The Bill of Rights Commission report: a modest proposal

COMBAR

Update, 15:15: I originally referred below to there being a majority of six versus two in favour of introducing a bill of rights. This was wrong – in fact there were seven. The Commission chair, Sir Leigh Lewis, should have been included in that number.

The Commission on a Bill of Rights has reported, just in time for its end-of-2012 deadline. The documents are here: News release ; Volume 1 ; Volume 2.

I have read the introduction, which sets out the main proposals. A few things that jumped out:

  • As predicted by most people since the beginning, there are areas of agreement but also some significant disagreements. Only seven out of the nine Commissioners believe there should be a bill of rights. Helena Kennedy and Philippe Sands disagree. Even the title is equivocal: “A UK Bill of Rights? The choice before us“.
  • This is not a unified document, but rather a running, almost Socratic, dialectic between the nine members. It is difficult to follow who agrees with which bit, even in individual paragraphs which are often qualified by “a majority believes”. Bizarrely, and going beyond even my pessimistic expectations of strife, there are eight (eight!) separate papers written by individuals and groups of individuals included in the report, including one by Lord Faulks and Jonathan Fisher on the European Court and why it is going beyond its original remit, one by Sands and Kennedy on why they don’t think there should be a bill of rights, a personal explanatory note by Lord Lester… it goes on. That is one of the reasons this is such a long document.
  • Insofar as there seven of nine recommend a bill of rights, they do so essentially as a rebranding exercise. The argument is that things have got so bad with the Human Rights Act that we might as well start over: “a majority of members believe that the present position is unlikely to be a stable one. Some of the voices both for and against the current structures are now so strident, and public debate so polarised, that there is a strong argument for a fresh beginning.” [84] Here is a particularly depressing paragraph which bears repeating in full:

All of us believe that there is indeed a role for better public education and understanding of the present human rights structures and their effect… but the majority of members find it hard to persuade themselves that public perceptions are likely to change in any substantial way as a result, particularly given the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media. It follows that most members believe that more of the same is likely to lead simply to more of the same; a highly polarised division of views between those for and against our current human rights structures.

  • Devolution casts a long shadow over this report, as has been predicted by many including on this blog. The potential and actual de-coupling of Northern Ireland and Scotland from the United Kingdom is important and not much can be done before things are at least clearer in terms of the Scottish referendum: see [43-44]. This is a good reason for delay, it seems to me.
  • On the European Court of Human Rights, the Commission wasn’t really asked to think about the court except by way of expressing an early view on reform prior to the largely successful (in the Commission’s view as well as mine) Brighton Conference. They all agree the court needs reforming, some of them think more urgent action is needed to stop its excesses: see the side-report mentioned above.
  • Another reason for delaying any action on a bill of rights is that further public consultation would be needed on any future bill: the ” process of moving towards the creation of a UK Bill of Rights would have to be undertaken gradually, with full consultation, and with great care to avoid creating divisiveness and disharmony.” Good point, but didn’t the Commission undertake two consultations? See my post about openness.
  • Importantly, the Commission does not recommend the introduction of ‘responsibilities’ into a bill of rights: “it is in the nature of human rights that they exist for all human beings equally without reference to whether they are ‘deserving’ or not and that they cannot be made directly contingent on the behaviour of the individuals concerned.” [100]. They do think that the existing qualified rights in the European Convention on Human Rights, which subject to exceptions such as “necessary in a democratic society”, already impose an element of responsibility and could be emphasised.
  • The language of the bill of rights should reflect “the distinctive history and heritage of the countries within the United Kingdom.” Whatever that means [86]. At least they haven’t recommended that the language should be “magnificent in tone” as UKIP suggested in its consultation response.
  • Also importantly, the Commission has not recommended “socio economic” or environmental rights being added to a bill of rights – see [91]: “All other things being equal a majority of members believe that such choices are better made by Parliaments rather than judges.”
  • To the extent that the Commission recommends any additional rights, it recommends a “right to equality and non-discrimination currently enshrined in the Equality Act 2010″. The effect of this would be very minimal indeed, as it would effectively just bring the already existing Equality Act within the larger umbrella of a bill of rights [91].
  • The Commission proposes tinkering with the Human Rights Act, for example broadening the definition of ‘public authority’ (only public authorities can be sued under the Act) in order to allow for the rise of private sector organisations providing public services.

