Tag Archives: Bill of Rights

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What do *you* think is the way forward for human rights in Northern Ireland?

Good Friday Agreement

Good Friday Agreement

Advice on a Bill of Rights for Northern Ireland, submitted to the Secretary of State by the Northern Ireland Human Rights Commission in 2008, was roundly rejected by the UK government in 2009 and there seems to be little appetite within the Northern Ireland Office for revisiting the issue in the foreseeable future.

In London, the coalition government’s Commission on a UK Bill of Rights, set up in 2011, reported in 2012 but could not suggest an agreed way forward on a UK basis. In Scotland, on the other hand, bearing in mind the forthcoming referendum on independence in 2014, there is renewed interest in whether legislation should be passed by the Scottish Parliament to guarantee a range of social and economic rights. The Republic of Ireland, for its part, is currently re-examining its Constitution and has recently voted in a referendum to enhance the protection of children’s rights.

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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.
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South African Constitutional Court flexes its muscles on prior restraint

Print Media South Africa v Minister of Home Affairs  ([2012] ZACC 22) - read judgment.

In a “momentous”  ruling on freedom of speech, the Constitutional Court has struck down a legislative provision on prior restraint,  ”based on vague and overly broad criteria”, as offensive to the right to freedom of expression.

As the attorney for the amicus curiae Dario Milo explains in the Weekly Mail and Guardian (reposted on Inforrm), the court went even further than the relief contended for by the applicants, by striking down the entire provision as unconstitutional, rather than allowing certain criteria to be clarified  in accordance with the Bill of Rights.

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Should atheists be explicitly protected in human rights instruments?

Writing on the Richard Dawkins website, humanist campaigner Leo Igwe-Ieet declares that there is a gaping hole in the protections listed in international rights instruments.

I have heard it proclaimed at the UN that the rights of women are human rights. I have also heard it proclaimed that the rights of gay people are human rights. These proclamations changed the way human rights are perceived around the globe. Personally I have yet to hear it proclaimed at UN, or at our regional and national human rights bodies that the rights of atheists, agnostics and freethinkers are human rights. I do not want these rights to be implied or assumed as currently the case in most countries. I want them to be expressly declared as universal human rights.

The reason why such explicit protection is urgently needed, the writer claims, is because non-believers are particularly vulnerable in some parts of the world, notably Africa. In parts of Africa where fundamentalist belief holds sway, “religious non-believers are treated as if they are not human beings, as if they do not exist or do not have the right to exist.” The right to freedom of religion is of no avail to those who wish to eschew faith altogether. On the contrary,

freedom of religion is often understood as freedom to profess a religion-the religion sanctioned by the state, by one’s family or community- not freedom to change one’s religion or freedom not to profess any religion at all as contained in article 18 of the Universal Declaration of Human Rights. Continue reading →

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Strasbourg is not the Vatican…yet.

Behind the Times paywall Anthony Lester today declares that “Sniping at Strasbourg will only hinder reform”. In his guest column, he says that Court is suffering unfair criticism from “sections of the British media” and “politicians who accuse it of over-reaching its power”. That may well be the case, but the most searing and authoritative criticism comes not from politicians or the press but from Lord Lester’s own profession – see Jonathan Sumption QC’s recent broadside (and our post) and Lord Hoffmann’s much-discussed analysis (posted here).  

If the Court is indeed hobbled by unfair squibs and arrows from a resentful sector of the British populace, as Lord Lester suggests, why is the prisoner votes example the only one he can come up with? That is an important fight, at least from a constitutional angle, but not the only flashpoint;  the Court’s tendency to act as fourth instance appeal tribunal particularly on deportation and terrorism cases is arguably far more “dangerous” and certainly of concern to more people than votes for prisoners. Continue reading →

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3 days to say whether you want a UK Bill of Rights

The Commission on a Bill of Rights consultation on whether we need one (a bill, not the Commission) closes this Friday 11 November. 

The consultation document is here: Do we need a UK Bill of Rights. You can respond by email or to the Commission’s address. Our posts on the commission are here and listed below for background – you can also read our existing Bill of Rights, from 1689, here, the Magna Carta here and the Human Rights Act here.

I intend to collate responses and summarise them once the deadline passes, so please feel free to email your responses (ideally as an MS Word document or PDF) to 1crownofficerow@gmail.com .

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A grown-up speech on human rights reform

At around the same time that 79 Conservative Party MPs were rebelling over a European referendum, the Conservative Attorney General was giving a very interesting speech entitled European Convention on Human Rights – Current Challenges.

In a month in which the Justice Secretary called part of the Home Secretary’s speech on human rights “laughable” and “childlike”, Dominic Grieve presented a refreshingly grown-up argument on human rights reform.

The speech is worth reading in full. Grieve presented the Government’s arguments, most of them already well-known, on why the Human Rights Act needs to be replaced by a Bill of Rights. There were no big surprises; his central theme, subsidiarity, that is the European Court giving member states more space to set their local social policy, is something which the Justice Secretary has spoken about – see my post on his evidence to the European Scrutiny Committee.

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Who are the Bill of Rights Commission “human rights experts”?

