London School of Economics presidential lecture, 22 January 2012, London School of Economics Department of Law
Lucy Scott-Moncrieff, president, The Law Society of England and Wales
Language clearly matters.
'Yes we can' helped propel the inexperienced Barack Obama into the White House, just as 'Read my lips no more taxes' did for the first President Bush.
And we all know the different messages being given when we use strident instead of assertive, or stubborn instead of determined.
I'm particularly interested in the way language is used in the law, in the wording of our laws and in our conversations about the law, and the ways these words can undermine the very purpose to which they are being put.
This government has a particular faith in the power of language: the establishment of the Government's 'Nudge Unit', whereby simple language and imagery is used to persuade people to make different and 'better' choices is evidence of this.
I therefore want to think about how 'nudge' theory can help us with the language of the law.
I'm also very interested in the human rights project, and desperately sad that its ideals and benefits have been so badly misrepresented by people, some of whom clearly have their own axes to grind, but others of whom really ought to know better, including governments, and including this government.
But just as words have been used to vilify the human rights project, words can be used to restore it.
So tonight I want to explore the language of human rights to see whether we can come up with some nudge words and phrases to restore the confidence of the public in laws specifically designed to benefit them, individually and collectively.
While thinking about what I wanted to say, over the last few months, I have been very aware that the Commission on a Bill of Rights was due to report before Christmas - so I have had to live with the very real possibility that the Commission's report would say what I wanted to say, and leave me speechless.
Luckily for me, it didn't, and even more luckily it has offered to me an opportunity to link what I am saying to one of its conclusions, that there needs to be 'better public education and understanding of the present human rights structures and their effects'1.
So I think I can neatly position what I am saying as a response to that invitation, and hope it will add to the debate we need to have.
So what are some of the myths that we need to tackle?
One. The European Convention and Court are part of the European Union.
Two. Our human rights law favours the bad guys over the good guys.
Three. It doesn't reflect our traditions and culture.
Four. The Court goes beyond its original remit.
And five. The European Court unacceptably challenges the supremacy of parliament.
Taking these one by one:
One. The European Convention and Court are part of the European Union
Because 'European' features in both descriptions, this is a misperception that those wishing to cause mischief can easily exploit.
We can't change the words, but we can point out that they are no more connected than Her Majesty and the performers of Bohemian Rhapsody.
Two. Our human rights law favours the bad guys over the good guys
No it doesn't.
Human rights are the rights we have by virtue of being human, (the clue's in the name) and they belong to the virtuous and unvirtuous alike.
So how has this myth come about?
The American essayist HL Mencken hit the nail on the head when he wrote:
'The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.'2
True then and true now.
Much of the current, polarised debate focuses on individuals or groups of people seeking to affirm their human rights who are perceived as, and may well be, bad guys.
This makes a good story for newspapers and phone-in programmes, so long as it is presented as a version of health and safety gone mad, and politically correct idiocy, rather than being presented, more accurately but more boringly, as a decision on the oppressiveness or otherwise of the actions of the state in relation to the individuals concerned.
Abu Qatada is a fascinating case in point.
He is a Jordanian citizen who has lived here as a refugee since 1993.
Since coming here he has been convicted in his absence, in Jordan, of terrorist offences which he has always denied.
Since 2005 successive governments have been trying to deport him in the interests of national security, which is, of course, entirely legitimate if justified.
But the litigation in his case does not turn on whether the deportation is justified, whether Abu Qatada is the threat the government says he is.
So media and political comment about the European Court stupidly not realising what a bad hat he is, is completely misconceived.
The legal issues in the case are all about the security and justice systems of Jordan; if Abu Qatada is deported, he will be re-tried for the offences of which he had previously been convicted, using the evidence previously used, much of which had, it is generally accepted, probably been obtained through torture.
It is a well established principle of our law that evidence obtained through torture cannot be used in a fair trial.
And it is another principle that everyone in the jurisdiction is entitled to a fair trial, and that this principle cannot be evaded by exporting (through deportation, extradition or rendition) unwanted individuals to less squeamish jurisdictions (at least, not when anyone is watching).
So the government's case is that the evidence may not have been obtained through torture, and that Abu Qatada would get a fair trial in Jordan.
What it does not argue is that he is not entitled to a fair trial, because to do so would be to undermine the commitment to the rule of law that has existed here, however falteringly, for so many centuries.
Students of Magna Carta will recognise ... 'To no one will we sell, to no one deny or delay right or justice.'3
But I wonder if the problem goes deeper than simply a misunderstanding of what individual cases are about and I wonder if the words we use in talking about human rights law may add to the confusion.
