Will the Bill of Rights Commission achieve anything at all? – Alice Donald

19 September 2012 by Guest Contributor

It’ll all be over by Christmas: that’s what the coalition promised when it established the Commission on a Bill of Rights to, among other things:

… 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 extends our liberties.

With less than four months to go, it seems a good time to reflect upon its work. My premise is that the process by which a bill of rights is created is as important as the outcome if the bill is to enjoy longevity and democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation. This lesson has been learned in contexts from Northern Ireland to Australia, where energetic consultation processes were designed using community organising techniques, televised hearings, the internet, social networking and other creative forms of public engagement. These are explored in research I conducted for the Equality and Human Rights Commission ahead of the 2010 general election.

Into the long grass

The Commission had a difficult birth. It was plainly a means of hoofing into the long grass a potentially coalition-wrecking issue. This has created a taint of bad faith about the process which any Commissioners would have struggled to expunge. Before its work had even begun, the Commission was criticised for its lack of diversity, being comprised of eight white men and one white woman, with two Scots and no one based in Wales or Northern Ireland. In March 2012, the only non-QC on the Commission, Michael Pinto-Duschinsky, left acrimoniously – to be replaced by Lord Faulks QC.

There were predictions, too, that the Commission would inevitably become deadlocked, given that its eight members (excluding the chair, Sir Leigh Lewis) are equally split between avowed supporters and detractors of the Human Rights Act (HRA). By contrast, while having access to human rights expertise, Australian bills of rights processes have been run by independent committees of ‘clean skins’ nominated on a cross-party basis.

In evidence to the Political and Constitutional Reform Committee (reported here) Commissioners acknowledged these potential defects. Lord Lester said that,

We are really essentially of the legal class and that has advantages but also serious disadvantages. We are going to have to go out and listen and discuss with an enormous range of people to overcome these disadvantages.

On the risk of a standoff, he added that,

… contrary to what the outside world thinks, my view is that members of this Commission… are not going to split on party lines and argue like cats in a bag.

Perhaps mindful to avoid the proverbial cat fight, the Commission’s first ‘discussion paper’  in August 2011 was (as noted here) an arid affair, which provided a factual description of the UK’s human rights and constitutional architecture but omitted any discussion of what a new Bill of Rights might entail, why it might be needed or how it might relate to the HRA. Nevertheless, the consultation elicited more than 900 responses – an impressive tally compared to the lacklustre response to Labour’s 2009 consultation on a ‘Bill of Rights and Responsibilities’.

It was puzzling then, that in July 2012, the Commission issued a second consultation document, which is more substantial and discursive than the first and invites responses by 30 September. As argued by Adam Wagner here, it seems unlikely that the Commission will be able to take full account of responses to both this and the first consultation in time to report by the end of the year.

In addition, the Commission has held discussions with judiciaries across the UK and with the Justices of the Supreme Court. It has also co-hosted two seminars with academics and legal practitioners (summarised here and here) and a third with community representatives and practitioners in Birmingham (transcribed here).

Minutes of the Commission’s meetings betray a tension between the ambitious community outreach that Commissioners originally aspired to conduct and constraints imposed by their budget (I am told this was £97,500 in 2011-12, plus £66,000 for the Commissioners’ remuneration for working three days per month). In January 2012, proposals by one (unnamed) Commissioner for a ‘substantially augmented work programme’, including 50 public hearings, were considered to ‘substantially exceed the resources available’.

The Commission’s protracted timescale, combined with its modest resources and unimaginative methodology, appear likely to frustrate the achievement of momentum behind a new UK Bill of Rights—and with it any wider objective to design a process which becomes (as one participant in my research put it) ‘an exercise in building citizenship rather than just market research’. Nor does it appear that the Commission has the intention or resources to elicit the views of marginalised or disadvantaged groups whose human rights are most centrally at stake in this debate.

The imperative of inclusivity also extends to the devolution question that hangs over the Bill of Rights process. In late 2011, Commissioners met representatives of the administrations and legislatures in two-day visits to each devolved nation. The Commission established an Advisory Panel nominated by the devolved administrations (though no-one appears to have been nominated from Northern Ireland). Advisers from Scotland and Wales ventured at the Commission’s January meeting  that a new UK Bill of Rights was neither necessary nor desirable and that amendments to the HRA would be politically and constitutionally destabilising.

No consensus

This is not the only area where disagreement persists. While Commissioners stated in February that they ‘would wish to strive for the maximum degree of unanimity’, in April, Sir Leigh Lewis acknowledged that there was as yet,

… no consensus within the Commission on the fundamental issue of whether or not a UK Bill of Rights was needed and, if so, what problems it would address.

In a clue to the possible shape of the final report, the Chair proposed that the Commission might find a ‘centre of gravity’ around two elements. First, ‘setting out a discussion of that issue, including the potential advantages of a UK Bill of Rights’ – which sounds to me like ‘agreeing to disagree’. Secondly,

… the starting point that the UK would adhere to the European Convention on Human Rights and accept the jurisdiction of the Strasbourg Court.

It is not clear why this parameter needed to be restated given the Commission’s terms of reference (stated above) which would appear to exclude these possibilities.  Sir Leigh’s choice of words reveals the divisions that persist between Commissioners – and within the coalition. This brings us back to the issue of good faith. The coalition has issued no clear statement about the purpose of a UK Bill of Rights beyond the perceived need among some Conservatives to ‘rebrand’ the HRA or make it more ‘British’. Nor has it given any commitment to act upon the outcome of the Commission’s recommendations within a certain timeframe.  The risk of a process that lacks serious political commitment is public disillusionment and a lack of legitimacy for the outcome.

The Commission is also mandated to ‘consider ways to promote a better understanding of the true scope’ of the UK’s human rights obligations. Given the inauspicious circumstances of its birth, an improved understanding of human rights among both politicians and the public would be a considerable achievement.

Alice Donald is a Senior Research Fellow at the Human Rights and Social Justice Research Institute, London Metropolitan University.

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