Tuesday, 18 December 2012

Commission on a Bill of Rights ~ A UK Bill of Rights? Perhaps, but not yet !

Long grass
19th December ~ Updated with some additional links

On Tuesday 18th December, the Commission on a Bill of Rights produced its report - A UK Bill of Rights? - The Choice Before Us

Ministry of Justice -  Press release and Commission on a Bill of Rights web page

There are two volumes to the report though it is Volume 1 which contains the substantive material: Volume 1 and Volume 2

Volume 1 contains a brief Letter to Ministers, the Commission's Terms of Reference, an outline of the Commission's approach to their work and an Overview.  12 chapters then follow and a further 8 individual papers.

According to the section headed "Our approach to our work", we are informed that the Commission members were nominated by the two coalition parties.  The Commission described itself as "politically disparate" but also claimed to have "surprisingly wide areas of agreement." 

: The report draws the conclusions together in Volume 1 Chapter 12 :

The Commission did not wish
to reject the idea of a British Bill of Rights describing it as an "idea of potential value which deserves further exploration at an appropriate time and in an appropriate way."  Any future debate had to be "acutely sensitive to issues of devolution and, in the case of Scotland, to possible independence."  Furthermore, the Commission neatly side-stepped the fact that, in Northern Ireland, there is a separate Northern Ireland Bill of Rights process and the Commission did not wish to interfere with that in any way.  The creation of a UK Bill of Rights would have to be undertaken gradually, with full consultation and the process would have to reconsider "the scheme of the devolution Acts, which limit the powers of the devolved legislatures and governments by reference to respect for 'Convention rights.' Whatever the outcome of the independence referendum in Scotland (in 2014), it seems likely that there will subsequently be proposals for changes in the relationship of the nations that will then comprise the UK be that within a Constitutional Convention, as the Prime Minister has suggested, or in some other forum.  Such a forum would be the most desirable place to consider the promotion of a UK Bill of Rights within the context of a wider constitutional review.

Essentially then, the Commission has offered the government an option of the long grass into which to kick their own report.  It can all be deferred until we see what is to happen in Scotland, Northern Ireland and so on and maybe some other forum will return to the subject.

A majority view:

Chapter 12 continues.  "A majority of the members of the Commission, including the Chair, believe that, on balance, there is a strong argument for a UK Bill of Rights" and they note that many other Council of Europe States already have their own "written constitution, their own national bill of rights written in their own words or both."

The majority sees a lack of 'ownership' on the part of the general public in relation to human rights issues and it is this which is a powerful argument for a new constitutional instrument.

The argument about 'ownership' is not particularly convincing.  The majority of the public have minimal knowledge of anything to do with law but, when the issues are explained, people appear to be happy with the existing arrangements for protection of their rights even if some concerns are expressed.  The public is, regrettably, fed a diet of strident anti-human rights rhetoric by a number of daily newspapers and by certain politicians.  Much of this reporting relates to certain high profile cases at Strasbourg - e.g. prisoner voting or the Abu Hamza extradition case etc.  Sadly, members of the public rarely make the real effort needed to find out the true position and, even more lamentably, the subject is hardly taught in many schools (a point which the Commission makes).  Interestingly, the majority of the Commission see the strident voices as requiring the fresh beginning which a Bill of Rights might bring.  (Helena Kennedy QC and Phillipe Sands QC did not agree with the majority).

The majority further argues that a Bill would offer the opportunity to provide greater protection against the possible abuse of power by the state and its agents.  They nevertheless acknowledge that the Human Rights Act has provided a valuable safeguard against any such abuse of power.  It is not entirely easy to see how a UK Bill of Rights - (which would have to be enacted by Parliament) - would actually offer greater protection than existing arrangements and it may offer less if coupled with withdrawal from the European Convention.

For the majority, the Bill would have at is core the rights already in the European Convention on Human Rights including those protocols which the UK has accepted.  However, the Bill might be written in different words which the majority see as a means of securing greater public ownership.  Be that as it may, to use different words - (even if some other countries already do so) - seems likely to be a bonanza for some lawyers on points of interpretation and, in any event, the European Convention of Human Rights must be the overriding wording if the UK is to remain bound by it.

A minority view:

For the minority (2 out of 9), the time is not ripe to conclude that the focus should be on a new Bill of Rights.  The majority had failed to identify or declare any shortcomings with the Human Rights Act or its application by our courts.  (It might be noted here that, when interpreting Acts of Parliament, courts in the UK have been exceptionally careful in how they have decided convention points of law.  The traditional deference of the courts to Parliament is far from dead).

The minority would rather leave to a future Constitutional Convention issues such as whether to maintain the status quo, adopt a new and free-standing Bill of Rights or move to new constitutional arrangements which would incorporate and build upon the rights protected by the Human Rights Act.

