Thursday, 29 September 2011

Protection of Human Rights


The Commission looking at a Bill of Rights (and Responsibilities) for the UK recently published an interim report - Law and Lawyers - "Commission for a British Bill of Rights: interim recommendation and other ideas" - 12th September.  It is interesting to note that there is already a Bill of Rights.

Our older Bill of Rights:

The Bill of Rights 1688 was enacted after the "Glorious Revolution" which culminated in the departure of James II (VII of Scotland).  Much of this Bill of Rights was concerned with (a) the rights of Parliament versus the rights of the Crown and (b) addressing certain problems (e.g. relating to taxation).  Thus, as one example, the Crown could no longer dispense with laws without the consent of Parliament

"That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall."

Lawyers could, no doubt, have a field day on the interpretation of this article alone.  Certainly, whatever the position prior to the Bill of Rights, the King could no longer suspend a law without the consent of Parliament.   For the background to this Article see - Parliament "The Glorious Revolution";  Case of Godden v Hales 1686;  Case of the Seven Bishops 1688

However, some of the provisions gave individuals some vaguely phrased rights - e.g. the statements that "excessive bail" should not be required nor "cruell and unusuall punishments inflicted."  (See here for explanation of "cruel and unusual punishment" in the context of the 8th Amendment to the Constitution of the USA).

However one looks at this document - time-honoured as it is with history - it is not a suitable modern statement defining the rights of either the Crown, Parliament or the individual.  It should be repealed and its essential provisions clarified and built  into a modern formal enactment.   If the work of the Commission on a Bill of Rights comes to fruition, there could be an opportunity to do this.

Rights and their protection in some Commonwealth jurisdictions:
A number of other Commonwealth jurisdictions already have enactments dealing with the rights and responsibilities.  In 1982, the UK Parliament enacted the Canada Act which provided for a Canadian Charter of Rights and Freedoms.  The Charter has become part of the Canadian Constitution.  For breaches of the Charter, the Canadian courts are empowered to give any remedy considered to be appropriate and just in the circumstances.  The Canada Act 1982 also stated:

No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

Students of constitutional law will
find this an interesting example of where the UK Parliament has in practice, if not in legal theory, bound its successors.

New Zealand has the Bill of Rights Act 1990.  This affirms certain rights set out in the Act. Section 6 states:

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

The Attorney-General has a role under section 7:

Where any Bill is introduced into the House of Representatives, the Attorney-General shall - (a) in the case of a Government Bill, on the introduction of that Bill; or (b) in any other case, as soon as practicable after the introduction of the Bill, - bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

Australia is a federal nation.  The State of Victoria has enacted the Charter of Human Rights and Responsibilities Act 2006.  This grants extensive rights though it appears that any of the rights may be subject to "reasonable limitations"  - see section 7.    Section 32  deals with interpretation and requires that all statutory provisions must, so far as it is possible to do so consistently with their purpose, be interpreted in a way that is compatible with human rights.  The Act is considered more fully in an interesting post on the UK Constitutional Law Group blog - "Gregoire Webber: Australia: Parliamentary review of Victoria's Charter of Human Rights and Responsibilities."

The UK position:

The U.K. was a founding member of the Council of Europe and one of the first signatories to the European Convention on Human Rights.  The current UK legislation is the Human Rights Act 1998 which, at least, sets a floor for human rights in the UK.   (The general scheme of human rights law in the UK is described on Law Observer).   However, the UK Parliament has not always shown willingness to grant rights to citizens extending beyond the European Convention - for instance, rights under the International Covenant on Civil and Political Rights or the European Union's Charter of Fundamental Rights.   A Protocol to the Lisbon Treaty, seeks to limit the applicability of the Charter to the UK:

Protocol Article 1

1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

Article 2

To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.

The various economic rights - especially those relating to employment law - in the EU Charter were considered by the British government to be detrimental to the competitiveness of British business.   For an article on the so-called "Opt out" see UK Human Rights Blog 1st March 2011 - "The EU Charter: are we in or out?"  Two further very interesting articles by Aidan O'Neill QC are on the Eutopialaw blog - "Is the UK's 'opt out' from the EU Charter of Fundamental Freedoms worth the paper it is written on?" - Part 1 and Part 2.  Is this a case where the UK tried to draw a line in the sand only for Lord Denning's incoming tide to sweep that line away?

The EU and the European Convention on Human Rights:
The European Convention on Human Rights is already recognised by the Court of Justice of the EU.   This recognition came about, at first, via the case law of the court.  Today, Article 6 of the Treaty on European Union states:

The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

The Union shall respect fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as
they result from the constitutional traditions common to the Member States, as general principles of
Community law.

The accession of the European Union to the European Convention on Human Rights was included in the Lisbon Treaty and a draft agreement has now been reached - see the excellent European Court of Human Rights blog - "Draft agreement on EU accession to ECHR" - 1st September 2011.


There is considerable variation in the detail of the various human rights enactments and methods of protecting rights.  Most British Commonwealth models have retained the principle that the various Parliaments have the final say on legislation and can legislate contrary to the particular Bill of Rights.   In the UK, rights derive from the basic point that there is a right to do whatever what is not prohibited by law but a great deal is prohibited.  The European Convention grants some rights to British citizens and the Human Rights Act 1998 has enabled those rights to be litigated in the UK courts.  Going beyond the European Convention, there appears to be no particular agreement as to which rights the British people should enjoy and some of the Convention rights are questioned.  British Ministers have subjected many a ruling of the European Court of Human Rights to either criticism or downright disagreement.  British governments appear to be almost always sceptical about anything connected to the European Union and appear reluctant to grant further rights to the peoples of the UK such as the rights within the European Charter of Fundamental Rights.  Even the rights already available may become unenforceable in practice if the massive cuts to legal aid provision are finally enacted.


  1. Even after the UK has incorporated most of the Convention into domestic law, it is arguable that rather than the HRA setting the floor level of rights it merely sinks to basement level. The Convention sets the minimum. Anything less than this amounts to abuse of human rights.

    Parliament abuses prisoners like the Nazi regime abused Jews, etc

  2. As ever Obiterj, a lucid and instructive piece. But just to be an inevitable and tedious Scottish legal nationalist, we should be a wee bit cautious about using the language of the "UK" when talking about rights protection. Although you are bang on about the Human Rights Act, which applies in Scotland too, it would be remiss to leave out the provisions of the Scotland Act 1998 on the European Convention. Unlike the Human Rights Act's procedure for the judicial declaration of incompatibility with the European Convention, the Scotland Act goes much further. Holyrood and Scottish Ministers are subject to vires control by the ECHR, and any of their acts or Acts which are incompatible with the rights set out therein render Scottish Parliamentary legislation, or acts of Scottish Ministers, legal nullities. For legislation, we're talking about s29(2)(d):

    As such, legislation emanating from the Scottish Parliament can be struck down by courts, and significantly, even if the Tories had abolished the Human Rights Act, without amending the Scotland Act, this vires limitation on Holyrood's legislative competence would continue. We don't need to seek too far for examples of the sort of litigation this can provoke. The UK Supreme Court is presently entertaining a case from big insurers, challenging the Scottish Parliament's legislation on pleural plaques on human rights grounds under s29 of the Scotland Act. We await their judgment.