone and find that, on many of the issues of principle, there is some degree of consensus. However, each person will ultimately, in an individual capacity, have views on one thing or another on which he or she perhaps feels particularly strongly. I would not want you to leave this session with a gloomy sense about the willingness of the members of the Commission to serve genuinely in the public interest, to look with an open mind at these important questions and do their very best to try to reach a consensus on as many issues as possible. That is helpful across the board.

Chair: Professor Sands, that has been very helpful. I think there are some parallels between the Emirates and the parliamentary debate that we had on prisoners voting. It was pretty much a pre-season friendly with not very many people there, although certain sections of the crowd were very well organised, I do admit that. Professor Sands: Lets hope we are all in the Champions League final. Chair: Perhaps the outcome of the reserve match may be slightly different when we have all had a little bit more time to look at the additions to the squad over the summer. I dont know. There is a long way to go, as Arsene Wenger would say, and there is a lot of work that the Commission is going to do that will be extremely valuable. Professor Sands, I wish you well in the work that you and your colleagues are doing on the Commission. Thank you for coming this morning. Examination of Witness Witness: Baroness Kennedy of The Shaws QC, Member of the UK Bill of Rights Commission, gave evidence. Q101 Chair: Helena, welcome. Baroness Kennedy: Nice to see you. Chair: From the substitutes bench. Baroness Kennedy: Let me say immediately that I hope that the language is not all going to be conducted with metaphors about football. I know you guys love that. Chair: I am afraid your fellow Commissioner led us astray, so we have all sort of followed him. Baroness Kennedy: I know. I know you guys love it. It is one of the ways in which middle class men like to convey a camaraderie with the working classes. Chair: It is the way it works. Baroness Kennedy: So you wont get me making references to football. Chair: You will have to tell us what your favourite line of metaphors is and we will follow your lead. Baroness Kennedy: No, you will have to wait and see. Chair: Welcome. We have spoken to a majority of your colleagues and to your Chair. I think there are a couple of your colleagues who we have not been able to snare just yet, but we are basically doing pre-appointment hearings once you have all been appointed, which is an interesting way to do itpost-appointment hearings, perhaps. Perhaps I can ask my colleagues now to kick off a line of questioning. Q102 Fabian Hamilton: I apologise for having to leave a bit early but perhaps I could come in on the question that I asked Lord Lester at the beginning, which is about the make-up of the Commission itself. You are the only woman on the Commission. The rest have been described as pale and stalealthough I think Lord Lester proved he certainly wasnt staleand male, apart from yourself. How are you going to reach out to the public, whether it is the crowd at the Emirates Stadium or the fictional barwell, actually the real barin Chapel Allerton, Leeds, or in west Wales in the pub, in other words, all over the country, to get to people who find this subject rather tedious, are angry about the prisoner votes issue but really think this is an outside imposition? They are perhaps misinformed, perhaps not, but how are you going to connect with them? It is a question I asked Professor Sands, but how are you

going to connect when you yourselves represent a particular section of society and a very well qualified one at that? Baroness Kennedy: It is a challenge that is presented to most public bodies. As some of you will know, I chaired the inquiry into British democracy, the Power Inquiry, and we were set up as a commission. It was the Rowntree Trust that set that up. When that was set up in 2006 I felt very strongly, the same sort of thing. Although it was a reasonably diverse group of people, young and oldand there are not very many young folk figuring in this Commissionin order to have the opinion of the public, I felt very strongly about a number of things. We took the Commission around the country and spoke to people; we didnt just invite people to come and speak to us, because that way you get people who have already formed opinions and therefore want to engage and have their say. What we did was invite ourselves to community meetings, to residents associations. We had a very good person on the ground who found a way of connecting with meetings that happened up and down the country, and it was rather useful to have us added on at the end of their normal agenda, to say, Were coming along to ask you: why are you no longer voting? Did you vote? Why didnt you vote? Do you belong to a political party? Why dont you belong to a political party? What do you feel about the political class? and so on. We found that was one of the best ways of getting the real opinion of the public. I have listened to the end of the last session with Philippe Sands. We keep referring to the public, and I do want to remind everybody that the public are not just the views that are expressed in The Daily Mail. I know that you are constituency MPs and that you will get to meet with constituents, but you do have to make an effort to get to people, other than the normal, and you also have to get to people beyond those who already have a formed opinion about which they are vociferous. I think that we have already had discussions on the Commission to say, How do we do that? We are looking at ways of doing it and we are going to be quite active in seeking to reach that wider public. Q103 Fabian Hamilton: Will you follow some of the lessons that you learnt from the previous commission that you mentioned? Baroness Kennedy: Yes. Our Chair has been very active about wanting to have ideas from people about how to have that outreach, and I have already made a number of suggestions about how that can be done. I dont want to sound like the professional commission person, but I did chair the Human Genetics Commission and in the same way. When we were looking at ethical issues around genetics, we had to reach out beyond the community of interest. Again, we did that by having meetings where you tried to draw in a wider public. So over a period of about 10 or 12 years, I have been looking at ways in which you can engage the public in commissions of this sort, so that you dont just have the great and the grand making decisions that are remote from what public sentiment is. Q104 Fabian Hamilton: Will anecdotal conversations in bars and pubs count? Baroness Kennedy: It is useful but not over-useful, because I am a great believer in the deliberative process and my experience with juries. Unlike a number of people on the Commission, I spend my life in front of juries and I am a great believer in juries. When people hear the arguments on all sides, and hear good evidence, they reach opinions based on evidence. So I think it is important that you have a discursive

