Introduction
May I begin by congratulating the Civil Service College for putting on this event, and by thanking you for coming today?
The Human Rights Act will, I believe, be seen by future social historians as one of the defining events in British constitutional history. That's something to celebrate. But like all such defining events it doesn't happen without a lot of hard work and preparation. And I know only too well - David Omand, the Home Office Permanent Secretary, doesn't let me forget - that most of that hard work and preparations are falling to you. I am grateful - the Prime Minister is grateful - to you all.
Tomorrow is Human Rights Day 1999. So it's a good time to talk about the culture we want you, with the help of the Human Rights Act, to build for the coming millennium.
Meaning of "culture"
"Culture" is one of those words that gets used to mean a whole lot of different things - and sometimes nothing at all. What do we mean when we talk of building a culture of rights and responsibilities in the UK?
These aren't empty words or mere jargon. A rights and responsibilities culture really is our goal. It's what we want the whole public service in this country to move towards. So I thought that it might be a good idea to spend a bit of time making sure we all know what we are talking about.
I want to say something about what I mean when I use the word culture in this context. Then I'll say what key features will be changed by the Human Rights Act and how. I also want to say something about the why of all this - how it all links up with the Government's broad agenda of strengthening citizenship.
First, culture. What I mean by this are
which are historically ingrained and typical of the behaviour of a particular group of people.
A bit of a mouthful. Put simply it's about what counts as a winning argument, what really matters, what makes things tick. The operating system, if you like. In the human rights context we are basically talking about unconscious understandings and assumptions concerning politics, social life and justice.
So building a culture of rights and responsibilities means bringing about changes in that operating system. And it's a challenge.
Rights not new to UK
Let's apply that challenge to rights and responsibilities in the UK context.
The first point to make is that rights and respect for human dignity are clearly not something new for us. It's ridiculous to talk about incorporating the ECHR as if it's going to lead the UK out of the dark ages into some glorious European enlightenment. We had our Glorious, and bloodless, Revolution in 1688 - in Scotland, the Claim of Rights in 1689. Other more bloody revolutions - I'm thinking of France a hundred years later, Russia in 1917 and even America in 1774 - were reactionary in effect, if not intention.
In the nineteenth century it was accepted, even by the French, that we were way ahead of the field. This is the country of habeas corpus. This is the country which produced the Lord Chief Justice who, over two centuries ago, gave as the reason a slave must go free, and I quote:
Even earlier, in 1762, the Lord Chancellor said this:
And isn't it this country which has consistently led the European field on anti-discrimination and equality legislation?
America has pioneered many measures, of course. But when did the USA abolish slavery? A century after those English judges I've just mentioned. The European Convention on Human Rights - all due respect to the UN Declaration - was itself a British export. We did most of the drafting just after the Second World War. Both it, and the Council of Europe itself, had more than a little to do with the United Kingdom. Our ideas, assumptions and reforms concerning liberty and justice have been copied all over the world.
Not only did we have a big hand in drafting the ECHR, we were the first to ratify it nearly half a century ago; and have sought to comply ever since.
Legal significance of the Human Rights Act
So what is new about the Human Rights Act? Allowing people to enforce the Convention rights in the UK courts is a big step. And so is putting all public authorities under a duty not to act incompatibly with the Convention rights. And yes, of course, we must not underestimate the duty imposed by section 3 of the Act - to stretch the language of our law to give a compatible meaning, if at all possible. It's a pretty powerful mixture. It's new law, and it's new constitutional law at that.
I am a lawyer myself by background. I know that some members of my profession will try - at least in the early days - to use the Human Rights Act like a bottle of gin - the best of all possible pick-me-ups. But too much gin can give you a nasty headache. [I never touch the stuff myself!]
The courts are well accustomed to dealing with pick-me-up arguments.
And the Judicial Studies Board and the magistrates' committees are rolling out Human Rights Act training for every single full and part-time member of the judiciary and the magistracy - that's 35,000 people - from January next year. They should be able to recognise Convention points and distinguish the good from the bad. We must look to them to be robust with bad Convention points. I hope and trust they will. Bad Convention points will do no-one any credit. They will serve only to clog up the system - and if entertained too much they could discredit the whole enterprise - though I do not believe that this will happen.
Equally we must look to the courts to spot the good points and deal with them accordingly. We shouldn't see successful challenges as the end of the world. Not everything is a case of Our Wonderful Policy versus The Vexatious Citizen.
