- Human rights on paper are meaningless if they cannot be enforced, Harriet Harman, when she was the Chair of the Joint Committee on Human Rights. Today, we're going to be examining, comparing and contrasting the judicial protections of human rights in the UK and in the Commonwealth Caribbean or Caribbean. Many countries around the world have a bill of rights as part of their national constitutions, protecting a large list of fundamental rights and freedoms. And in some countries, the courts have had the power to strike down or disapply legislation that they find to be in breach of their bill of rights. As we see, countries of the Commonwealth Caribbean each have this constitutionally entrenched bill of rights but the UK does not. The UK does not have a codified constitution as such and the UK political system is traditionally based on the sovereignty of Parliament. In this lecture we're first going to look at the judicial protection of human rights in the UK and under the European Convention of Human Rights and under the Human Rights Act 1998, then we're going to compare and contrast this model to that instituted in the former British colonies of the Commonwealth Caribbean. And we're going to ask this question, whether either model effectively protects human rights and how they could be improved. So let's look at the UK's human rights framework. The story of the judicial protection on human rights in the UK is bound up with the European Conventional on Human Rights. No, this is not the only international human rights treaty to which the UK is a party, but it is the far most important one in practice. Now you see the UK has been a party to the European Convention on Human Rights since 1951. In fact, it was the very first nation to ratify the Convention. However, for the next 50 years or so until the Human Rights Act, 1998 came into force in 2000, the Convention was not incorporated into UK domestic law. And I'm going to explain what this means. You see, the UK had what is known as a dualist legal system, contrast with the monist legal systems of some other countries. When the UK becomes a party to an international treaty, the international treaty does not automatically become part of our domestic law unless Parliament chooses to incorporate all or part of the treaty into our law. A treaty that has not been incorporated into domestic law is called an unincorporated to treaty. Before a domestic court you cannot rely on unincorporated treaty as a source of rights or obligations. Sometimes part but not all of the treaty is incorporated into our domestic law. Now you seem many important human rights treaties are still largely unincorporated today. Let me give you some examples. This includes the United Nation's Convention on the Rights of the Child and the United Nation Convention on the Rights of Persons with Disabilities. This does not mean that unincorporated treaties are irrelevant in domestic law. It is a long established principle that there is a presumption that Parliament intends to legislate in conformity with its international obligations. So when the courts are construing a particular provision of domestic law and the domestic law is ambiguous, they can use the international treaty to help them decide what the domestic law should be construed to mean. This is what we lawyers call an aid to construction. Therefore, before the incorporation of the European Convention, it was possible to rely on the Convention as an aid to construction. But the limits of this doctrine are underlined by the House of Lord's case in 1991, a case called Brind. That case drew a careful distinction. It reaffirmed the traditional doctrine that an international treaty could be used to resolve an ambiguity and uncertainty in statutory provision. However, where the statutory provision was not ambiguous or uncertain, there was no rule that a public authority had to exercise its discretionary powers consistently with the international treaty. So for example, when it's unclear whether a statutory provision means that a minister must do X or do Y, an international treaty can be relied on to help the court decide what the provision means. But if that statutory provision is perfectly clear but gives the minister a discretion to decide whether to do X or not, there is no obligation on the minister to exercise that discretion in accordance with the international treaty. So what that means is this, before the year 2000, if the UK breached your rights under the European Convention, you might, depending on the circumstances, have found yourself without any remedy before a domestic court. If that was the case, you could of course take your case to the European Convention on Human Rights, which could find the UK in breach of its obligations and might award you monetary damages. But depending on the breach you are complaining about, that remedy might not be of much use to you. If the UK refused to change the law or practice that had been found to have been in breach of the Convention, there might not be much you could do about it. This changed to a significant extent when the Human Rights Act 1998 came into force in October, 2000. The 1998 act incorporated some, but not all the provisions of the European Convention on Human Rights directly into UK law. It created a complex and multi-layered mechanism for enforcing those rights before UK courts. So let's take a look at how the Human Rights Act works. First of all, the Human Rights Act makes it unlawful for public to act in a way which is incompatible with a Convention right. This is the central guiding principle of the act. It means that in general, if a public authority breaches your Convention rights, you have judicial remedies before UK courts under the Human Rights Act. For