Let's start with the word 'rights'.
Rights sounds like entitlement, sounds like a sense of entitlement, sounds like self-righteousness.
These are not attractive traits in themselves (well, not to the English, and these misperceptions seem to be a particularly English problem), and are even less so when it is perceived that those claiming the rights have little to justify any sense of entitlement....alleged criminals (no smoke without fire), convicted criminals, foreigners who have no connection to our country except that they are here, famous people trying to hide their bad behaviour, and so on.
And claiming rights also carries with it a sense that the person doing the claiming thinks that their rights are more important than the rights of the law abiding, ordinary, well-behaved, majority of the population.
'I know my rights' is not how properly behaved people are meant to deal with situations requiring compromise, as so many situations do.
But of course human rights law is alive to the need to balance conflicting rights, and makes explicit provision for the circumstances in which an individual's inalienable and indivisible (and I'll come back to that phrase) human rights are not enforcable.
In 'human rights speak' we talk about 'qualified rights' and 'proportionality' to explain how this balancing act is done.
'Qualified rights' sounds like you have to qualify to get these rights, and it seems like its always the bad guys who have the qualities that do qualify them.
And I doubt 'proportionality', is a frequent topic of conversation on the Clapham Omnibus.
Why not use the much more familiar, and sufficiently similar, concept of fairness?
So, for example, when we talk about the right to liberty we can show that when it is fair to do so, the law prevents some people from enforcing this right in certain circumstances which we would probably all see as fair.
Even the right to life is legally unenforcable when death occurs as a result of, for example:
'the use of force which is no more than absolutely necessary: in defence of any person from unlawful violence;
or
in action lawfully taken for the purpose of quelling a riot or insurrection.'4
One of the advantages about using fairness as a description is that we all know that the line between fairness and unfairness is a fuzzy one, placed differently by different people, but that this fuzziness does not delegitimise the concept, nor the duty of, for instance, judges to make a decision on where the line should be in any given case.
Coming back to human rights being 'inalienable and indivisible', I think we have to agree is a perversely alienating and arithmetical expression of a profoundly important concept.
And that concept is that our rights belong to us as of right...they are not given, they are not a reward, they are not within the gift of government. And they belong to all of us, because we are all human.
Yes, they can be unenforcable, even to the point of death, but the right comes first and the grounds for unenforcability come after.
So how about 'our fundamental rights and freedoms are ours because we are human beings' as an alternative to 'human rights are inalienable and indivisible'? To which we can add 'No-one, including the government, can unfairly ignore them', which covers qualified rights and proportionality.
Third myth: Human rights law doesn't reflect our traditions and culture.
I have had difficulty understanding this, particularly as in his lovely book on the rule of law Lord Bingham said that 'the rights and freedoms embodied in the ECHR are in truth 'fundamental', in the sense that they are guarantees which no-one living in a free democratic society such as the UK should be required to forgo'5 which seems to deal with 'our culture' fairly comprehensively, and he also said 'the common law and statute have for many years given a measure of protection to such rights'6 which goes a considerable way to dealing with our traditions.
However, some people don't agree with Lord Bingham and the Commission on a Bill of Rights has identified some of their concerns.
I think it is fair to summarise these as being that the ECHR has brought about changes alien to our culture and traditions, in particular our Judeo-Christian heritage, and in particular our tradition that rights carry responsibilities.
Well, yes and no.
Most of the ECHR rights were articulated in England and the UK long before they were in any other European country; such as the right to life, the right to trial before being punished, the right to fair punishment, the prohibition of arbitrary arrest and detention, (Magna Carta) and the prohibition on torture (Bill of Rights 1689).
Many others were recognised over here well before the ECHR was drafted, such as the right to free speech, freedom of assembly, religion, thought and conscience and the right of respect for private and family life.
An Englishman's home is his castle. (or, for reasons that will become apparent later ' An Englishperson's home is his or her castle).
This link between our traditions and the ECHR is not surprising, as the European Convention derives from the UN Universal Declaration of Human Rights, both of which the UK played a major role in drafting.
On the other hand, we do not have an illustrious history in relation to equality and minority rights and at least some of this does seem to derive from our Judeo-Christian heritage...
For instance Article 1 of the Universal Declaration of Human Rights: 'All human beings are born free and equal in dignity and rights.'7
Is hard to reconcile with the Christian doctrine of original sin.
And when Mrs Alexander, who wrote 'All things bright and beautiful' included a verse
'The rich man in his castle,
The poor man at his gate,
God made them high and lowly,
And ordered their estate.'
she was undoubtedly writing in the Christian tradition but not in compliance with Article 14.
