Friday, 13 July 2012

The British Bill of Rights ~ Second Consultation

Update 17th July

In March 2011, a Commission was set up to consider the possibility of the United Kingdom having its own modern Bill of Rights - see Ministry of Justice .  The Commission was mandated to investigate the creation of a UK Bill of Rights "that incorporates and builds on all our obligations under the European Convention on Human Rights."  Thus, any idea of withdrawal from the European Convention on Human Rights is not within the remit of the Commission.  The Commission was required to report by the end of 2012.

One of the original Commissioners (Dr Michael Pinto-Duschinsky) resigned - here.  He was the only non-lawyer Commissioner and was replaced by Lord Faulks QC.  The composition of the Commission looks like a "QC's Club" and is certainly open to criticism but I do not propose to engage further in that here.

At present, the UK is a signatory to the European Convention on Human Rights.  Until the Human Rights Act 1998 came into force on 1st October 2000, the European Convention was only occasionally raised in argument before courts in the UK.  The Act made major changes.  For instance, "So far as it is possible to do so, primary legislation
and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." The words "so far as possible" are important.  If the court is unable to interpret the legislation in a way which is compatible with convention rights then the court must apply the UK legislation BUT the higher courts may make a declaration of incompatibility.  A  declaration does not in any way overturn the legislation but it enables Parliament (if it so chooses) to apply a fast-track method of amending the legislation so as to make it compatible.

There is no doubt that the Act handed to the judges a powerful tool for the protection of convention rights but, at the same time, the Act retained Parliament's supreme law-making position.  The Act does not prevent an individual from "petitioning" the European Court of Human Rights but, before this can be done, all domestic remedies must have been exhausted and petitions must be brought within a 6 month time limit.  The UK is bound, in international law, to apply decisions of the European Court of Human Rights.  For a fuller discussion - see Lawobserver.

The Commission conducted a first consultation which received some 900 responses.  A second consultation has now been launched - Ministry of Justice.  This appears rather late in the day if the Commission is to report by the end of 2012.  Further views are sought from the public.  The second consultation asks questions arising from the 2011 Discussion Paper and on the views have heard so far, about whether or not we need a UK Bill of Rights, and if so, what the form and content of any such Bill might be.

The foreword to the second consultation paper (pdf - 30 pages) states that no decisions have yet been reached by the Commission on the key question of whether to recommend a UK Bill of Rights.  The paper also asks whether additional rights should be introduced such as rights to equality, trial by jury, rights for victims etc.  The paper concludes by setting out a set of 15 questions upon which views are sought.

The deadline for responses is 30th September 2012.  They may be sent to the Commission by email or by post at the address here

Further reading:  UK Human Rights Blog - "Second Time Lucky ..."

Update 17th July:  See the interesting post on UK Human Rights blog by Professor Aoife Nolan of Nottingham University - "Don't believe everything you have read: there is a case for socio-economic rights."   This post recognises the fact that the UK is already bound by a number of international conventions such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child.

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