example, you can challenge the public authorities decision by whatever judicial review and you can try to have that decision quashed or you can bring a civil claim against a public authority and in some cases be awarded damages for the breach. And you can also rely on the human rights as a defense in both civil and or criminal proceedings brought against you by public authority. However, the Human Rights Acts stop short of being a constitutionally entrenched bill of rights because it affirms the traditional principle of Parliamentary sovereignty. The act does not allow the courts to strike down primary legislation, which conflicts with the European Convention. The courts are required to interpret the legislation as far as possible as being in conformity with the Convention, they can read down the legislation so as to bring it in conformity with the Convention and if they can do so without going against the grain of the legislation, they will do so, but if they cannot read down the legislation to bring it into conformity with the Convention, the only thing they can do is make a declaration of incompatibility. A declaration of incompatibility is a signal to Parliament and the public that the relevant legislative provision is incompatible with Convention rights and needs to be reformed. It doesn't actually disapply the legislation. The courts are still obliged to apply what Parliament has enacted unless and until it has changed. The act provides a mechanism called a remedial order by which a minister can amend the relevant law so to bring it into conformity with the Convention but the decision to do this or not is a political decision and the courts cannot force the minister to do so. In practice, most of the time when the court makes a declaration of incompatibility, the incompatibility is subsequently remedied either by remedial law order made by ministers or by amending an act of Parliament. However, there have been some exceptions to this of which the starkest is the issue of prisoner voting rights. The Strasbourg Court held in the case called Hirst the against the United Kingdom in 2006 that the UK's blanket ban on prisoners voting was incompatible with the Convention. Soon afterwards, the Scottish Registration Appeal Court in a case called Smith against Scott in 2007 made a declaration of incompatibility but the UK government which disagreed with the Hirst decision made a decision not to amend the UK law so as to allow prisoners to vote. And there is nothing the courts have been able to do about this. Years later in the case, Chester against the Secretary of State for Justice in 2013, the Supreme Court declined to make another declaration of incompatibility even though the blanket ban on prison of voting was admittedly incompatible with the Convention. In short, in this case, the government decided just to ignore the Convention because it did not like the result and there's nothing that lawyers or the courts can do about it. Another closely related constraint on the Convention is that, whereas it is ordinarily unlawful for public authority to act incompatibly with a Convention right, this does not apply if the authority could not have acted differently because one or more of the provisions of primary legislation. So if your Convention rights were breached but this happened because it was required by primary legislation, you have no effective remedy before the courts. And if Parliament wanted to rewrite the Human Rights Act or repeat it all together or exempt a whole sphere of government activity from its scope, it could do so. For example, Parliament legislated in 2021 very controversially to impose a new limitation for human rights proceedings against the Ministry of Defense in respect of overseas armed forces operations. And our government is currently carrying out a consultation on wide range in proposed reforms of the Human Rights Act, which may well result in legislation ensured under our system, our human rights are given by Parliament and what Parliament can give, Parliament can take away. So what do you think of the structure of Human Rights Act? Is it a good thing that the courts can't strike down primary legislation and that Parliament can consciously legislate contrary to the Convention rights? Well, I suppose it all depends on your perspective. Some argue it's a good thing. They argue that in a democratic political system, it should be our elected representatives in Parliament, not unelected judges who should make the final decisions about how human rights should be understood and applied. After all they argue, human rights are inherently political. When the European Court or a domestic court decides that a terror suspect can't be detained indefinitely or a migrant can't be deported without procedural safeguards, or that prisoners should be able to vote. They're not just applying the law, they're making value judgment about how individual rights should be weighed against a perspective of the collective good, which is an inherently a political exercise. Some people argue that judges are not democratically elected, they're not represented of the popular will and don't have the institutional competence to make decisions that are fundamentally political in character. The people making this are argument are of course correct that human rights are political and that judges don't merely apply the law but they also make it. They also correct that judges aren't democratically accountable. Indeed throughout this lecture series, I've sought to point out that judges are disproportionately drawn form from privileged groups and are not representative of the people whose lives their decisions affect. On the other hand, a fundamental problem with this argument is that many of the people who need