I know that all Departments are reviewing their legislation and procedures.
The Human Rights Act will be bound to shine a light on some things you haven't picked up. Don't panic. And please don't behave as rabbits do when caught in the headlamp beam of the oncoming car. Paralysis. Government must go on. It will go on. We must take successful challenges as and when they come.
Some of you will know that the current legislative programme, like legislative programmes before it, contains some changes to remedy Convention points. I do not rule out further changes. How can I when the Convention is, to use the term of art, a "living instrument"? It must constantly adapt to changing social conditions and standards.
But Parliament will need to examine the merits of any change to the statute book. The key point here was well put, if I may say so, by Lord Steyn in the House of Lords' judgement on the recent case of [ex parte] Kebilene [and others]. I quote:
Roughly translated - very roughly translated, Parliament still rules OK.
Unifying set of values
But though Parliamentary sovereignty is preserved, the Human Rights Act will make a significant change to both our legal and administrative cultures. By and large, our legal culture is about finding the true meaning of the law.
In the case of statute, what matters is what Parliament intended. Moral norms and ethical principles don't normally come into it.
The Human Rights Act requires us to look for possible meanings not the true meaning. And the ambition of the Human Rights Act is that possible meanings that fit with the Convention principles and norms are always to be preferred. Deciding day to day legal questions on the basis of such fundamental ethical principles, set out in statute, is a new departure.
And so is the general duty on public authorities, in section 6 of the Act, to look beyond their immediate powers and duties. To look to a wider duty to act compatibly with the Convention rights, unless there is specific primary legislation to the contrary.
Please don't make the mistake of seeing these changes as just about the legal system. We didn't incorporate the Convention principles and norms as playthings for the lawyers. They have a much wider and more important social utility.
The point here is that the Human Rights Act makes the Convention principles and norms all-pervasive. Ministers and all public authorities will need to be ready to show that they have had them constantly in mind in making decisions affecting people's civil and political rights.
In time, the language of the Convention will be the language in which many of the key debates are settled. The language you need to speak to win an argument. And that's a real culture change. Why do it?
I began by saying that the Convention isn't new for the UK. Why do we need the Human Rights Act and the cultural changes I've been describing?
Consider the nature of modern British society. It's a society enriched by different cultures and different faiths. It needs a formal shared understanding of what is fundamentally right and fundamentally wrong if it is to work together in unity and confidence. You can't afford to leave these matters to chance.
The Human Rights Act provides that formal shared understanding. It's an ethical language we can all recognise and sign up to. An ethical language which doesn't belong to any particular group or creed, but to all of us. One that is based on principles of our common humanity.
There's another important point here. The Human Rights Act defines fundamental rights. Rights-based claims must measure up against the Human Rights Act yardstick. This at last gives an answer to the kind of claim that believes it can get special treatment just because it tags a label on to itself saying "I am a fundamental right".
We've all seen them, haven't we? "Slavery and forced labour is unlawful so the council can't make me put my wheelie bin on the pavement." (A true case!) How about: "I've got a right to happiness"? "Wannabe rights" is what these are. Wannabe rights is what the Human Rights Act will confirm them to be. When they say "I know my rights", you can tell them if they are correct or not. If what they are talking about has the special status we have given to the Convention rights.
Those are the rights that will form the anchor for all policy making - and a sail for service delivery. They will provide a common set of values to help unite a diverse society.
So there we have one key argument for a Human Rights Act. To underpin the rights and responsibilities culture we want to build - unity in diversity, and inclusiveness.
Fairness guarantee
And here is another: confidence in the key institutions of the state. You might ask: what's the problem here, and how does the Human Rights Act help address it? You can get the first part of the answer, I think, if you go out of your offices and talk to our citizens, particularly the poor, the ill-educated, or members of minority populations, the black and Asian British, about how they feel about our institutions. How fair they think they are.
How inclusive they believe them to be. How far they really own them.
I think that you will find that the answers fall some way short of a ringing endorsement. I believe that they fall quite a long way short of what we need to build the kind of Britain we all want to see.
I'm not going to try to apportion blame today for this state of affairs. Nor does it matter, I'm afraid, if the institution is in fact much fairer than the perception says. Perception often is reality when you're talking about confidence. The fact is that public confidence in key institutions such as our justice system, the police, the courts, Parliament, education, has diminished. It does need to be increased. It must be increased if we want a healthy democracy.