Well, that’s that then. A very modest proposal. This is not surprising; the Commission was limited to proposing a Bill of Rights that “incorporates and builds on all our obligations under the European Convention on Human Rights“. In other words, the could do very little at all except fiddle with our already existing, and actually quite elegant, Human Rights Act 1998.

The impression I get from the document is that leaving aside all of the disagreements between the member (and there are many) they largely viewed the Human Rights Act as what it is: a clever way of incorporating explicit rights into our legal system whilst maintaining Parliamentary sovereignty. They have recommended some tweaking of that Act, and potentially (although not for a while, thanks) rebranding it largely so as to sell it to the public as opposed to making any substantive changes. See my Ford Fiesta analogy.

The position on the European Court of Human Rights is different and really is for another day. It seems clear from Chris Grayling’s recent comments and his Telegraph article today that the Conservatives may include separation from Strasbourg as a manifesto pledge for the next election.

That may be popular but it seems to me a stance based more on anti-European sentiment than legal analysis. Thanks to the Human Rights Act, the European Court of Human Rights now issues only a tiny fraction of human rights judgments which effect our legal system (last year there were nine against the UK, as compared to 100s of human rights judgments in our domestic courts). That was the point of the Act. The court is not particularly barmy, which surely they would have to be in order to justify breaking free of the Council of Europe, which does a huge amount of good across Europe.

Leaving Europe aside, the Commission on a Bill of Rights has not been a complete waste of time. It has produced  an interesting health check of the human rights system as it is functioning today, warts and all. It is a shame that the Commission couldn’t agree on many things (I wouldn’t have liked to have been there when they were deciding what biscuits to buy for meetings) but they were structurally hampered by the initial, Usual Suspects-style artificiality of the exercise. In the final analysis, this was a group of advocates with fiercely divergent views, but without a judge to decide who wins.

Where do we go from here? Nowhere very fast. The Commission has recommended that before anything is done on a bill of rights there should be further consultation, which will presumably need to be analysed by a different (hopefully less divisive) group.

The most positive thing which could result from this Commission is some fresh thinking on how to build rights into our constitutional system, and involve the public from the start. That rather modest aim may ultimately be the best way of protecting those rights from more political manoeuvring of the type which led to the creation of this rather unhappy Commission.

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13 thoughts on “The Bill of Rights Commission report: a modest proposal

  1. If they simply decided that there should be “no punishment without crime” ie no baby or child should be removed from parents unless at least one parent had either been charged with or convicted of a crime against a child.Punishment without crime is an iniquity and all parents should have the same protections in the family courts as alleged murderers and rapists enjoy in the criminal courts.

