# Transcript

MISHAL HUSAIN
The Human Rights Act is a far-reaching statute binding our law making ever closer to the European Court of Human Rights. It gives unelected judges the power to lob laws back at an elected parliament and say, 'think again'. So, should we be pleased or appalled? In this excerpt from the BBC's Unreliable Evidence, transatlantic debate rages between the Washington based Dr John Laughland, a lecturer in politics and philosophy and the London based Lord Anthony Lester, human rights lawyer and champion of the legislation. It starts with Lord Lester assessing what he sees as the new laws' impact.
LORD ANTHONY LESTER
I wouldn't like to frighten the horses. It seems to me that all that we are really doing is putting our courts, our judges in a similar position to the judges of every other democracy. Indeed, in a slightly weaker position because in most other democracies judges can strike down legislation that breaches human rights.
CLIVE ANDERSON
Yes.
LORD ANTHONY LESTER
Here the government have come up with a more subtle compromise in which parliamentary sovereignty is preserved but it's reconciled with the need for effective judicial remedies. So our judges can't strike down legislation. What they can do is to interpret it strongly in a way that's compatible with human rights and only in one percent of the cases are they likely to have to declare that a piece of legislation is incompatible with the Convention.
CLIVE ANDERSON
So they make this declaration that a Westminster statute might be incompatible with the Human Rights Convention and then parliament would presumably have to then amend the legislation. So it's a sort of fig leaf to preserve the illusion of parliamentary sovereignty.
LORD ANTHONY LESTER
No, it's not a fig leaf. What it is is recognising the partnership across the three branches of government. It's the judges' function to interpret the law, it's parliament's function to make the law, it's the government's function to introduce measures now -
CLIVE ANDERSON
Yes, but from what you've said, they could have, we could have said, well the judges will from now on have the power to just declare the legislation from Westminster wrong and strike it up. But instead it's gotten to this form of words where the judge will just say it's wrong and parliament will have to do something about it.
LORD ANTHONY LESTER
No, parliament won't have to because if a government or parliament doesn't want to, the case will then go to Strasbourg to the European Court of Human Rights.
CLIVE ANDERSON
Well I just want to bring in John Laughland who's parked over there in America, and I think is not such an enthusiast for this legislation. You don't like it, do you, Dr Laughland?
DR JOHN LAUGHLAND
No I don't, and indeed I was struck by Lord Lester's attempt to have it both ways. The fact is that under the future arrangements if a law is deemed to be incompatible with the traditional interpretation of human rights, then parliament will be required under British law to revoke it and there can be surely no clearer example of the fact that the sovereignty of parliament is abrogated by this measure.
CLIVE ANDERSON
And is this a bad thing, if we're putting things on a rational footing and having human rights incorporated into our law and across Europe? Is that not a way of getting everybody's rights spelled out for them?
DR JOHN LAUGHLAND
No. Yes, it is a bad thing. It's a bad thing I think for two reasons. First of all because human rights legislation as such is legal nonsense. I'm choosing my words very carefully even though I'm sounding rather provocative. Human rights documents are legal nonsense in the sense that they are expressions of intent. They are expressions of desire. They are expressions of the way we would like the world to be. They contain things for instance like, you know, everybody has a right to equality and non-discrimination and so on. But precisely judicial activity is about adjudicating between people who have competing rights. I may have a right to equality and you may have a right to equality or whatever, and the purpose of a court is obviously to decide between us.
CLIVE ANDERSON
What about when it expresses a general principle that the government may not interfere with an individual's rights? I don't know, I thought you might be interested in the rights of the individual. So if one's entitled to a fair trial and some procedure is brought in by the government that offends against that in judicial eyes, then that's a protection to the individual against some sloppy bit of legislation or oppressive legislation.
DR JOHN LAUGHLAND
Well of course I'm in favour of individual rights and that's why I support the present common law arrangements, because they have been shown to protect those rights far more substantially than any other system over many centuries. But I think behind your question lies a very common misunderstanding and it is often argued, as you have I think suggested, that such legislation does provide a protection from the state. This is frankly an optical illusion. Because all that you are doing, integrating a human rights law into British law, is to displace power from parliament to judges. To put it another way there are in fact no rights against the state, there is no such thing as rights against the state in the sense that if any such right is enjoyed it is obviously enjoyed only if it is protected by an officer of the state, in this case a judge. And therefore if you hive off as I say this kind of law-making power to judges you are simply begging the question, or rather causing the question to be put once again, who guards the guardians? The membership of the European Court in Strasbourg is highly questionable. As you know the Council of Europe has gone on an expansionist binge in the last ten years. We now have sitting inside it countries which are frankly totally lawless, many of which have only recently acquired democratic and legal traditions.