The Human Rights Act will help make sure that our law and administration do indeed uphold and reflect certain fundamental principles. And give people confidence that they will. The Human Rights Act points to an ethical bottom line for public authorities. It's what you could call a fairness guarantee for the citizen. The Human Rights Act gives the citizen a basis for saying, "this far and no further" in relation to fundamental human rights.
And the Act gives the courts the duty to back the citizen up. All the way to the point where our sovereign democratic parliament has deliberately and consciously produced a different answer. This new bottom line, the fairness guarantee, should help build greater confidence in our public authorities. And that's a vital part of our strategy for getting more public participation. For building the society we want to see.
Rights and responsibilities
The price of the fairness guarantee, of course, is that people can sue and stop public authorities if they violate basic rights. But the key word there is "violate". Actually breaching a right. It's not to be confused with legitimate interference with a right. Still less is it to be confused with balancing a right against other rights, or with the vital concept of rights and responsibilities.
There is an absolutely fundamental point to be made here. The culture of rights and responsibilities we need to build is not about giving the citizen a new cudgel with which to beat the State. That's the old-fashioned individualistic libertarian idea that gave the whole rights movement a bad and selfish name. The idea that forgot that rights don't exist in a vacuum, that forgot the relationship between the individual and the group. That's not the culture of rights and responsibilities we want or need.
The culture we want is not a litigious collection of individuals and interest groups who see rights as a free good and the Human Rights Act simply as a means of enforcing the rights of individuals against public authorities. The culture we need is one which is not always soft when an individual's rights are in play. The true culture of rights and responsibilities may actually sometimes require us to be quite robust about an individual's rights to maintain the rights of others. It's a question of the interdependence of rights. Let me explain.
The Human Rights Act bases itself on the ECHR. And the ECHR, is nearly unique amongst human rights instruments. Because it balances and accompanies nearly everything it says about individual rights. Balances it with detailed statements of the limitations that can be placed on those rights. And rights have to be balanced against other rights. For example, Article 6 says that people must have a fair trial - including the right to examine or have examined witnesses against them. But the European Court of Human Rights says that Article 3 means that witnesses must be protected from inhuman and degrading treatment - and that this can extend to cross-examination of certain victims.
Article 8 -respect for private and family life - is in play if we take a child away from its parents. We must consider the rights of the parents. But we also have a duty to safeguard the welfare of the child. Rights for balancing.
Or consider policies on offences of violence or harassment, where we have to balance a right to be presumed innocent until proved guilty with the need to protect life. Public authorities have duties under the Convention to ensure respect for both rights. These are balances and limitations which reflect the rights of others and of the wider community, and of the state itself.
The balances and limitations in the ECHR amount to a statement of responsibilities. The responsibilities of citizens - as well as Governments - to respect the rights of others. The ECHR recognises that rights and responsibilities are two sides of the same coin. Rights are the headings you find if you glance through the ECHR. But rights and responsibilities are what it is really about.
I have heard people scoff at this: "Show me the word responsibilities in the ECHR" or "What responsibilities are justiciable", they ask. Well the State's are, for a start. The fact is that every right entails a responsibility. But the cynics are missing the really big point. It's this: the responsibilities and duties in the ECHR can be shown to flow directly from what is needed to maintain a society based on modern, pluralistic democratic values.
So you get your rights from your duties. And your rights are based on considerations of common humanity. It's a moral obligation based as much on self-interest as on concern for the common good.
I recognise that this is not the easiest of messages to deliver. The joint Government / NGO Human Rights Task Force is working away at a publicity campaign to help boost awareness of the Act and its meaning - it should start next Autumn. But there is much you can do to help assimilate this message and pass it on. I know that you will be looking at practical implications later in the day. Please don't lose sight of what I have said.
Peroration
The Human Rights Act is one of the key changes in our programme of constitutional reform. But this constitutional reform is not - or shouldn't be - seen as an end in itself. What we are interested in is what I hope you are interested in - why most of us got involved in public service - to help make a better country for everyone to live in. A modern, successful, society which is enriched by different cultures, different faiths. A society which is plural. But a society where there is also unity. And confidence.
Where everyone has a guarantee of fairness in the key institutions of the state. A shared understanding about what is fundamentally right and wrong; about the duties we owe to each other and the wider community; and a willingness to fulfill those duties.
Thank you for listening to me.