Of course some improvements in equality long precede international human rights law...
I was talking to a retired judge last week who mentioned that his mother was a suffragette, which brought home to me the fact that there must be a fair few people alive today who can remember the days before women got the vote in this country - and lots of us here will have clear memories of the casual discrimination dished out to people, quite lawfully, on the basis of the race, gender, sexual orientation, age and disability...
We can't say that it doesn't still go on.
But at least we have laws against it now, and for that we can thank the ECHR, to a significant extent.
So for those who consider ECHR rights as alien, we can say that mainly they are not - and where they are - all of us who are not fit, healthy, Christian, prosperous, white men with no female, old, ill, disabled, non-Christian, Black, Asian or Minority Ethnic, or LGBT, cherished relatives or friends should be very grateful.
As for linking rights and responsibilities, our human rights law does this. For reasons already explained, it doesn't suggest that rights have to be earned by responsible behaviour, But article 1 of the Universal Declaration not only says that:
'All human beings are born free and equal in dignity and rights.'
but also that
'They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.'
And the provisions of the ECHR put responsibility at the heart of people's entitlement to enforce their rights. The workings of the Convention is saturated with concepts of responsibility.
Criminal (ie socially irresponsible) behaviour can lose someone the right to enforce their right to life, liberty, privacy, family life, marriage, children, voting, and free speech.
Furthermore, people who are thought irresponsible through no fault of their own can't enforce certain rights: children can't vote, people without the necessary mental capacity can't marry, or stand trial, and so on.
And, finally, enforcement of rights can be curtailed if to do otherwise would be to allow someone to act irresponsibly towards the rights of others, individually or collectively, and the recent decisions on freedom of religion are a good example of this.
So let's speak about how our traditions, and heritage, and linking of rights and responsibilities underpin human rights law, rather than being at odds with it.
Myth number four: The European Court goes beyond its remit
I shall be brief here, as I do not want to suggest any replacement for the beautiful phrase 'living instrument'.
I would simply suggest that we explain that the Convention was designed to grow with the societies in which the people it is designed to protect live, adapting to changing circumstances and cultures so that it can still be effective in protecting our fundamental freedoms.
Finally, the claim is made that the Court unacceptably challenges the supremacy of parliament
Yes, it does challenge, which is why some politicians get so shirty about it, but not unacceptably, because that was always the intention.
David Maxwell-Fyfe, Conservative Home Secretary in Churchill's 1951 Government, and a member of the British team involved in drafting the European Convention, confirmed 'the Convention superimposes an international code on our unwritten constitution'. and when the government in 1966 allowed individual petition to the court it did so in the knowledge that Parliamentary decisions would be open to challenge. But this is nothing new.
For 800 years we have recognised the need to keep the power of government in check.
In the thirteenth century the king was absolute ruler, and Magna Carta, famous for articulating the rights and freedoms of some of the population, also gave the Barons authority to challenge bad King John if he went too far.
In the seventeenth century parliament was stronger, but the Monarch still had huge power.
The Bill of Rights 1689 both set out the fundamental rights and freedoms of the people, and asserted the right of Parliament to constrain the use by William and Mary of the Royal Prerogatives.
This shows that the constraints on parliament provided by the ECHR follow a long and glorious tradition.
In a country like ours, with no entrenched laws to protect the rights of the people against the power of the state, we have a particular need for protections that cannot be overturned through the ordinary parliamentary process.
International treaties, ratified because they reflect our values and priorities as a nation, serve this purpose, and we should be proud that they do so and that we have governments that recognise the value of limiting their own power, however irksome they find it.
The long running saga of prisoners' voting rights is a good illustration of why we should be grateful to the European Court.
Prisoners are, obviously, much more vulnerable to the power of the state than most of us, and also fall into the category of scoundrels.
They are exactly the sort of people who need the protection of a court of last resort, beyond the reach of parliament, which always has an eye on re-election and therefore popularity.
Here the issue is not what makes the Prime Minister feel sick, or whether the Court is going too far, but whether a blanket ban is fair, proportionate. And if the government doesn't comply, where will we be?
Many people seem to feel very strongly that the European court should butt out of this one, but will they feel the same if a future government decides to impose lifetime voting bans on people convicted of certain offences, regardless of whether they are still in prison?
Or legislates to remove voting rights from the unemployed?
These are not such far-fetched suggestions as they may seem.
In America, nine states impose a lifetime voting ban on convicted 'felons': and it doesn't take much to commit a felony.