The much trumpeted commission on a UK Bill of Rights has been launched by the Ministry of Justice. It is pretty much as was leaked last week, although it will now have 8 rather than 6 experts chaired by Sir Leigh Lewis, a former Permanent Secretary to the Department of Work and Pensions.

The commission is to report by the end of 2012. Its members, described as “human rights experts”. Are they? The roll call, made up mostly of barristers, is:

 

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Expenses scandal four lose parliamentary privilege appeal

Morley & Ors v. R [2010] EWCA Crim 1910 – Read judgment

Four former Members of Parliament have failed in their appeal of a Crown Court ruling preventing them from claiming parliamentary privilege in criminal proceedings arising from the parliamentary expenses scandal.

The appeal was of Mr Justice Saunders’ ruling in the Southwark Crown Court that the parliamentary privilege enshrined in the 1688 Bill of Rights does not extend to protecting the four ex-MPs, Elliott Morley, David Chaytor, James Devine and Lord Hanningfield, from prosecutions for claiming inflated expenses. He had said that he could “see no logical, practical or moral justification for a claim for expenses being covered by privilege; and I can see no legal justification for it either.”

The Lord Chief Justice gave the judgment of the court, and made clear that Parliamentary privilege was simply not designed to protect these four men from the allegations currently against them:

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Bill of Rights privilege plea fails parliamentary expenses four

Morley & Ors, R. v [2010] EW Misc 9 (EWCC) (11 June 2010) – Read judgment

Four former Members of Parliament have failed in their initial bid to claim parliamentary privilege in criminal proceedings arising from the parliamentary expenses scandal. The case has highlighted constitutional principles which reach back hundreds of years to the time of Oliver Cromwell, and raises questions of whether parliamentarians are above the criminal justice system.

This will not be the end of the affair, however, as leave to appeal has been granted with the case to be heard by the Court of Appeal as early as before the end of this month

Mr Justice Saunders sitting the Southwark Crown Court ruled that the parliamentary privilege enshrined in the 1688 Bill of Rights does not extend to protecting the four ex-MPs, Elliott Morley, David Chaytor, James Devine and Lord Hanningfield, from prosecutions for claiming inflated expenses.

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Geoffrey Robertson QC makes case for a British Bill of Rights

We have been following the debate on whether Britain will opt to supplement the Human Rights Act with a Bill of Rights. In a wide-ranging article published today, Geoffrey Robertson QC, a barrister specialising in human rights, has advocated “moving on from the Euro Convention – building on it, but not abandoning it.”

In the article, he concludes:

Despite these inadequacies, there is ample evidence that the Human Rights Act has measurably improved the level of dignity and decency accorded by the state to its most-vulnerable citizens, and for that relief much thanks to the Blair government which enacted it with cross-party support in 1998. But it has not, as its proponents hoped, conduced to a “culture of liberty”….

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1688 Bill of Rights may protect Parliamentary expense scandal three

The ghost of Cromwell?

With all of the talk of the Conservative Party’s proposed new Bill of Rights, it is easy to forget that we have had one on the statute books since 1688. This will now be brought into sharp focus through the Parliamentary expenses scandal, where three ex-MPs are planning to use the 322-year old Act to argue that their prosecutions should be dropped as they have Parliamentary privilege.

The 1688 Bill of Rights (passed by Parliament in 1689) established many of the democratic rights which now find form in the European Convention on Human Rights (ECHR) and other similar sources, such as the First Amendment of the United States Constitution. Some of the language is familiar, such as the provision against “cruel and unusual punishments”, which foreshadows Article 3 of the ECHR.

The intention of the 1688 Act, which is still in force, was to establish rights seen as essential to restricting the power of the monarch, and bolstering the power and independence of Parliament. The Sovereign was restricted, for example, from establishing new courts or act as judge.

The key provision in respect of the three ex-MPs is:

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

Joshua Rozenberg, in a very interesting Law Society Gazette article, outlines the main issue:

The 1688 act is still in force, and there is no doubt that it protects MPs and peers from legal action over what they say in parliament. But what is meant by ‘proceedings’? Does it cover a claim for parliamentary expenses? The defendants say it does.

And who should decide such a question? The former MPs are expected to argue that leaving it to the courts would interfere with separation of the powers, a fundamental constitutional principle under which the judges do not question the way in which parliament conducts its affairs.

The Bill of Rights is still occasionally cited in court. One notable example was during the “cash for questions” affair in the 1990s. Neil Hamilton, then a member of Parliament, brought an action in libel against The Guardian newspaper. The trial was stopped, as Mr Justice May considered that the prohibition on courts questioning Parliamentary proceedings would prevent The Guardian obtaining a fair trial. This led directly to the drafting of s.13 of the Defamation Act 1996 which allows someone being sued for defamation to waive “the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.”

In his article, Rozenberg goes on to discuss what he considers to be the comparative case of Les Huckfield, a Member of the European Parliament who was accused of dishonestly obtaining expenses of over £2,500 by deception.

Old and new

Clearly the battle lines are now being drawn in what will be interesting and potentially important litigation from a perspective of constitutional law. It is also an odd coincidence that three ex-MPs may save themselves from prison by citing a 322-year-old bill of rights at the same time that their Parliamentary ex-colleagues are attempting to enact a brand new one.