to rely on human rights litigation to defend themselves are the very people who are disenfranchised by our political system. For example, much human rights litigation is brought on behalf of asylum seekers, refugees, irregular migrants who can't vote and have therefore no democratic say in what Parliament decides to do for them. And the litigation in respect of prisoner voting rights was by definition brought by people who could not vote and had no say in the law. As an analogy, imagine a political system in which only men could vote. This isn't far fetched, such political systems have existed in many countries, including the UK until the early 20th century. Lichtenstein did not allow women to vote until the 1980s, having held a series of referenda on the question in which only men could vote. In such a political system do you think legislation imposing restrictions on women would have any democratic legitimacy? Of course not, because the very people affected by the law are systematically disenfranchised. By the same token therefore we might ask whether the vast body of legislation enacted by our Parliament inflicting suffering on asylum seekers, for instance, has any real democratic legitimacy given that asylum seekers cannot vote and have no say in our political system and even where people are not disenfranchised, the course of history gives numerous examples of a majority voting to oppress a poor and powerless minority. In this context, leaving the final say up to Parliament means given a cult blanche to the tyranny of the majority. And when I say the majority in this particular context, I don't even mean the majority of people, but rather the majority of MPs in the House of Commons. And as we know, as we well know in our first past to post electoral system, this does not always produce proportionate results. So that brings me on to my next question. How effective is the European Convention on Human Rights as applied in the UK as protecting the rights of the oppressed? We're going to take a whistle stock tour through some of the most important rights in the Convention, what they do and what they don't do. On the whole the European Convention on Human Rights only protects civil and political rights like the right to life, freedom from torture, the right to liberty, the right to freedom of expression and so on. It doesn't protect social and economic rights. It doesn't give us the right to free healthcare, free education, on adequate standard of living or to decent employment. Social and economic rights are protected in some other human rights treaty, such as the International Covenant of Economic, Social, and Cultural Rights and other national constitutions, such as the constitution of South Africa. They're also protected to an extent by the EU's Charter on Fundamental Rights, but the European Convention does not protect those rights. We will return to the significance of this later on. In terms of how they're drafted, many rights of the rights in the European Convention at first blush are like negative rights rather than positive rights, that is there are about what the state must not do to you rather than what the state must do for you. However, in practice, it's more complicated than that because European Court of Human Rights has construed many of the Convention rights as imposing a range of positive of obligations on the state. Now, due to the constraints of time, we aren't going to look at all the rights under the Convention, but I will pick up a few particularly important ones. One right I've talked about in previous lectures is Article 2, the right to life. As interpreted by the European Court on Human Rights, Article 2 isn't purely about the negative right to restrict the powers of the state from killing you. It also imposes positive obligations on the state. There are three main of obligations. First, the systems' duty to have an adequate legal framework for the protection of life. Second, the operational duty where the state knows or ought to know that there's a real and immediate risk to a person's life. It has a duty to take reasonable steps to protect them. This duty often comes up in the context of people who are institutionalized, such as prisoners, immigration detainees and people detained under the Mental Health Act. And third, the investigative duty, the duty to carry out an adequate investigation into killings in which the state is involved. As I've described in detail in my previous lectures, this jurisprudence has had a huge positive impact across numerous areas of law, especially inquest and public inquiries. The bereaved families of victims of state killings have far stronger rights today than they did a couple of decades ago. Similarly, Article 3, the prohibition of torture in human and degrading treatment or punishment has evolved significantly over the decades. The paradigm case of an Article 3 violation is where the state inflicts the treatment such as by torturing you or imprisoning you in inhumane conditions. But the scope of Article 3 has evolved well beyond that. The monopoly of positive obligations on Article 2, the systems duty, the operational duty and the investigative duty all have their counterparts in respect of Article 3. So the state isn't just obliged to refrain from torturing or ill treating you but also to provide you with the protection against torture and ill treatment and even from private actors. And the landmark cases of sovereign against the United Kingdom and Chahal against the United Kingdom established that a state wasn't just prohibited from torturing or ill treating a person itself, it was also prohibited from forcibly returning a person to a country where they would be tortured or ill treated. Even if that country itself was not a