CLIVE ANDERSON
Well, is your objection to this then more that it involves well foreigners? Europeans? Getting -
DR JOHN LAUGHLAND
No. The Supreme Court in this new legislation is staffed partly by people who frankly should not be sitting in judgment over a British citizen.
CLIVE ANDERSON
Yes. Lord Lester.
LORD ANTHONY LESTER
I wonder if could just deal with one of John Laughland's points and try to puncture the complacent assumption he makes which is that the common law was perfectly adequate to deal with all these problems, better than the Human Rights Act. However much he may not like this I have to say that the European Court, that alien court, has had to come to the rescue of our system again and again because our judges couldn't do so: in the area of free speech; in cases like Thalidomide and Spy Catcher; personal privacy in relation to for example the rights of homosexuals; Discrimination; even habeas corpus, that great English writ of habeas corpus. The European Court has given a stronger guarantee of the right to liberty than we did. And what this act does is to bring these rights home to allow our judges to renew the common law, to refresh the way they interpret statutes, in the interests of the citizen against the state. One of the main purposes of the enterprise is to protect individuals and minorities against the misuse of public powers of the state. It's a kind of mixture of Burke and Jeremy Bentham to suggest that parliament knows best, or government knows best. What we must do is to give the third branch of government a crucial role in protecting our rights.
CLIVE ANDERSON
No doubt you heard that John Laughland?
DR JOHN LAUGHLAND
Yes. I'm not surprised that Lord Lester doesn't understand what I'm saying because it's obvious that people who support human rights legislation haven't asked themselves the basic fundamental constitutional questions. If you create a new system of law, and I emphasise by the way the 'new', because despite what you say Lord Lester, the fact of bringing the Convention into British law as you well know does change the constitutional arrangements.
LORD ANTHONY LESTER
Certainly.
DR JOHN LAUGHLAND
And by doing so you create as I see it anyway, a new state-like arrangement and hitherto we have taken the view that it is best to subject such questions to the High Court of Parliament answerable to public opinion, rather than to give supreme authority over these things to a body which is not elected and which cannot be held to account. As I've indicated earlier, it already contains people who I think are very undesirable. The Albanian judge for example worked as a prosecutor in the Albanian state under Enver Hoxha. The Romanian judge has worked in the Romanian government under Nicolae Ceausescu, the Ukrainian spent his entire career professing Soviet law in the Ukraine and I think worked for the Soviet ministry of foreign affairs. And the one -
CLIVE ANDERSON
Well I'm going to just have to - your list is an impressive one. I'm just going to have to ask Lord Lester, are you worried about the quality of these judicial figures from various countries intervening on our hallowed, you know, fair cricket pitch of, sort of, British legal system?
LORD ANTHONY LESTER
First of all I think one's got to be very careful about making those kind of allegations. For example, we have a great British judge there, Sir Nicholas Bratza and I have heard some ignorant politicians of the left criticising his appointment on the ground that he represented Mrs Thatcher in human rights cases against me, suggesting that in some way that cast doubt upon his independence.
CLIVE ANDERSON
Well we're not comparing Thatcher with Ceausescu. At least not in this programme.
LORD ANTHONY LESTER
No, no, no, but I mean I don't think it's a good idea to be defaming judges without any knowledge of the facts. I mean it may be that some of them come from dodgy backgrounds; it may be that they've been rehabilitated. I just don't know. I think that, there are, I think there are problems about the European Court of Human Rights. The worst problem is that half of them are elected every three years and the other half are elected every six years, and the process of election is very dodgy.
CLIVE ANDERSON
Well it'll probably be ruled inadmissible under the Human Rights Act, if we -
LORD ANTHONY LESTER
It should be, yes it should be - it should be ...
CLIVE ANDERSON
Then we'll have to stop and start again then won't we?
LORD ANTHONY LESTER
I'm not suggesting everything in Strasbourg is perfect -
CLIVE ANDERSON
Well I'm afraid that question, I have to turn into a rhetorical question because we've run out of time. That's all the time we've got this week, and indeed this series. Let me just thank Lords Hope, Kingland and Lester and Dr Laughland. And from Unreliable Evidence, good-bye.
MISHAL HUSAIN
Just as well they stopped there I think, or they'd have come to blows. But interesting to see how so many issues from earlier in the course resurface with new vehemence here. In the next few units you'll be examining some of the specific rights flowing from this legal framework.