and proper evidential base before people rather than the taxi driver in the London cab. I think you need to have a better debate so that people hear the view. I heard the questions at the end about the business on prisoners voting rights. It is interesting, because I have spoken at a number of public meetings recently around law and stuff and people have strong views about it, but when you say, But would you feel differently if you only gave the voting right to people who had a sentence of under four years? they feel differently. It is the horror of the idea of somebody who has murdered or who has raped women. That seems to be repugnant to people, but when you say, What about the argument that people who are on lesser sentences that you want to engage with, you want to draw back in, particularly the young who get into trouble early on? they feel differently when you engage in argument about it. So I think the knee-jerk response is often thinking about the serious end of crime, and what we know is that the margin of appreciation would allow for an interpretation of the decision in Europe in a different way, one that suited us culturally and fitted with public views. Q105 Fabian Hamilton: So you would reject the solution of the Republic of Cyprusto give all their prisoners the vote provided they voted in personwould you? Baroness Kennedy: You would be surprised to know that I felt unhappy about the European decision on the voting thing, partly because I do think there are some things that you secure. I am in favour of prisoners being able to vote, but I think you secure that by public campaigning, persuading people; there are some things about which you should seek to move things forward by campaigning and not by diktat coming from on top. I think that those are often problematic things and it is how you find the match. Of course, what people dont appreciate is this business that there is a margin that when the court makes decisions it isnt operating by diktat; within countries you are able to interpret it in a way that you think is right for your country. I would have thought that it was perfectly open to us to say that people who have low sentences, within the range of one to four years or one to five, might be able to apply for a postal vote. It wouldnt be very demanding on the system to provide postal votes for them. You would find very few of them asked for it, because if you look at the countries that do it very few prisoners actually ask for it, but I think that it would still allow for that engagement with civic life and so on. So that is my view. Q106 Simon Hart: I go back to your point about public engagement. I accept that it might be difficult to get standing room only in village halls on these particular topics, but what about the Commission using proper qualitative research, which is of a pretty high quality these days, in order to put the arguments as you have described? Might that be a route that the Commission would take to ascertain proper public Baroness Kennedy: I certainly think that on some things you can do that. On some things you do need to have the arguments put forward so that people can hear them. Q107 Simon Hart: On qualitative research that would be the case. Baroness Kennedy: I know, but I do think that it is often quite useful for people to hear it, rather than just to see it written when they make a decision and you are ticking off what your alternatives are. I certainly think that if we could afford it and it is about money here, because we have already discussed itwe want to