party to the Convention. This is hugely significant protection and which is much wider in scope than the protection available under the Refugee Convention. In particular, it's an absolute right, so it applies even where a person has committed serious crimes or poses a threat to national security, whatever the context a person has an absolute right not to be tortured or subjected to inhuman or degrading treatment. But the real challenge in Article 3 case law has been how far it protects a person from inhuman and degrading treatment that is inflicted on them not by violence but by poverty. After all, the experience of a homeless person who is freezing and starving on the streets could be called inhuman and degrading. So too could dying of a preventable disease due to being able to afford medical care. We can see here that the frontier between civil and political rights on the one hand and social and economic rights on the other. Does Article 3 give people a right to dignified living conditions, food or medical care? The answer as elucidated in the case law could be best described as no, except in certain circumstances. In general, Article 3 doesn't impose an obligation on the state to provide a person with the necessities of life. However, this changes when there is an additional element of state responsibility. The courts have accepted for example, that we're an asylum seeker who the state specifically prevents from working or claiming benefits because of their immigration status is left to become destitute and street homeless by the state. This can breach Article 3. Similarly, in some very narrow circumstances, the courts have accepted that forcibly returning a person to a country where they will face an early and painful death due to lack of medical care and or due to a condition of total destitution may breach Article 3. For a decade this was almost impossible to establish following decisions in our House of Lords and the Strasbourg Court case of N which limited the doctrine so severely that almost no one could meet it, but now it is somewhat easier to meet following the changes made by the Strasbourg case of Paposhvili against Belgium. And ultimately this was accepted by our Supreme Court. And you will remember David Neil and I covered this and these cases in detail on our previous lecture on the history of immigration control. In short, our school three has expanded beyond its literal wording but this expansion has not been unlimited. It is still essentially a civil and political right, and not a social and economic right, it does not confer a right decent and dignified living conditions, food, shelter, or healthcare. And this is a very serious lacuna in the European Convention. Finally Articles 8, 9 and 10 and 11 of the Convention have all had a huge impact on our jurisprudence. These respectively protect the right to private and family life, the right to freedom of thought, conscious and religion, the right to freedom of expression and the right to freedom of assembly and association. Unlike Articles 2 and 3, these rights are not absolute rights but qualified rights. This has led to an adoption of the concept of proportionality in our law where a government or government decision interferes with one or more of the qualified rights. It has to pursue one of the legitimate aims set out in the Convention, such as the prevention of crime and disorder or the economic wellbeing of the country or the protection of rights and freedoms of others. And this has to be proportionate to that goal. Our courts have held that in dealing with an alleged breach of a qualified right by public authority, the role of the court isn't limited to deciding whether the public authority decisions was reasonable. The court has to decide for itself whether the Convention right has been breached, which means that the court itself has to decide whether the decision was proportionate. Article 8 is a particularly wide ranging right. And since the landmark case of Huang against Secretary of State for the Home Department in 2007, Article 8 has had a huge and controversial impact on immigration law, providing many people with a route to come and stay in the UK outside the terms of the immigration rules, which has led to a vicious backlash from the government in the form of the Immigration Act, 2014. Article 8 embraces many other aspects of human life, including the persons name, their gender identity, their ethnic identity, their mental and physical health and their right not to be evicted from their home among other things. Some of the most important and progressive changes in our society in recent decades have been driven by litigation under Article 8, ranging from recognition of transgender people identity, to the protection of children's rights in immigration law. But again, these rights are essentially civil and political, not social and economic. Article 8 may regulate the state's interference of a person's home and their mental and physical health, for example, but it does not confer free standing right to be provided with a home or with adequate healthcare. And this is a real limit on our human rights regimes. So now let me turn to the constitutions of the Commonwealth Caribbean. I want to turn away from the UK and take a broad brush look at the constitutions of the Commonwealth Caribbean. Although I speak from a perspective of an English lawyer, I'm also a citizen of Antigua and Barbuda and of Dominica. I'm called to the bar in several Commonwealth jurisdictions. And I've been involved in litigation in Antigua and Barbuda, Dominica, Grenada, St. Kitts and Nevis. It's interesting to compare the constitutions of the Commonwealth Caribbean to what we have in the UK. The Commonwealth Caribbean is a diverse place. Some