Long grass
In offering what may be seen as rather more long grass, the minority point to three matters:

1. Devolution - given the uncertainties surrounding devolution (e.g. Scottish independence) a premature move to a UK Bill of Rights would be contentious and possibly even dangerous, with unintended consequences.  The minority refer to the UK moving toward a federal structure - a point made on this blog - e.g. here.

2.  Responses to consultations - a majority of respondents gave overwhelming support to retaining the structure established by the Human Rights Act.  Also, there was no 'ownership' issue in Northern Ireland, Wales and Scotland (or large parts of England) where the present arrangements are not merely tolerated but strongly supported.

3.  Some people support the idea of a UK Bill of Rights as a step toward withdrawal from the European Convention whereas the minority see the UK's future firmly as part of the European Convention.

In the minority view, the case for a UK Bill of Rights has not been made out.  However, the minority remain open to the idea of a UK Bill of Rights were they to be satisfied that it carried no risk of decoupling the UK from the Convention.  Perhaps some edging of bets there? 

Bets edged

Other matters:

Some other points from the report:

1.  Further rights are not opposed in principle and, in particular, an equality right but a majority (does not say which members formed this majority) opposed socio-economic or environmental rights.

2.  The UK Bill of Rights would offer an "irreducible core of rights available to everyone in the UK" but the devolved legislatures could, within their devolved powers, legislate for more.  (? Seems likely to end up offering the English less than elsewhere ?)

3.  Certain rights relating to civil and criminal justice have come under threat from short term political pressures and the Commission wished to see them protected if there were to be a UK Bill of Rights.

4.  The enforcement mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act - e.g. power of higher courts to make a declaration of incompatibility.

5.  The definition of 'public authority' should be looked at again if a UK Bill of Rights were to be taken forward.  (? Probably should be reconsidered irrespective of the Bill of Rights question ?)

6.  A link between rights and responsibilities was rejected since human rights have to apply irrespective of behaviour.  Rights cannot be conditional on exercise of responsibility but they wished to see awards of damages for breach of rights being discretionary and dependent on the applicant's conduct.  They further wished to see a non-justiciable provision to emphasise the mutual ties and obligations on which society depends.  Such a provision might assist with acceptability of a Bill.

7.  Finally, they encourage the government to do everything possible to maintain the momentum of the Brighton Declaration and to continue to press for "fundamental reforms" of the European Court of Human Rights.

Overview:

Overall, an interesting report and necessary reading for an understanding of the issues but a lot of long grass which is hardly surprising as the government presses ahead inexorably with its own constitutional reform agenda - e.g. the independence referendum in Scotland.   Even the majority view in this report, whilst supportive of a Bill of Rights, is saying "NOT YET" though there is little doubt that the majority opinion here may well give some succour to those pursuing a UK Bill of Rights whether it be in or out of the European arrangements.

Would the "Constitutional Convention" ever be set up?  Obviously, it would be unwise to say "never" - (bit of my own bet edging here!) - but recent practice is not particularly encouraging.  Over the years, there has been considerable constitutional reform - including some major reforms - without recourse to any such "Convention."  Devolution itself is an obvious and major example.

Additional Links:

Applying for Law - Dr Mark Elliott (Cambridge University) - Ten things you wanted to know about the Bill of Rights Commission's report but were afraid to ask

The Telegraph 19th December - Mary Riddell -   There is no magic solution to out human rights quandary
- "Chris Grayling bewails the use of the convention as a protection for “people who want to destroy the freedoms of a democratic society”. The truth is that the values that bind our nation will never be wrecked by Abu Qatada and his ilk. Our precious liberties are instead imperilled by law-makers who do not see that human rights must, by definition, extend to the reviled and to the just alike."

UK Human Rights Blog 18th December - The Bill of Rights Commission's report: a modest proposal

Open Democracy - Geoffrey Bindman - British Bill of Rights report shows none is needed

London Review of Books - Phillipe Sands QC and Helena Kennedy QC - In Defence of Rights
"A UK Bill of Rights may seem harmless and even attractive at first sight, but alarm bells should be ringing about motivations. For us, human rights is about working not just within our own country but with other countries to improve the human condition, to engender respect for all individuals, to protect those who are vulnerable, and to create the conditions for the delivery of justice and peace. To remove the glue that holds us together with other nations is dangerous. Our criticisms of the European Court should galvanise us to reform it, not lead to our cutting ourselves off. If there is to be a Bill of Rights, or any change to the Human Rights Act, it should reinforce the European Convention, not undermine it."

UK Constitutional Law Group blog - Colm O’Cinneide: The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?

Joshua Rozenberg - The Guardian 18th December - UK Bill of Rights: Grayling wrote off the report months ago

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