undertake research, but we are looking at how much that would cost the public purse. Also, there are some areas of this where some research probably has already been conducted. We are doing a trawl to find out what research has already been done so that we can draw on it rather than reinventing the wheel. So, certainly there is going to be an effort to draw on research and, if necessary, commission research. Q108 Simon Hart: Can I follow up with a slightly different question? I dont know if you heard the evidence of Professor Sands just before you. Baroness Kennedy: I only came in at the end of that. Simon Hart: I hope I am not going to misquote him; he may put me right from the back of the room. We were talking about democratic accountability and parliamentary sovereigntya point that Andrew Griffiths, on my right, made. I wondered if you shared his view that because the nation signed up at some previous date to a contract regarding ECHR that, therefore, provides a get out of jail free card for any decision made thereafterthat is, We can justify our position on prisoner voting because we signed up X number of years ago. That was the implied escape route that we were given. Do you share that view? Baroness Kennedy: No, I dont share that view. There should be opportunities for revisiting certain things and I think that one of them, for example, is around the business of the court. We have seen a great expansion of the court and many of the countries that have come into the embrace of human rights do not have a strong tradition of an independent judiciary, or of the judiciary being seen as a profession with esteem that is highly regarded and so on. When I was chairing the British Council, I went out to Russia. We did a lot of work in trying to get the rule of law; we were supportive of developing judicial independence and so on. One of the problems was around the fact that the judiciary had not been held in high regard; it wasnt a profession to which people were drawn. Therefore, there was a sense in which you were dealing with a very different level of judiciary. I think that that will develop inevitably and it will take time. I think that there ought to be far better judicial training in the court as it is currently constituted, given the expansion that is taking place and how different it is. I think there are lots of things that you have to inject into it. You have to constantly keep systems under review. We have had to do that with our own legal system, and I have been one of the people who at times has been an advocate of ways in which we make the system better. One of them has been about much better judicial training. So I am not somebody who says it is set in stone. I do think, though, that having a templateand that is what I see it as, a template of common values shared by the countries that sign up for itis a very useful, good thing. It gives us a grammar and a language with which to conduct our discourse with the world. Therefore, I think having that template is very important. So that is my starting position. Q109 Mr Chope: Our attention has been drawn to an article that you wrote in the Guardian on 19 May 2010. Baroness Kennedy: Non-negotiable. Mr Chope: Well, you and I share one thing in commonwe got it wrong in thinking that the AV referendum would destroy the coalition, which you were predicting then and which obviously hasnt happened. In that article you are very strongly in favour of the Human Rights Act and proud of what it has achieved, but earlier on you were saying that you thought it was important that your Commission

should be effectively evidence-led. Therefore, does it concern you that the possible repeal of the Human Rights Act has been ruled out by your terms of reference at the very outset? Also, do you ascribe those terms of reference to what you described in your article as saying that, at a post-coalition Lib Dem Party meeting on 16 May in Birmingham, Chris Huhne and Lord McNally threatened to resign from the coalition if the Human Rights Act was repealed? Baroness Kennedy: What they are talking about is what is in the Human Rights Act, and what is in the Human Rights Act, basically, is an incorporation of the European Convention on Human Rights. What they are saying is that they dont want to see that set of values being written out of our legal system; they want that template to be part of it. I think that you will find that among everybody on the Commission there is a shared view that there should be a baseline of accepted values, which are essentially the values of the European Convention. The debate is about whether there should be additional things that are culturally in keeping with the common law. If you want to look for the kind of things that one would want to debate around that, there are issues like habeas corpus; we saw the issue of habeas corpus arising about locking people up without trial or 90 days or whatever. Should that be embedded in something? There would be an issue about jury trial. It is difficult and problematic because how do you define the kind of offences that jury trial would be available for, which might shift over time? Is that something that should be in a Bill of Rights that is essentially embracing so many of the values that are particularly British? There may be other ones, too. People complain to me about the fact that there is nothing very specific in there about children. There are special considerations for children, and so it may be that one would want to say things about that. What people are agreeing is that there is a set of values, which you have to remember. We all keep repeating it, but it has to be told to the public: the people who were at the heart of creating the European Convention on Human Rights were British lawyers, and they drew on common law values. I am a common lawyer. My love of the law is about the fact that the common law gives you levels of flexibility but is also embedded in principle. That was what we were bringing to Europe, which was, rather than a Napoleonic codified system, that you had something that was based in principle, which was the common law element that we brought in. So I dont think there is much disagreement with the people on the Commission about there being a baseline of values, which are essentially those ones that are in the European Convention. The question is: do you add to them? For me, it is a question of whether there is an opportunity for human rights-plus, but I certainly dont think that people are talking about human rights-minus. Q110 Mr Chope: Surely it is not a question of the text of what is contained in the European Convention, because I dont think there is any argument on your Commission, across this Committee or among the general public on that. The question surely is whether common lawyers should be able to interpret the common lawin other words, whether it should be British judges who are interpreting these principles as they apply to the United Kingdom rather than what is happening at the moment, which is that 46 of the 47 judges are foreign judges interpreting these common law principles. When you passed the Human Rights Act 1998, in the end it was not opposed by the Conservatives, as you point out in your article, because it was thought that it was bringing rights back homethat the interpretation of these principles would now rest with the UK courts. That clearly has not worked, for a whole range of reasons.

