JUSTICE JOURNAL The JUSTICE Journal aims to promote debate on topical issues relating to human rights and the rule of law. It focuses on JUSTICE’s core areas of expertise and concern: • human rights • criminal justice • equality • EU justice and home affairs • the rule of law • access to justice www.justice.org.uk Section head JUSTICE – advancing justice, human rights and the rule of law JUSTICE is an independent law reform and human rights organisation. It works largely through policy- orientated research; interventions in court proceedings; education and training; briefings, lobbying and policy advice. It is the British section of the International Commission of Jurists (ICJ). The JUSTICE Journal editorial advisory board: Philip Havers QC, One Crown Office Row Barbara Hewson, Hardwicke Civil Professor Carol Harlow, London School of Economics Anthony Edwards, TV Edwards JUSTICE, 59 Carter Lane, London EC4V 5AQ Tel: +44 (0)20 7329 5100 Fax: +44 (0)20 7329 5055 E-mail: [email protected] www.justice.org.uk © JUSTICE 2006 ISSN 1743-2472 Designed by Adkins Design Printed by Hobbs the Printers Ltd, Southampton C o n t e n t s JUSTICE Journal ContentsTitle title Editorial WritingAuthor it down name 4 Roger Smith Papers Five years on from 9/11 – time to reassert the rule of law 8 Mary Robinson Politics and the law: constitutional balance or institutional confusion? 18 Jeffrey Jowell QC Lifting the ban on intercept evidence in terrorism cases 34 Eric Metcalfe Articles Parliamentary scrutiny: an assessment of the work of the constitutional 62 affairs select committee Alexander Horne Change in the coroners’ courts 75 Rachel Brailsford Multiple discrimination – problems compounded or solutions found? 86 Gay Moon A solid foundation for the house: does the EU have the legislative 103 competence to harmonise areas of member states’ criminal procedure laws? Maik Martin Childhood on trial: the right to participate in criminal proceedings 112 Sally Ireland Book reviews Indirect discrimination: a case study into the development of the 122 legal concept of indirect discrimination under EC law Christa Tobler Race matters: an international legal analysis of race discrimination 123 Anne-Marie Mooney Cotter Criminal justice – an introduction to crime and the criminal justice system 124 Peter Joyce From Newbury with love: letters of friendship across the iron curtain 126 Anna Horsbrugh and Marina Aidova How Law Works 127 Ross Cranston JUSTICE briefings and submissions 128 1 March 2006 – 31 October 2006 Cumulative Index 2004-6 130 3 JUSTICE Journal SectionE d i t o r i a head l Editorial Writing it down Suddenly, the air is full of cries for a ‘British Bill of Rights’ (David Cameron);1 being ‘more explicit about shared values’ (Gordon Brown);2 and even a written constitution (Lord Goldsmith).3 Confusingly, these calls are linked to providing ‘a hard-nosed defence of security and freedom’ (Cameron), an emphasis on ‘responsibilities’ (Brown), and assaults on the interpretation of human rights by the courts (Tony Blair and John Reid). A political debate is opening up here. JUSTICE professes its purpose as advancing ‘access to justice, human rights and the rule of law’. In the light of these principles, what is the proper response? Two initial positions seem clear. First, almost every commentator, except the most virulent of opponents (such as Melanie Phillips in the Daily Mail), agrees that it is politically unthinkable that the United Kingdom should seek to pull out of the Council of Europe or the Council’s European Convention on Human Rights. This would be a foreign policy disaster. We would join Belarus as the only two countries between Portugal’s Atlantic coast and Russia’s Pacific shore outside the Council of Europe. Our credibility within the United Nations and organisations such as NATO and the Organisation for Security and Co-operation in Europe would be blown. We would probably be required to leave the European Union. Notably, David Cameron has been very clear on a policy of continuing adherence to the European Convention. He points to the ‘logical consistency’ of repealing the Human Rights Act and leaving the European Convention. However, he accepts three ‘significant disadvantages’ of such a course: common law protections of human rights are relatively weak; governments can ‘abrogate or repeal’ protections even as fundamental as habeas corpus; UK departure from the European Convention would be a kick in the teeth to all the countries of the former Soviet Union that we have spent the last two decades encouraging to join it. Thus, there is a clear initial conclusion to be drawn. The content of any British bill of rights must, at the least, reflect that of the European Convention, whatever additional protection is given for jury trial or other rights missing from the Convention. Anything else would be a nonsense, the