jurisdictions, Anguilla, British Virgin Islands, the Cayman Islands and Montserrat are British overseas territories but many are independent countries within the Commonwealth. Most of these constitutions follow broadly similar template, although there are also important differences between them. At the start they contain a bill of rights that protects fundamental rights and freedoms. These rights are usually modeled broadly on the European Convention although there are usually important differences in the wording from the European Convention. There are also important differences in the rights included in different constitutions, some follow the wording of the European Convention, much more closely than others. But again, for the most part the rights tend to be civil and political, not social and economic. Most Commonwealth Caribbean countries constitutions provide for a West Minister Parliamentary system similar to that in the UK. In some independent Commonwealth Caribbean countries, the head of state is the Queen represented by Governor General while others are republics that have an elected president. These roles are for the most part ceremonial. Guyana, which has a more powerful presidency is an exception to this general rule. Those jurisdictions are still British overseas territories and have a governor rather than a governor general. In these territories important powers are reserved to the governor, particularly over foreign affairs and defense. In independent Commonwealth Caribbean countries the actual executive power is vested in a prime minister and a cabinet who are drawn from the majority party in the legislature just as in the UK. Similarly in the Commonwealth Caribbean overseas territories, they have a premier and a cabinet albeit that important powers are reserved to the governor. The constitution also provide for the judiciary. There are variations in what the courts are called and how they are organized, but most Commonwealth jurisdictions follow similar pattern. Each state and territory has a court of unlimited original jurisdiction similar to the High Court in England. This may be called a supreme Court or the high court or in the Cayman Islands, it's called the Grand Court. Appeals from that court are heard by a court of appeal and above the court of appeal at the apex of the judicial system you either have the Judicial Committee of the Privy council in London or the Caribbean Court of Justice. And we're going to be discussing these two courts in more detail in a future lecture. Most jurisdictions have a judicial service commission, which is responsible for advising on the appointment and discipline of judges and judges of the high courts have constitutionally protected tenure of office and can only be removed because of misconduct or an inability to perform the functions of their office. And this normally involves an elaborate process which includes the appointment of an ad hoc tribunal to investigate the allegations. Now, in several of the islands of the Eastern Caribbean, including my own home island of Antigua and Dominica, there is a shared court called the Eastern Caribbean Supreme Court. This court is split into two courts, a high court and a court of appeal. The high court is a court of unlimited original jurisdiction and the court of appeal hears appeals from the high court. Each jurisdiction also has low courts, magistrates courts, which are usually provided for in an act of Parliament rather than the constitution itself. And generally magistrates in the lower judicial officers don't have the same robust security of tenure as higher court judges. Human rights protection in these islands, a few key features of the Commonwealth Caribbean constitution set them apart from the UK system. First of all, the constitution is supreme law. And any other law inconsistent with the constitution is invalid to the extent of the inconsistencies. This means that unlike in the UK, the court can and indeed must disapply an act of Parliament that breaches constitutional rights. Secondly, there is a specific and constitutionally mandated procedure for bringing a claim in the high court in respect of a breach or an alleged breach of the constitution. This is typically dealt with by two separate sections of the constitution, one dealing with breaches of fundamental rights and freedom, and the other dealing with breaches of the constitution. This procedure operates in a similar way to the UK's Judicial Review. And when this procedure can or should be used is a matter of controversy in Caribbean jurisprudence. Thirdly, although the rights are usually modeled broadly on the European Convention, there are a lot of variations in wording, for instance, many constitutions contain a clause at the start of their bill of rights that sets out broad statements of principles, such as wording such as life, liberty, security of the person and the protection of law. Whereas there's a perfunctory clause, which is actually enforceable in the court has been held to vary between different constitutions, according to the exact word in use. Nothing like this is found in European Convention. So with this in mind, let's now turn to how human rights protection in the Caribbean functions in practice. Now, this is a vast subject and we only have time for a few headline points rather than detailed treatment. Most Commonwealth Caribbean constitutions have a provision in similar or identical terms to Article 3 of the European Convention, prohibiting torture, inhuman and degrading treatment and punishment. And this has been extensively litigated. An important issue in these cases however has been the saving clauses. This is a feature of the Commonwealth Caribbean constitution that has no counterpart in the European