  2. 18 December 2012
    Dear Mr Wagner
    Thank you very much for your excellent reprise of the Commissioner’s brief and subsequent Report.
    As always, you provide clear, concise analysis which enables us to get an overview of some very complex issues.
    My questions are as follows:
    1] If the UK leaves the European Community/European Union what will become of our Human Rights legislation
    a] in England
    b] in Scotland
    c] in Northern Ireland
    d] in Wales
    e] in Crown Dependencies
    f] Falkland Islands [disputed over its sovereignty]
    g] where Queen Elizabeth II is Head of State
    2] If Scotland declares Independence and removes itself from the United Kingdom, will Scotland negotiate a separate set of Human Rights legislation, and, if so, is this in train at present?
    3] Is the Welsh Assembly in agreement with the Human Rights legislation and what would happen if the Welsh Assembly wanted one set of Human Rights and might be in conflict with what Westminster might wish?
    4] Is the Northern Ireland Parliament of Stormont in agreement with the Human Rights legislation and what would happen if the people of Northen Ireland voted to have different set of Human Rights from the rest of the UK, what would happen then?
    5] And what about the variations in legislation already in place, as the Commissioners themselves identify that it might be best to “start over” according to your blog above, will these be removed so that we all have one set of laws throughout the United Kingdom or not?
    6] And what about Human Rights for people with mental health issues? What is being done under the ECHR to stop the widespread abuse of “sectioning” and detaining people against their will and without their consent to be compulsorily detained and treated for the first 3 months without any by your leave at all? Once in the system, people can find it extremely difficult to get out of it. If a person is deemed to have an illness, normally people can decide for themselves if they wish to have treatment or not. It is up to the clinical team to decide whether or not they will agree to treat in the way that the patient wishes, as a patient can REFUSE treatment but CANNOT insist on having specific treatment. Yet under the Mental Health Act 1983 [amended by the Mental Health Act 2007] on the say so of two clinicians and an AMHP application, a person can be detained on very slender evidence, in my opinion, especially where there is uncertainty as to whether or not a person actually has a mental health condition rather than a physical condition that mimics serious mental health condition, as psychoses can be the result of things as commonplace as urinary tract infections. Yet with incomplete knowledge, miscarriages of justice can happen, and do happen, as witnessed by serious case law.
    Habeas Corpus is essential to protect all of us, including people with mental health issues.
    I would be most grateful for your views and those of everyone else.
    Thank you again for bringing this to our attention.
    With best wishes
    Rosemary Cantwell

    • 1. Human rights come from the Council of Europe’s Convention on Human Rights and not the EU. If UK were to exit the Council of Europe then it would be up to Parliament to determine the rights available to persons with (a) to (d). Parliament already controls rights available in (e) and (f) but in (g) there are mostly self-governing nations (e.g. Canada , Australia).

      2. Scotland – if it becomes independent – would sort out its own rights. Very likely remaining member of Council of Europe and existing convention.

      3. Commission says there could be a basic set of rights for UK but countries within UK could have more if they so choose.

      4. Northern Ireland very likely to come up with its own Bill – there is a separate process looking in to that

      5. Commission did not seem worried about this – basic set of rights for UK as whole but could be extras in some parts of UK

      6. “Mental health” – complicated and difficult questions here – not my area of expertise I’m afraid.

  3. Chris Grayling’s sentiments on seperation from Strasbourg don’t bear thinking about. If the executive was to get its way on this aspect how would the public be able to challenge the State on valid Human Rights violations ignored by the UK Courts? We are talking here about genuine and serious Human Rights violations by the State i.e. deaths at the hands of the State (Article 2 deaths) not being subject to effective and proper investigation by the State. The UK Courts bend over backwards in respect of backing other less serious Human Rights breaches, however when it comes to deaths at the hands of the State and issues of inhuman treatment of citizens by the State we appear to have lack of interst by UK courts to resolve these matters in the public interst. It is publicly dangerous to take away the Strasbourg option in challenging the State on these highly important democratic Articles. Mr Grayling’s sentiments on this matter are purely averse to the public interst. It doesn’t take a genious to work out Mr Grayling’s underhanded pro State intentions on this issue.

    • I for one would not trust politicians to protect our rights. If the Supremacy of Parliament is untrammelled then all sorts of abuses will become rife.

  4. Good to see this paragraph (no 100, vol 1)

    “Having considered this very carefully our own conclusion is that it is in the nature of human rights that they exist for all human beings equally without reference to whether they are ‘deserving’ or not and that they cannot be made directly contingent on the behaviour of the individuals concerned. We thus do not believe, if there were to be a UK Bill of Rights, that the rights it contained should be made conditional upon the exercise of responsibilities.”

    So prisoners should have votes, and just because Abu Hamza is a nasty Islamic terrorist, (with a beard and a fancy house at our taxpayers’ expense) and has evil thoughts) he has human rights too. :)

    My worry was many of our politicians set this commission up to see how many rights could be removed from people.