I don't know if anyone here is a regular reader of The Sun, but last Wednesday it contained an outraged article by their political editor complaining that some Labour MPs relied on the votes of those on benefits to get elected.
Who would have thought! People claiming benefits being allowed to vote!
When one considers the challenges to the will of parliament;
Like the Royal Veto.
Like the gigantic raspberry blown to our tax system by global corporates who choose whether to pay tax here tax.
Like civil servants changing the text and meaning of secondary legislation...
I like to think that I will not be alone in preferring the transparency, due process, and focus on the interests of people without power or influence, of the European Court.
So, what nudge statements do we end up with?
1. The European Convention and Court of Human Rights are no more connected to the European Union than the monarch is to Messrs Mercury and May.
2. Our fundamental freedoms are ours as of right and no-one, including the government, can unfairly ignore them.
3. Our traditions, and heritage, and linking of rights and responsibilities, underpin human rights law, rather than being at odds with it.
4. Our human rights law grows with us and our society, to continue protecting us.
5.Our human rights law protects us from an over mighty-state.
6. Our human rights law is not about foreigners, or prisoners, or asylum seekers; it is about us, and how we think of ourselves, and what sort of a country we want to live in.
I'm sure there are better ways of saying these things, but this is my contribution to this particular debate.
Very briefly, I want to touch on one other point, and that is the language of our domestic legislation.
Traditionally, this has been couched in the language of men, not only in times when men were pretty much the only people who counted (the only references to women in Magna Carta are to wives, widows sisters and daughters) but also much more recently.
For instance, in the Education Act 2002, the minister of state, teachers, head teachers and pupils are all referred to as he, even though the Minister at the time was a woman, most teachers are women and at least half the children are girls and young women.
The only uses of the word 'her' that I could find were references to Her Majesty's Inspector of Schools, although even then the Inspector was also presumed to be a man.
I always assumed that this male dominated language was a function of the well known provision in the Interpretation Act 1978 that 'unless the contrary intention appears,— words importing the masculine gender include the feminine'.8
But it turns out that that can't be the case, because the same section also provides that 'In any Act, unless the contrary intention appears words importing the feminine gender include the masculine;'
Well, what was going on there then?
What was going on I suggest was nearly 30 years of - let us hope - unconscious resistance to change.
I say 'was', because things have changed.
In March 2007 Jack Straw announced in parliament 'For many years the drafting of primary legislation has relied on section 6 of the Interpretation Act 1978, under which words referring to the masculine gender include the feminine. In practice this means that male pronouns are used on their own in contexts where a reference to women and men is intended, and also that words such as chairman are used for offices capable of being held by either gender.' (Did he know about S6(b) or was he just gliding over it?)
He goes on to say:
Many believe that this practice tends to reinforce historic gender stereotypes and presents an obstacle to clearer understanding for those unfamiliar with the convention'.
(That is to say Parliamentary convention not European Convention)
Since then, legislation has been drafted, as far as possible, in a gender neutral way, so that, for instance, in the Equalities Act 2010 there are hardly any gender-specific nouns or pronouns at all, except for the Queen of course.
Well, this is good, but could it be better?
The trouble with gender neutral language is that although it doesn't reinforce stereotypes, nor does it challenge them. It simply ignores them. And if we want to use nudge theory, here is another opportunity to do so.
Much as I would like to see the introduction of Acts of Parliament where different roles are shared out between men and women in a way that challenges stereotypes, so that Board Chairs, head teachers, union representatives, doctors, maybe even judges are all called 'her', I realise that this is unlikely to happen in the foreseeable future.
But there is another option, nearly as good, which has already been tried.
In my browsing on the legislation.gov website I came across a charming surprise...
In the Civil Partnership Act 2004, there had been a little tiny experiment in referring to civil partners as 'he or she'.
I say only a little experiment, as mainly they are referred to as 'he', but there are four or five uses of 'he or she', and they are very effective in giving a little anti-stereotyping nudge, or even jolt.
How about rethinking the gender neutral language used in legislation and experimenting with gender inclusive language instead?
So, please, nudge unit, have a look at both these ideas,...using the power of words, and what could be cheaper, to get people thinking differently about who does what...and to bring the reputation of human rights law back to where it belongs, at the heart of our society.
Thank you
1A UK Bill of Rights? The Choice Before Us, Volume 1 p 176
2H. L. Mencken, Baltimore Sun, July 26, 1920
3Article 29 Magna Carta 1215
4Article 2 ECHR
5The Rule of Law Tom Bingham p 68
6ibid
7 Article 1 UDHR
8S 6(a) Interpretation Act 1978