Convention. Some Commonwealth Caribbean constitutions have a saving clause which protects forms of punishment that were lawful immediately before a specified date even if those forms of punishment would otherwise constitute an unconstitutional inhuman, degrading treatment or punishment. The ambit of the saving clauses has been central in many cases involving criminal justice. Commonwealth, Caribbean countries inherited capital and corporate punishment from the UK. And this is given rise to a great deal of litigation. For instance, in the landmark case of Pratt against the Attorney General for Jamaica in 1994, the Privy Council held at a 14 year delay in carrying out the death penalty, constituted inhuman, and degraded in treatment. It held at the savings clause did not apply because it was confined to authorizing descriptions of punishment. It did not prevent a person from arguing that the circumstances in which a sentence was to be carried out constituted inhuman and degrading treatment. The effect of this decision was that a sentence of death has to be carried out within five years if it is to be carried out at all. And so the death row practices of the US are unconstitutional in the Commonwealth Caribbean. Another important example came in the early 2000s. Many Commonwealth Caribbean jurisdictions inherited from the UK, the mandatory death penalty for murder. If a person was convicted of murder the sentencing judge had no discretion and was obliged to impose death penalty. It was not suggested that death penalty itself was torture or inhuman or degraded treatment or punishment because various constitutions specifically allowed it as an exception to the right to life. But the mandatory death penalty was challenged on constitutional grounds. In 2002 a trove of cases from Belize, St. Lucia and St. Kitts and Nevis, the Privy Council held that the mandatory death penalty constituted inhuman or degrading treatment because it prevented any judicial consideration of the humanity of sentencing a person to death in an individual case, this did not mean that one could not be sentenced to death, but it meant that whether they were sentenced to death had to be considered on the individual facts of the case rather than being automatic on conviction. The saving clauses were an issue in two of these three cases, the Privy Council held that the saving clause prevented the court from holding that the relevant statute was unconstitutional in so far as it authorized the infliction of the death penalty on all murderers but to the extent that the statute went beyond this and required the imposition of the death penalty on all murderers, the saving clauses did not apply. Therefore the saving clause did not prevent the board from protecting people's rights in this instance but this does not mean that the saving clauses are a dead letter. There's a case called Pinder against the Queen in 2003. And the Privy Council held the legality of a statute reintroducing flogging in The Bahamas, even though flogging was inhuman and degrading punishment. It was saved by the saving clauses because it had been lawful immediately before the specified date. So the saving clause is a significant limitation on the constitutional prohibition of inhuman and degrading treatment or punishment. It means that some people can be lawfully subjected to treatment that is admittedly inhuman and degrading. Another important area of constitutional litigation has been about prison conditions. In Europe, the European Court of Human Rights has been quite prescriptive as to what prison conditions are acceptable in Article 3 terms. For example, there is a presumption of an Article 3 breach if a prisoner has less than three square meters of personal space, but in the Caribbean prison conditions are generally appalling by European standards. And for a fair shot of measuring up to the standard set up by the Strasbourg Court. Given the prohibition on inhuman and degrading treatment or punishment is an absolute right both in the ECHR and in the Commonwealth Caribbean constitution, does this mean that Caribbean prison conditions are systematically breaching this? The case of Thomas against Baptiste in 2000 squarely confronted this issue. The case was decided under the Trinidad constitution, which unlike most Caribbean constitutions refers to cruel and unusual rather than inhuman and degrading punishment. But there was no suggestion that this difference in wording was material. In that case, the applicants who were under sentence of death argued that to execute them would be cruel and unusual punishment because amongst other things of the poor conditions in which they were being held, the majority of the court made a stark finding, quote, the applicants were detained in cramped and foul smelling cells and were deprived of exercise or access to the open air for long periods of time. When they were allowed to exercise in fresh air, they were handcuffed. The conditions in which they were kept, were in breach of the prison rules and thus unlawful. It does not follow that this amounted to cruel and unusual treatment, it is rightly accepted that they did not amount to additional punishment. In a careful judgment by Chief Justice Bastide, they found they did not. The expression is compendious one which does not gain by being broken up into its component parts. In their Lordship's view, the question for consideration is whether conditions in which the applicants were being kept involved, sorry, the conditions in which the applicants were being kept, involve so much pain and suffering or such deprivation of the elementary necessities of life that they amounted to treatment which went beyond the harsh and could properly be described as cruel and unusual. Prison conditions