Attorney Generals Office
Good afternoon,
I feel very honoured to have been invited here today by Policy Exchanges Judicial Power Project. The Judicial Power Project focuses on the proper scope of judicial power within our constitution and highlights how and by whom public power is exercised. Its so influential, and so often mentioned in Parliament, both on the left and right. At times it seems that it is the only public defender of constitutional orthodoxy but scratch beneath the surface of the legal Twitterati, youll find that there is a lot of support for their clear, Diceyan view of our constitution. I want to put on record my thanks to Prof Richard Ekins, Lord Godson and all of the academics and big brains at Policy Exchange for your thought leadership.
My speech today is about equality and rights, and Ive titled it, conflict and the need for clarity. Despite what our critics might say, rights can be difficult to get right. Sometimes, things that seem clear in the abstract become distorted when they are applied in the real world, with unintended consequences. Thats when we need clarity. How do we balance the rights of minorities with the rights of majorities? Or the rights of different minorities against one and other? But we reject this quasi-religious narrative. We know humans are flawed and changeable and there will never be a perfect framework that solves everything. We also know that tolerance for difference, for robust debate, can sometimes be more appropriate than restricting freedom.
Its so tempting to see things superficially.
But all rights, however noble, impose limits and obligations on other people, some with tricky trade-offs.
Should protesters have the right to block the streets? Or block ambulances? How far does a states duty to protect its citizens extend vis a vis a foreign national offenders human right to remain here? Should women have the right to single-sex spaces? Do our feelings about who we are, change the rights to which we are entitled?
There is a now serious risk that the fight for rights undermines democracy and harms the very people for whom the fight was intended to benefit. In the context of a mature democracy - with a responsive and pragmatic common law tradition - is it always right that minority groups impose their claims upon the rest of society? We need to make sure that the costs of protecting rights are worth the pay-off.
The judicially expanded European Convention on Human Rights and the Human Rights Act marked a radical change in how fundamental rights are protected in the UK, with alarming constitutional and practical consequences. We now have a rights culture in a way that did not exist prior to 1998. Aspects of this are causing confusion and distress. Sometimes but not always we see a triumph of common sense, fairness and freedom of speech. Increasingly we see cases arising in the workplace that are symptomatic of a culture where fringe campaign groups, purporting to champion rights, have claimed a moral high ground and have adopted an attitude of intolerance. No doubt right-wingers and left-wingers will disagree on the precise causes of how we got to a place where stating the facts of biology might risk your job. In relation to the Equality Act, the main problem is that businesses and institutions are currently misinterpreting these laws and applying a perceived moral obligation to go beyond the law, when it comes to equality.
The magnitude of the departure from a Parliament-led to a Court-led development of Human Rights law is visible when viewed against our distinct constitutional and political history. The Governments track record on human rights law demonstrates a better understanding of this British human rights edifice, and the importance of incremental changes, coupled with the primacy of parliamentary sovereignty. The Human Rights Act, which borrowed heavily from continental understandings of rights protection, was a significant change in our legal tradition. This stark contrast is still visible today, as the Government embarks on the first-ever reform of the Human Rights Act. The Deputy Prime Minister / Lord Chancellor has introduced a new UK Bill of Rights in Parliament, a further step towards taking back control which I welcome. His work in strengthening our UK tradition of freedom whilst injecting a healthy dose of common sense into the system. This Government needs to enact this legislation as soon as possible.
I will raise three areas where the conflict of rights has played out unsatisfactorily: first, the use of the judicially expanded European Convention on Human Rights to obstruct the Governments action on illegal migration, secondly the use of human rights and its legal test of proportionality as a defence to criminal damage charges and third the gold-plating of the protected characteristic of gender reassignment in the context of single sex spaces.
Despite the debates around these issues, I believe the Government has a duty to confront all of this with intellectual honesty and courage so that clarity might bring compassion rather than conflict.
1. The Tradition of British Human Rights
Human rights are inherited as opposed to natural, and tradition is the tool to ground the abstract in the concrete.
This philosophy is encapsulated in the most fundamental principle of our Constitution: Parliamentary Sovereignty. It is a principle of constitutional law and political fact, which intwined with democracy, allows the British people to fully and directly participate in their own government.
Lord Hoffmann, in ex parte Simms, explains the extent of this Sovereignty for the purposes of statutory construction he said: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. [] The constraints upon it exercised by Parliament are ultimately political, not legal. The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.
Or Lord Bingham in Jackson v Attorney General: The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in ParliamentThen, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wishes. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.
Parliaments voice, through legislation, is the final word. This may appear stark but the fact that this rights inheritance is protected by a moral and political responsibility that is not legally enforceable does not diminish its importance.
The British Constitution was always a combination of legal and political elements, premised on the awareness that individual liberty could not be protected exclusively through legal devices.
We have a rich heritage of rights in the UK. Though weve sometimes fallen short, the belief in equality has been persistent enough in our culture that weve always had loud voices calling on us to mend our ways, like in the case of slavery. We now have a large body of rights for people who work in factories, building sites, drive HGVs and work nights. Weve passed anti-discrimination laws when it comes to disability and sex. We now, rightly, have a right to compassionate leave, paternity leave, maternity leave and shared parental leave.
Our values lie at the heart of the centuries?long development of human rights in the UK. For instance, on womens rights, in 1928 Parliament gave women the right to vote.Between two world wars, it ratified international human rights treaties protecting women and children. The Government promoted same sex marriage. Over the years, administrations have pushed through several human rights statutes such as the Police and Criminal Evidence Act 1984 (promoting rights to liberty and to a fair trial) and the Children Act 1989. The Protection of Freedoms Act 2012 and the Defamation Act 2013 were promoted by the Government to protect privacy and freedom of expression. What these human rights achievements have in common is the leading role of Parliament in setting the scope of protection of these rights.
Further, lets not forget that it was Sir Winston Churchill who made the embedding of human rights a war aim, achieved by the founding of the United Nations and its Universal Declaration of Human Rights. In substance, though, both the UN declaration and the Convention did little more than summarise the rights already enjoyed by British citizens in 1950 under UK law. This is why, for almost 40 years, something like the Human Rights Act was not considered necessary. For Britons, rights were recognised by the Convention, not created by it.
But when it comes to equalities, there is now very little consideration of the costs of affording more and more rights to particular groups, of the negative impact on wider society or how personal responsibilities should define our roles in society.
2. Equality, Diversity and Inclusion
The new sector called Equality, Diversity and Inclusion is a by-product the rights culture born out of the Convention and the Human Rights Act, combined with misinterpretations of the Equality Act.
Often with vastly inflated salaries and armed with a Newspeak dictionary, they have created mighty citadels of grievance across the public sector and made huge inroads into the private sector.
Equality laws have been misconstrued and weaponised to fight those who challenge their views as perpetrators of hate speech, calling for them to be swiftly no platformed or cancelled. The are now many concerning examples of how inc