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Three perspectives on the Bill of Rights

Three interesting press articles on proposals for a Bill of Rights:

The Northern Irish perspective - Monica McWilliams, chief commissioner for Human Rights in Northern Ireland writes in The Guardian: “The Human Rights Act is central to the constitutional DNA of the UK. It underpins the devolution settlements while simultaneously elucidating the common values of the constituent nations. It also provides a necessary platform from which the sense of autonomy that devolution brings can be further built upon.” (see our post on the subject)

The NGO perspective: Qudsi Rasheed, Legal Officer for JUSTICE, the human rights NGO, writes in The Guardian: “The Conservative party’s approach to this issue has been cloak and dagger. The commission of lawyers set up by David Cameron to consider the bill of rights has been extremely secretive and none of its work has been published. Short of vague and often contradictory statements and political rhetoric by various members of the party, there has been very little in the way of concrete proposals and suggestions.“

The Australian perspective: The Australian Newspaper editorial on why the Australian Prime Minister, Kevin Rudd, was right to reject proposals for an Australian Bill of Rights: “The Rudd government’s decision last week to reject the idea of codifying rights is a recognition that Australia’s robust constitution, its strong parliamentary tradition of lawmaking, its independent judiciary, and its intelligent civic culture are the best protections for citizens. Far from protecting minority rights, statutory codification risked pitting the judiciary against the parliament by, in effect, becoming a third house of parliament.“

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President of the Supreme Court argues Human Rights Act is here to stay, perhaps [updated]

Lord Phillips comes out in support of the Human Rights Act

Lord Phillips

Lord Phillips, the head of the Supreme Court, spoke to lawyers this week on the future of the Human Rights Act 1998, which the Conservative Party have threatened to repeal. He said that now that the Act is in place, it would be very difficult to imagine a court ignoring the rights enshrined by it, even if it were repealed.

We will post the full speech if and when it becomes available. In the mean time, Afua Hirsch writing in the Guardian summarises his argument (reproduced after the page break below).

On a second-hand reading, it does seem somewhat hopeful to assume, as Lord Phillips appears to, that if the Act were repealed courts would still place rights in anything like the central position they have been since the its passing, largely through momentum. Lawyers tend to concentrate on points which win cases, rather than on first principles, and whilst human rights were a relevant consideration before the Act’s passing (judgments of the European Court of Human Rights were persuasive but not binding), they amounted to little more that.

That said, the Conservative party have pledged to replace the Act with something similar, a Bill of Rights. It is not yet clear what form it will take, but it is highly likely that the European Convention on Human Rights will be the starting point for its drafting, and it is likely to be a recalibration rather than a replacement. As such, human rights are most probably “here to stay”, but we should not overestimate the constitutional power of judges, or underestimate the power of Parliament to set the legal agenda.

Update 27/04/10

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Bill of Rights: the Northern Irish dimension

One of the main human rights debates of the General Election is whether the Human Rights Act 1998 will be replaced with or bolstered by an American-style Bill of Rights. One aspect of the debate which has been mostly ignored in the British media has been the impact which a Bill of Rights would have in Northern Ireland.

In November 2009, the Northern Ireland Office published A Bill of Rights For Northern Ireland: Next Steps, an interim report proposing that a separate Bill of Rights be drafted for Northern Ireland, on the basis that:

The need for an additional human rights framework that reflects the particular circumstances of Northern Ireland was recognised in the Belfast Agreement and given shape through the commitment to set up a Bill of Rights Forum as part of the St Andrews Agreement… The fundamental principle of mutual respect for the rights and freedoms of all the people of Northern Ireland has been at the heart of this progress, and still has a crucial role to play in its future success.

The Northern Irish Human Rights Commission responded in February, welcoming the proposal to produce a separate Bill of Rights. However, the Commission was sharply critical of the tone and content of the substantive proposals. Amongst other things, it accused the proposal of failing to take appropriate account of international standards and of suggesting that existing human rights standards are actually lowered.

The Committee for the Administration of Justice (CAJ), an independent human rights organisation, have also recently published their own response to the interim report, and have also argued that the proposals are too weak and do not go far enough in increasing human rights protections. CAJ say:

A Bill of Rights is one of the final parts of the human rights jigsaw; it ensures that rights currently enjoyed cannot be taken away at the whim of any government. It is intended to ensure, in a divided society, that whoever exercises governance over this disputed ground cannot rule without respecting the rights of everyone who lives here. It also ensures that those who are not or do not identify primarily as part of the two main communities will have their rights respected also.

The Bill of Rights for Northern Ireland is clearly in its early planning stages, and may not go ahead at all. That said, it is more advanced than English and Scottish proposals, which, if they ever happen, will certainly not do so until long after the Election.

Read more:

  • Well informed posts on the topic on the Human Rights in Ireland Blog can be found here, here, here, here, here and here
  • Relatedly, the Chair of the Scottish Human Rights Commission writes in the Guardian about the Bill of Rights and his fears that it may create a “two-tier” system