in third world countries often fall lamentably short of the minimum which would be acceptable in more affluent countries. It would not serve the cause of human rights to set such demanding standards that breaches were commonplace, whether or not the conditions in which the applicants were kept amounted to cruel and unusual treatment is a value judgment in which it is necessary to take account of the local conditions, both in and outside the prison. Their Lordships do wish to seem to minimize the appalling conditions which the applicants were endured. As the Court of Appeal emphasized they were completely unacceptable in civilized society, but their Lordships would be slow to depart from the careful assessment of the Court of Appeal that they did not amount to cruel unusual treatment. End of quote. The passage appears to suggest that the constitutional standards vary according to the affluence of the country concerned, that stands in stark contrast to the European Court of Human Rights approach, which applies the same standard of Article 3 to every country in Europe, whether rich or poor. Another interesting area of constitutional litigation in the Caribbean is in the area of communal land rights. In a series of progressive judgements, the Belizean courts and the Caribbean Courts of Justice recognize the traditional communal land rights of the Mayan communities as being protected by the constitutional right to property. Unfortunately, the Eastern Caribbean Court of Appeal has recently took a markedly less progressive approach to communal land rights in the rights of the Barbudans, which is currently under appeal to the Privy Council. We will be at the plight of communities fighting for their land rights in more details in a future lecture. Despite the fact that the Commonwealth Caribbean has seen a lot of constitutional litigation, there are some areas of constitutional importance and constitutional jurisprudence that remain underdeveloped compared to the UK and European jurisprudence. For example, I refer to the positive obligations that the Strasbourg Courts have derived from rights guaranteed by Articles 2 and 3 of the Convention, the systems duty, the operational duty and investigative duty. It remains unclear whether similar positive obligations will be held to exist in the Commonwealth Caribbean. The issue was recently brought up in the Jamaican case, the Commissioner for the Independent Commission of Investigations against the Police Federation, but it was not decided. Some jurisdictions have more influenced by the European jurisprudence than others. For example, the Cayman Islands, which is a British overseas territory, the recent case of Day and Bush against the Registrar of the Cayman Islands, which is currently under appeal to the Privy Council drew extensively on the European Convention and jurisprudence in holding that same sex couples while not having the right to marry, had to be given a legal status functionally equivalent to marriage. But that was in the context of a territory which is under UK sovereignty and to which the European Convention has expressly been extended and where the text of the constitution tracks with that of the European Convention more closely than do many of the other Commonwealth Caribbean constitutions. So perhaps it's not surprising that we don't see so much European influence in other Caribbean jurisdictions. So let me come to my conclusion. This lecture could literally have been an entire book. There's a great deal we could have talked about and didn't have time for, for instance, we didn't have time to get onto the impact of Article 14, the prohibition on discrimination or Article 6, the right to a fair trial and the cognitive rights in the Caribbean constitutions, nor have we had a chance to look at the important comparators from elsewhere in the Commonwealth, such as the progressive constitutional jurisprudence in South Africa and India. But now we've taken a whistle stop tour through the strengths and weaknesses of the UK and Commonwealth Caribbean human rights protection systems. Let's stop to think about what an ideal system of human rights protection might look like. First, it would be constitutionally entrenched. This is a strength of the Commonwealth Caribbean systems, its constitutional entrenchment and the concomitant duty of the courts to disapply primary legislation that breaches the constitution. Politicians can't take human rights away on a whim. By contrast in the UK, it's very easy for Parliament to simply refuse to honor declaration of incompatibility or even to amend the Human Rights Act to weaken the protection of human rights. Second, it would go wider than either the European Convention or the Caribbean constitutions do, it would of course need to have at its core civil and political rights by the Convention. But an ideal system would also deal with and include social and economic rights such as the right to free healthcare, the right to free education, the right to adequate standard of living. The South African constitution and the International Covenant of Economic, Social and Cultural Rights could be good templates to use. Third, the judiciary would take an approach that looks well beyond the literal wording of the text and enforces the spirit, not just the letter that the human rights guarantee. In this regard, the judiciary would look at case law from other jurisdictions and international courts when developing the law. For instance, the European Court on Human Rights jurisprudence on Articles 2 and 3, positive duty should be an important influence. We'd also want in our hypothetical system to look at the case law from other international courts, such as the Inter-American Courts of Human Rights, which has often been a progressive and innovative court and whose judgements have had an influence on the Commonwealth Caribbean jurisprudence. A system of human rights protection with these features would have an important role to play in moving society towards achieving social justice. Let me finish with this, where after all do universal human rights begin? In small places, close to home. So close, so small that they cannot be seen on any maps of the world. Unless these rights have mean in here, they have little meaning anywhere. Without concerted citizen action to uphold them close to home we shall look in vain for progress in a larger world, Eleanor Roosevelt. Thank you.