The Commission was appointed by the government on 18th March 2011 and, at the time, comprised
- Martin Howe QC
- Anthony Lester QC
- Jonathan Fisher QC
- Helena Kennedy QC
- Anthony Speaight QC
- Philippe Sands QC
- Michael Pinto-Duschinsky
- Sir David Edward
Law and Lawyers blog - Commission on a Bill of Rights -18th March 2011
Dr Pinto-Duschinsky - (a non-lawyer) - later resigned from the Commission and was replaced by Lord Faulks QC. The make up of the Commission was considered by Liora Lazarus - "The composition of the UK Bill of Rights Commission" - 24th April 2011.
The Commission has held two consultations in which it was open to anyone to respond. (Whether these consultations were adequately advertised is another matter).
The terms of reference:
As with all bodies set up to consider any matter, the terms of reference are important.
"The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.
It will examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.
It should provide interim advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of and following the UK’s Chairmanship of the Council of Europe.
It should consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012."
The terms of reference did not envisage the UK withdrawing from the Council of Europe or the European Convention on Human Rights - (assuming that the latter is possible without the former). Much of what is in the terms of reference is laudable. Any UK Bill of Rights is to incorporate and build on the UK's obligations under the convention. Also, there is certainly a crying need for better understanding of the true scope of the obligations and liberties.
The Terms of Reference of the Commission and the options open to it were considered by Mark Elliott in The UK Bill of Rights Commission - The UK Constitutional Law Group 18th April.
Criticisms of the Commission have been directed at its make up since it has looked rather like a club for Queen's Counsel and at the rather limited involvement with the general public on this vitally important subject. A further criticism has concerned lack of diversity among the Commission members - see Law Society Gazette 24th March - "Human Rights Commission prompts diversity concerns.".
The Commission issued interim advice to Government on reform of the European Court of Human Right and the Chair of the Commission published a letter to ministers on reform of the Court . These actions might be criticised as the Commission forming a very early view on any reforms perceived to be necessary to the court. However that may be, the interim advice was required by the terms of reference and the advice and letter preceded the Brighton Conference (18-20 April 2012) and Declaration by which the governments of the Council of Europe member states agreed on a number of reforms including reduction of the large backlog of cases at Strasbourg.
Report by the Commission:
The report is expected imminently. The Human Rights Act 1998 may be seen as a form of Bill of Rights for the UK in that it weaves convention rights into the law. On this, the article in The Guardian 13th December by Francesca Klug is particularly interesting - The Human Rights Act is a British Bill of Rights.
I would not expect the Commission to recommend any reduction in the core human rights given to people by the European Convention. After all, as the late Lord Bingham asked, which of the rights in the convention would people wish to give up - the right to life, perhaps, or the prohibition on torture, or the freedoms of speech or association? Please read the eloquent tribute to Lord Bingham by Jesse Norman.
There may be some scope for review of some aspects of the later Protocols to the Convention such as Protocol 1 Article 3 which has been interpreted by the European Court of Human Rights in a way which condemns the UK's blanket ban on prisoners voting. Of course, whatever the Commission recommends (if anything) in this area will not alter the fact that the UK is bound already by the European Court's decision.
Will the Commission propose additional rights - such as a right to trial by jury (a very British right which has been under attack from time-to-time) or perhaps social or economic rights such as "equality" rights or a right to good care at reasonable cost in old age? The Commission's consultation included questions about such additional rights. To move into those areas would be controversial territory for the Commission which will be all too aware of the "opt out" to the Lisbon Treaty in relation to the European Union's Charter on the Fundamental Rights.
A correlative of rights is a responsibility to respect the rights of others. It will therefore be interesting to see whether the Commission has anything to say about responsibilities. This would be a significant step away from the idea that human rights are solely about how the State treats individuals within the State.
The second element in the terms of reference refers to promoting a better understanding of the true scope of these obligations and liberties. This is a process by which information needs to be made available and then there is the important question of education of the young as well as the population in general. A tremendous amount of work is required in those areas.
The report is awaited with considerable interest. There will be much comment about it and the government's response to it will be crucial for the future of human rights protection in the UK - a nation in which access to justice is certainly under threat with huge reductions to the scope of legal aid, tighter rules being proposed for judicial review, the controversial Justice and Security Bill with its extension of closed material procedures, the Communications Bill with its "snooper's charter" provision and so on. The enormous benefit of the Human Rights Act 1998 is that it enables the courts in the UK to examine the compatibility of the government's legislation with convention rights. It would be a sad day if that is lost.
I particularly recommend the reader to listen to the podcast on CharonQC's Tour blog - #Report 16: On Human Rights law with Kirsty Brimelow QC and Francis FitzGibbon QC. This contains a most interesting discussion about the impact internationally of the stance taken by the UK in relation to human rights protection.