Baroness Kennedy: You see I dont agree with you that it has not worked. I think it has worked, but Q111 Mr Chope: The prisoner voting thing is a living example of where that has not worked. Baroness Kennedy: That is the one that people got exercised about, but I dont think that you would say it has not worked; we are moving into hyperbole when we say that it has not worked. Our judges have been interpreting the European Conventionand it is not just at the Supreme Court level, but all the way through and it doesnt create problems. People feel comfortable with it. If you talk with most practitioners, using the principles of the European Convention, using the values is not in any way in contradiction with our working as common lawyers. It doesnt feel uncomfortable to us. In fact, in many ways we feel it has enriched the language of our discourse in the courts. You may feel that the decision that was made around the vote on voters rights for prisoners was moving into an area beyond the remit of the European Court. We can have a debate about what the European Courts remit ought to be, how the margin of appreciation should be interpreted, the judicial dialogue and whether we should be listening much more to how systems might be different, but having the European Court there as the overarching court is one of the things that creates the embrace, so that we are able to have a decent conversation with places that dont have the human rights standards that we have in this country. If we are not signed up for that, and we dont engage with that court, we are going to lose our opportunity of playing a very powerful role that Britain does play in the international arena. I think we would be descending into a very provincial way of seeing the world if we decided that we were not going to engage with that court. Q112 Mr Chope: I think you overstate your case Baroness Kennedy: We were accusing each other of that. Mr Chope: and referring, effectively, to the British Parliament and the sovereign people as being provincial. Baroness Kennedy: No, I am saying you are being provincial. Mr Chope: We are a nation state and surely our own elected Parliament should have the right to decide on a lot of these issues, rather than leaving the interpretation of the Convention to a whole lot of foreign judges. Baroness Kennedy: That characterisation is not an accurate one. I think we probably have the best Supreme Court in the world; our judges are of the highest quality and the decisions that are made in our Supreme Court are ones that we should be feeling very proud about. Mr Chope: For clarification, I am not criticising our Supreme Court judges, because as far as I know they are all British nationals. Chair: Chris, you can come back in a second. Baroness Kennedy: Christopher, what is your answer to this? At this very moment Scotland is saying the same thing. We have a different legal system. They are saying, Why should we have to defer to the Supreme Court down there in London and should we hive off? The Caribbean, which comes here to the Privy Council, often says, Why shouldnt we be having our decisions made at home? Sometimes engaging with a court that has a wider remit allows for a different kind of dialogue, which I think is a very useful thing because it is how you enrich the rule of law around the world.

I am in favour of there being this overarching court for the whole of Europe and our playing a powerful part in it, because I think that when the judges in that court hear from British lawyers, they always make the comment about the high quality of lawyering that comes out of this country. The reason why is that we are so respectful of law and we must not retreat into this notion that we are only going to conduct it within these isles. We have to conduct it with the rest of the world and play our part in enhancing the rule of law around the world. I think for us to retreat from that would be a source of regret for us as a nation, and it is about our grand nation. I think it would be a very regrettable position to take. Chair: I am going to move on now to Andrew. Q113 Andrew Griffiths: Helena, thank you for coming along, and thank you for taking part in what I think has been one of the spikiest Select Committee hearings we have had for a while. Baroness Kennedy: Oh, lets have fun. Andrew Griffiths: So it has been good fun. Baroness Kennedy: I am a believer in that. Andrew Griffiths: Chris asked many of the questions I was contemplating putting to you. We have heard from you and from others today about this idea that it was founded by British lawyersthe common lawyer, as you called it. But do you accept that what we have seen in many cases now is judicial activism from the courts that there is a move away, the courts are moving away from the founding principles and are using it to drive an agenda that is a million miles away from where it started? Baroness Kennedy: No, I dont see it like that. Are we talking about our Supreme Court or are we talking about the European Court? Andrew Griffiths: The European. Baroness Kennedy: The European Court. I think that law evolves. We see it in the United States; if law becomes set in stone, so that it doesnt evolve to deal with the way in which the world is changing and our societies change, then you are going to be in trouble. For example, if we were to look at the business of homosexual rights, even 20 years ago, 30 years ago, it would have been a very different position. The world is shifting. There is a much greater desire to see that people are dealt with fairly in our societies and that they are able to live their lives, having made their choices about their sexuality. So we have to evolve. I dont see that as activism; I see that as about responding to the world. Q114 Andrew Griffiths: Helena, you rightly used the issue of gay rights and others use the issue of hanging, but those were cases where the British judiciary led the British public and there was a change in the mood of the British public that was reflected in the change in the laws. What we are seeing in the European Court is a move that isnt in tune with the views and the values of the British public, and I think that is the concern. Not that laws have to evolve and have to constantly change and adaptwe accept thatbut that the priorities and the values of those laws as interpreted by the European judges, by the European courts, are no longer in tune with the values of the British public. Baroness Kennedy: I dont know if you are aware of it, but you have just said that the judiciary led the change and the public followed in relation to hanging, and quite often it is that law sends out signals and that it takes time for the general public to follow on that because they are acting in relation to certain kinds of principle.

