Human rights: European and United States contrasted…

I read Lord Wilson’s Our Human Rights: A Joint Effort? The Howard J Trienens Lecture The Law School, Northwestern University, Chicago, 25 September 2018  on a warm September afternoon six months ago. I started this post then, but put it to one side. At about the same time, Dr Christine Blasey Ford was being asked questions before the Congressional Justice Committee about her experiences of Judge Kavanaugh, who was then proposed as a United States Supreme Court judge: he has now been appointed. I reflected then on the massive gulf (as it seemed from press reports; and on human rights as Lord Wilson shows) between the United Kingdom and the United States legal systems. Lord Wilson speaks of that gulf. He regrets the insularity of the US lawyers and their narrow view of human rights.

What the Kavanaugh process showed up, most of all, is that though the US may be regarded as the seed-bed of a constitution which illustrates the separation of powers, still Mr Trump (as President and therefore head of the executive) seems, in principle, to be able to pack the US Supreme Court (pinnacle of the judiciary) with his cronies and as vacancies arise. There is a majority to deliver verdicts which match his and the views of many of his supporters. For all the uncertainties of an unwritten constitution in the Union, political views are not reflected (or, if they are, it is only very rarely) in a UK judge’s judgement.

For example, in the past few weeks, the Court of Appeal – in refusing permission to appeal in R (Wilson) v Prime Minister [2019] EWCA Civ 304; [2019] WLR(D) 125 (4 March 2019) – emphasised (at [56]) the point made in the Divisional Court by Singh LJ and Carr J recently in R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin); [2019] WLR(D) 85 at [326], that court process – mostly in cases of judicial review – “is not, and should not be regarded as, politics by another means”. Helpfully in Wilson, though permission to appeal was refused, the court concluded on the subject of citation:

“[76] Given that the application raises issues of wider importance, this judgment should have a neutral citation so that it can be reported (and, where appropriate, referred to in other cases) in accordance with Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.

I have no idea what are the politics of the Supreme Court justices; and that is so even though I have worked a very modest amount with three of them. That is surely exactly as it should be? Appointment of a judge must be kept as far away as possible from the executive (ie the politicians). And that is where human rights, and their enforcement, come in.

Lord Wilson and the European Convention 1950

Lord Wilson’s speech was on the extent to which European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the US Declaration of Independence had fed into one another; and, perhaps, on the extent to which they continue mutually to inter-nourish. He traces the history of human rights legislation, from the right to life (“Thou shalt not kill”: Exodus 20:13) to 1950 and the Convention. In his journey he touches on Magna Carta, the Bill of Rights, the US Declaration, and the French “liberté, egalité et fraternité”.

Of the European Convention 1950 he singles out for special mention Art 10 (freedom of expression) and Art 8 (respect for private life). He comments on the work of the European Court of Human Rights and how Human Rights Act 1998 operates. He says:

“I have developed a close acquaintanceship with [Human Rights Act 1998] and I regard it as brilliant. It made the European Convention part of UK domestic law. As a mere international treaty, it had not, for us in the UK, previously been enforceable as law. So the Act enables everyone in the UK to enforce their Convention rights in UK courts; only if they are then still dissatisfied can they approach the court in Strasbourg.”

Lord Wilson made it plain, for example, in relation to Mexican children taken from their parents, that in UK their separation from their parents would have been based as much on the children’s rights under Art 8 as those of their parents. But, he goes on, the US – with one other country, Somalia – has still not ratified the United Nations Convention on the Rights of the Child 1989, to President Obama’s profound embarrassment.

In truth says Lord Wilson, the “affectionate onlooker” is struck, when it comes to human rights, by the insularity of the US. “The horrors of the twentieth century demanded an international response; but in this the US has been a ‘reluctant participant’”.

“Human rights sound wonderful but they can amount to no more than hot air. They are nothing if they cannot effectively be enforced. Article 13 of the European Convention requires member states to provide an effective remedy for violations of it; and, by making its rights part of our domestic law, the UK considered that it had provided it.”

Enforcement: legal aid and the truth of legal aid

Enforcement, yes; but how does a person who believes herself to be a victim, seek court help without legal advice and assistance? Lord Wilson continued to his US audience:

“But please never dismiss as unimportant a provision about free legal advice and representation: I now realise that it’s as important as any provision of substantive law. In pursuit of its economic policy the UK government has recently felt the need to dismantle much of our precious system of legal aid, introduced in 1949 along with the other two pillars of our Welfare State, social security and the National Health Service.”

What individual was often most in need of help? Who was most often the ‘victim’ who seeks help from court? It was not the rich or others who can afford legal representation:

“…It is, in particular, the disadvantaged who need to be acquainted with their human rights and helped to enforce them; but they are unlikely to be able to do so without free legal advice and representation. And, even [there] the UK is dismantling it indirectly by setting rates of remuneration for the lawyers at levels so uncommercial that, reluctantly, most of them feel unable to do that work. Access to justice is under threat in the UK. Our lower courts are now full of litigants who have to represent themselves, often of course very ineptly. In our own court very able advocates still regularly appear.”

On legal aid he returned to human rights, so central to any civilised state, and emphasised the role so frequently taken on by lawyers who help clients free (pro bono):

“But, particularly when they are asserting human rights against a public authority, they nobly appear pro bono, or for a small fee under the attenuated legal aid scheme; and it constantly offends me that it should be necessary for them to do so.”

One example of victims and their rights, amongst many in the six months since Lord Wilson spoke, is provided by R (K ) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin) ; [2018] WLR(D) 692, (8 November 2018). Sitting in the Administrative Court, Mostyn J found the following against the Home Department, and was able marginally to improve the subsistence position of victims of modern slavery:

  1. Mostyn J rejected – or found as non-existent – the Secretary of State’s arguments as to why existing amounts for victims of modern slavery should be reduced. The payments which had been made were restored at their original level.
  2. The judge considered the meaning of “subsistence” in the context of trafficking. He rejected the argument of the Home Office that “subsistence” here meant only enough to survive on. The state should provide “potential victims of modern slavery substantially more subsistence than people in asylum accommodation” (at [30]).
  3. The Home Department had discriminated against victims of modern slavery (at [35] – [37]), contrary to European Convention 1950 Art 14, Art 4 (prohibition of slavery etc) and Protocol 1 Art 1 (peaceful enjoyment of possessions). This could not be justified said Mostyn J.

As a result the Home Department’s contract with victims was quashed and it was ordered to repay the monetary short-fall to the victims (at [21], [22] and [32]). This case exposes the errors in the Department’s defence and in passing it provides criticisms of their failures to provide guidance over modern slavery following Modern Slavery Act 2015, s 49. Without specialist legal help, whether on legal aid or free, claimants like this are highly unlikely to have recovered even the modest amounts the government should have been paying them. The lode-star of it all was these claimants’ human rights.

Human rights: ‘a joint effort’

Lord Wilson summarised: “To address my title, human rights have been, and in my view should continue to be, a joint effort across the western world and indeed beyond. In that effort lawyers play a major role.” He concluded by foreseeing excellent careers for his audience. He urged them to “strive tirelessly, in whatever way you can, to secure the protection and development of… human rights.”

And for himself? “Sadly I have come almost to the end of my career.” For the wisdom and humanity Lord Wilson encapsulates, that last sentence must provoke sadness.

Featured image is from the UK Supreme Court and shows Lord Wilson in conversation with his judicial assistant, barrister Tom Wood, in 2016. Wood is now a tenant at Brick Court Chambers in Essex Street.