    • I also fear this government’s agenda. However, rights exist because of the fact that a person is human. They cannot therefore be dependent on how the person has behaved. If they became linked then, as an example the right to a fair trial could become subject to past behaviour etc.

  5. Another point in respect of Mr Grayling’s intention to depart from Stransbourg – where would the public go in respect of no effective remedy (Article 13)? Answer = nowhere fast. The only place to challenge on a no effective remedy ground is Stransbourg. In the above situation Mr Grayling and his associates would give themselves a green light not to provide an effective remedy due to the public having no route to challenge such a situation. Mr Grayling’s intentions appear non too admirable and anti democratic?

  6. No British Bill of Rights could possibly over-ride the Human Rights Act- ECHR which is perhaps the main reason given (by the Brtitish Government and both Houses of Parliament) for introducing it. However, if a referendum on a new UK Bill of Rights was given to the British people, and was ACCEPTED by the British people, (one way or another), THE ‘NEW’ MAY be deemed to OVER-RIDE our Declaration and Bill of Rights 1688/9 WE ALREADY HAVE, AND IT MAY be seemed to ALSO OVER-RIDE MAGNA CARTA THAT HAS BEEN MENTIONED TIME AND TIME AGAIN IN BOTH HOUSES OF PARLIAMENT and has prevented certain Legislation from going through these Acts cannot be alterred by Government or Parliament for, according to R v Thistlewood 1820, “To destroy the Constitution is an Act of TREASON. AND THAT is why the proposal for new Bill of Rights is put to the people in a referendum? Should perhaps the people accept the NEW BILL OF RIGHTS perhaps in the hope the people will destroy their own RIGHTS so that deeper and more meaningful integration into the EU can take place without treason being committed, but we may NEVER be given a referendum on getting out of the EU.

    I quote (the late) Lord Renton when he said (Lords Hansard 20th July 6 2000) “My Lords, before the noble Lord sits down, perhaps I might mention one point in relation to his fascinating speech. He suggests that we should amend Magna Carta. We cannot do that. Magna Carta was formulated before we ever had a Parliament. All that we can do is to amend that legislation which, in later years when we did have a Parliament, implemented Magna Carta”.

    As soon as the people have been seen to have voted FOR this New Bill of Rights, the EU will over-ride “THE NEW” Simples!

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

  8. There is a lot written about the Magna Carta and the historical Bill of Rights.
    Sorry, folks. I did my history in Northern Ireland, and as far as I know, NI, or even Ireland, ever signed/imlimented these two “thingies”. They were certainly only just tangentally touched upon in _my_ history. I assume the same for Scotland. (And as for Wales?)

  9. The government’s anti-European rhetoric directed as it is at both the European Court of Human Rights as well as the Court of Justice of the European Union is nothing more than a constituent element of ‘punching above our weight’. I allows the Government to exercise a greater degree of political pressure that it would otherwise enjoy in securing a larger margin of appreciation in the judgments handed down by the European Court of Human Rights while, at the EU level, it allows us to exert a greater degree of political pressure among the Council of Ministers within a body desperate to maintain European unity. It is a game of Poker played out in the cloistered halls of the political establishment.

    What tends to be left out of debate in this area is that even if the government of the day withdrew from the Council of Europe, discarded the Convention, and repealed the Human Rights Act, it cannot ignore the vast body of case law that has accumulated by way of binding precedent within the corpus juris of English law. The doctrine of Parliamentary supremacy exists only because the English Courts gave effect to it after the ‘glorious revolution’ as the means of preserving its authority. The judiciary of England and Wales remain an independent estate within the Realm who would continue to operate at common law what the government would foolishly choose to abandon.

    Those who listen to British Politicians, let alone take them seriously are on a journey to nowhere. Like the courts, the political establishment does nothing in vain since it has nothing to gain politically by pressing ‘nuclear’ trigger of disengagement and leaving itself isolated.

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