Would you have called that activism when that was the position that was done on hanging in this country back in the late 1950s and 1960s? Q115 Andrew Griffiths: No, because it related to debates that were happening in the British public and the British Parliament. There was a tie, there was a connection that brought the three things togetherthe judiciary, the Parliament and the British publicbut there isnt that connection, I dont believe, with some of the priorities that we are seeing coming out of Baroness Kennedy: You would have to point me to the things where you think there isnt that kind of dialogue going on. I think there is. Lets take the example of prisoners rights. I have been on panels with people like Douglas Hurd who is in favour of prisoners voting rights. I have often spoken at public things where that issue has come up. So that has been around for some time. Certainly over the last decade I have spoken on things where that issue has come up. So it is in the public domain, it is in the ether and it is around and it cuts across political parties, let me tell you, that people support it. Q116 Andrew Griffiths: It is, but if you look at every survey that has been done, if you look at the vote that took place in Parliament, the vast majority of the British public, the overwhelming view of Parliament when we took a vote on it, was to oppose votes for prisoners. Yet the European courts are at the opposite end of the spectrum. Baroness Kennedy: I think as late as 1970, 1980 if you were to ask the general public were they in favour of hanging you might have got the same responsethat they were in favour of hangingand that they wouldnt have responded in the way that you are suggesting that they had become in favour of it. I think that often it depends on how you ask the question. When I go to public meetings now and if the issue comes up about prisoners rights, I think you are right that if you say, Do you think prisoners should be allowed to vote? people will often in the first instance say they shouldnt be allowed to vote, because they are thinking of rapists and murderers. Then when you say to them, But what about people who are there for low level crime, who are young, who you want to draw back into the community? and then you take their vote again you find a very different response. I dont think the debate has been conducted in the way that creates the kind of conditions Andrew Griffiths: That is not reflective of my postbag, and I think it is not reflective of the postbag of many Baroness Kennedy: Of course, the problem with postbags is that postbags are not a good measure of the kind of discursive thing that I am talking about. If you were to have that conversation with one of your people who have written to you Andrew Griffiths: Polls in the newspapers. The BBC website did a poll, I think, that said Chair: Andrew Baroness Kennedy: It depends how you ask the question is the answer to that. Q117 Simon Hart: It sounded to me horribly like you were saying the public really doesnt understand, that they are too stupid to make an educated judgment on what they read in the paper and what they discover. I find that really worrying. Chair: Simon, could you ask the question? Baroness Kennedy: Simon, can I just say to you, if you read anything I have ever written, and I have written a couple of books on the law, I always say that the

whole business of advances in the law has to be conducted as a two-step: it has to have the public engaged with it, that you cant move too far ahead of public opinion, but the debate with the public has to be a good debate. So around lots of things, around the conduct of cases and the issues of crime, when you have a proper debate with the public and they hear the evidence, for example, on imprisonment, they can start off with the position of saying Throw away the key, but once you start having a discussion about the impact of that on families when you imprison women too readily, when you imprison people for low level crime, they end up with a different position. What I always feel is that it has to be deliberative and they have to hear the evidence. So I am not satisfied that a postbag to an MP is a good way of measuring what the public would think about allowing people to vote who are only there spending a short time in prison. If you said to the public, or if you had put the vote on the basis that or if you asked as a poll, Would you be happy for people on low level sentences up to four years maintaining their right to vote by postal vote and being able to ask for that right?, I bet you anything you would get the majority of the public agreeing with it. Chair: I think we have overrun and we have had a good run round that cou rse. Baroness Kennedy: All I would say to you, Chairman, is you can certainly expect that I will be playing a very active part on this Commission and that I will make it entertaining and certainly lively. I dont think it will be a dull process. Chair: This is Kennedy activism as opposed to judicial activism, which we are very used to. Baroness Kennedy: Absolutely. Chair: Helena, thank you so much for coming today. I extend the good wishes of the Committee to you, as we have to all members of the Commission. You have a tough job ahead of you but we have no doubt, given the quality of the presentations we have heard today, that you are absolutely up to that. We look forward to your final results. Baroness Kennedy: Good. Chair: Thank you all again.