(audience applauding)- What do you think about the government's proposals and its consultation on Human Rights Act reform that closed on Tuesday?- As I touched upon in the lecture, I think it's a real shame that the Convention that has given us so much and I've touched upon that during the course of this lecture, can simply be taken away at a whim because a government has a large majority and is therefore doing what is seen to be popular, challenging the rights because of refugees. Interestingly enough, we now have a huge refugee problem in Europe rising out of the Ukraine. The government's tying itself up in knots because of its own policies on refugees. So I'm not happy with the government's proposals. And as I've said in the lecture, it's because populism drives rights and if Parliament has sovereignty whereby it can just chop and check rights at whim, universal rights are the first to be threatened. And that's what we're seeing.- Is there not an additional argument to the point that judges are not elected, the judicial appointment system is itself set up by statute. So in that way, the judges have democratic legitimacy.- Yeah, I can see the argument. The problem is that's not, when judges make laws that the government doesn't like, the first thing the government will do is to attack the judges. And I think that judges and a constitution having judges interpret constitution much better than politicians. But we saw it with the illegal proroguing of Parliament in the UK. You'll remember the line that the government, the conservative government took at that time, judges being the enemies of the people, which was quite frankly quite an outrageous suggestion and you know from my previous lecture, I'm of the view that we do have problems with the judiciary, but I think we've got even bigger problems with a Parliament, a populous government that just makes decisions on what is seen to be the populous view at the time because it keeps them in power and I have a real problem with that.- [Man 1] I just want to point out it was not the government that described the judges as enemies of the people. It was the Daily Mail.- Well, it was the Daily Mail, but when it came back to the government, the government didn't protect and criticize the Mail with the Justice Minister, for example, didn't stand up for the judges when the Daily Mail made those remarks and you would've expected that, particularly the Justice Minister who's meant to be heading up our system to be the very first person to stand up and criticize the Mail when the Mail made that remark and the government was silent. So you're right for correcting me but the point still stands.- [Woman] Pointing to this, the conclusion here about what an ideal system of human rights protection would look like. I'm just thinking, because I'm both a BVI citizen and it turned out to be a international and there's an issue, for example, in the BVI, where is a status you can have called belongingship where it's akin to being a permanent resident. You can live and work there without restriction, but it's defined in the constitution. And so it's enshrined there and there's a lot of debate about who should be eligible for that status. And currently there are people who are not eligible because it's specifically defined in the constitution in a certain way. And hasn't, a lot of these constitutions are not regularly reviewed. So you can have rights that are enshrined and seem workable and relevant at the time that they were enshrined but then later on it causes a problem if there's no review.- Because of the drafting.- Yes, so my comment, I would say, it's not really a question but my comment is, I mean, would you not say that ideally it'd be constitutionally entrenched but subject to regular review so that it keeps with the times. Because otherwise you have a problem where people are disenfranchised and it's hard-- I would agree with that. And in fact, I'd come across that in some of the other jurisdictions similar problems.- [Man 2] Habeas corpus seems to be the basis of law in this country. And two points, one is, are there any detentions without trial in the United Kingdom with the present laws and whether we could ever have a situation like in America, the Guantanamo Bay situation under the law here.- Okay, so the answer is there are instances of where people have been detained without trial and there has been successful habeas corpus applications, but it's rare, I have to say it's rare in the UK. Whether we could have a Guantanamo situation in this country, I doubt it because of the provisions of Article 3. I think it would be very difficult because I think Article 3 does extend to an extent that it would be very difficult to justify just detaining somebody for years and years and years without bringing them to trial. So I would find that very difficult to perceive in this country.- I'm afraid we've got to draw it to a close there as we're at seven o'clock. I wanted to thank you all for coming and thank our online audience. And please join me in thanking Professor Thomas for a great lecture.(audience applauding)