effect of which is rather well explained by Lord Falconer in the Department for Constitutional Affairs Review of the Implementation of the Human Rights Act:4 On the one hand, the Government would remain obliged to comply with all the rights in the European Convention on Human Rights. And the citizen would remain able to take a case to Strasbourg. On the other hand, 4 SectionE d i t ohead r i a l JUSTICE Journal Government, citizens and courts would be confronted by a separate (but presumably overlapping) set of rights for the purposes of domestic law. This would provide, as Lord Falconer says, at best ‘a prolonged period of uncertainty’ in any circumstances where a British bill sought to limit or alter Convention rights. It would create a procedural nightmare. The role of domestic UK courts, legislation and Parliament would be downgraded as litigants simply got their cases to the European Court of Human Rights for decision under the Convention as fast as they possibly could. Paradoxically, the major beneficiaries would be human rights lawyers, whose incomes would rocket, and the major loser the UK government, whose reputation would plummet. There is, however, a twist. This takes us to the second fundamental point: that the UK has been deprived of any debate about the content of the rights by which it is bound. The Convention was drafted during Attlee’s administration; signed and ratified during Churchill’s; the right of individual petition to the European Court agreed during Wilson’s; the Chahal5 case, with its binding effect on surrender to other countries, decided during Thatcher’s; incorporated into UK law under Blair. The Human Rights Act 1998 was largely presented as a way of dealing with a procedural anomaly. The Convention bound the UK but had no force in domestic law: this encouraged excessive litigation and uncertainty. So, the Human Rights Act was a necessary tidying up exercise. The position in the UK can be contrasted with that in Canada where its Charter of Rights was agreed after widespread public debate and, consequently, appears to have entered public consciousness and come to be regarded as something of which the Canadian public can be proud. So, there are advantages to be gained in starting a debate about the content of a British bill of rights or the distinctively British values that it should embody. However, there must be honesty about the impact of our membership of the Council of Europe. There may be room for different feelings about our European commitments but, practically, any debate about British rights must begin with an acceptance of the Convention. This is, admittedly, a significant restriction on debate which the Canadians did not face. However, the situation is not as limiting as it might seem. The Convention was largely drafted by UK lawyers and arguably reflects British sensibilities rather well. So, let us proceed to the issues that are up for discussion and could be added to the content of the Convention. This, of course, immediately opens up a minefield. David Cameron gives us little guidance save that: ‘it should enshrine and protect fundamental liberties such as jury trial, equality before the law and civil rights’. Imagine the drafting issues. There is a deep feeling among the UK public that the right to jury trial is so strong as to be almost constitutional in force. However, the government has waged a long (so far unsuccessful) campaign to restrict it for 5 JUSTICE Journal E d i t o r i a l serious or complex fraud cases. The right to jury trial is, in any event, clearly not absolute. The Criminal Justice Act 2003 proposed to extend the jurisdiction of the magistrates’ courts, and has allowed trial by judge alone where jury tampering is likely. It is therefore likely that there would be considerable debate about the level of seriousness of offence at which the right to jury trial would be engaged, and the extent to which the interests of the efficient administration of justice could impinge upon it. As to ‘equality before the law’, it is completely unclear how this might extend the fair trial rights and ‘equality of arms’ existing commitment in Article 6 of the Convention. It could extend the coverage of Article 6 to a range of currently excluded civil hearings. This might be desirable but it could be expensive. The proposal might also mean that the free-standing equality provision in Protocol 12 to the Convention should be signed and ratified by the UK, but again the UK government has been worried about cost. As to his third example – protecting ‘civil rights’ – the meaning of this is completely obscure. An immediate issue will be access to justice and legal aid. Indeed, in the context of current controversies, there will clearly be pressure to incorporate some better protection of legal aid than is provided by the general provisions of Article 6.