Parliamentary Standards Bill: crying wolf about human rights

I’m always amused when anyone – often it’s some kind of campaign group – claims that this or that Parliamentary bill “could” breach human rights. As often as not, it’s simply a tactical claim: whoever it is opposes the measure on political grounds (which is entirely fair enough) and tries to use a legal objection to back their opposition. The worst recent example of this was the CEHR’s threats about the Counter-Terrorism Bill.

And now, Parliament’s Joint Committee on Human Rights has said that the Parliamentary Standards Bill – the one that aims at bringing in independent scrutiny of MPs expenses – would breach human rights in that it would deny MPs a fair hearing. Here’s the JCHR report. Note that the JCHR goes further than the usual “could breach human rights!” scare tactics. The Committee says the Bill would breach the article 6 Convention right to a fair hearing and that it would only be a question of time before the European Court made such a finding.

This seems to me a crazy stance to take politically: nothing could be less attractive than MPs trying to use human rights law to cause trouble for the government’s plans to bring in independent scrutiny.

But I’m more interested in the legal merits. So would the Bill breach article 6? I think not. The JCHR has form for crying wolf on human rights. It thought the smoking ban could breach human rights – a very silly view to take indeed, in my view, and one shown to be silly since the ban was brought in. I think this latest view is on much the same level, to be honest.

To raise some questions about the procedures, to argue for stronger safeguards and to recommend changes would have been one thing. But the JCHR’s conclusions are extreme, and in my view untenable. The committee concludes far too readily that article 6 applies at all: I think the government is probably right that, based on cases such as Pierre-Bloch v France, it doesn’t apply to Parliamentary discipline.

And the JCHR says an MP who is investigated must have the benefit of a high standard of proof – beyond reasonable doubt – if the disciplinary charge against him or her amounts to a criminal charge. Well, first, it seems to me quite a jump to assume that, even if an MPs’ behaviour may amount to a fraud, it follows that disciplinary procedures based on that same conduct constitute criminal charges for article 6 purposes. It ain’t necessarily so. But anyway, article 6 does not require our domestic criminal reasonable doubt standard of proof at all. That cannot be necessary for human rights compliance.

The JCHR compounds that by going even further over the top, with the claim that article 6 requires an appeal, which they think should be to the Privy Council. But article 6 does not require a right of appeal. It requires a fair hearing. If the independent regulator’s procedures are fair, article 6 is satisfied – no appeal is necessary. The JCHR’s demand for an appeal is a red herring. By the way, they do not say the appeal should be on a point of law: it seems they think the Privy Council should rehear the case on its merits – so that MPs would have two fair hearings, not just one. But in any event I think MPs may well have a right to challenge decisions of the independent authority in court: I see nothing in the Bill that excludes judicial review. Again, therefore, the JHCR’s recommendations are extreme, and unwarranted.

So how could the JCHR have come to such an extreme view? It has three legal advisers, for heaven’s sake! Well, one reason is just that the JCHR can get things badly wrong, as with smoking.

It might also be worth mentioning, though, that the majority of the members who agreed the report – the chair Andrew Dismore, John Austin, Evan Harris, Virendra Sharma and Richard Shepherd – were all named in the Telegraph recently in connection with their expenses. That may, of course, simply be coincidence.