Do we need a UK Bill of Rights?

5 August 2011 by

The UK Bill of Rights Commission has launched a public consultation on whether we need a Bill of Rights.

The consultation document is here and reproduced below. You have until 11 November 2011 to respond and you can do so via email or post.

The document provides a useful and fairly noncontroversial summary of rights protections as they currently exist within the UK constitutional structure. It does not, however, provide any information at all about what a “bill of rights” might entail or how such instruments work in other countries: contrast the far more detailed (and very useful) document produced in 2010 by the Equality and Human Rights Commission.

The Bill of Rights Commission was established in March 2011 and is due to report by the end of 2012. It is composed of 9 people, mostly Queen’s Counsel and not all of whom are human rights experts. For detailed background, see my most recent post as well as this excellent post on the UK Constitutional Law Group blog.

One interesting point which the consultation document makes is that:

no British rights that are ‘fundamental’ in the sense that they enjoy special constitutional protection against Parliament.

This represents the orthodox view of rights in UK law. However Lords Phillips and Hope – respectively the president and deputy president of the UK Supreme Court – have both argued recently that protections under the European Convention on Human Rights may have attained “constitutional” status. This means that if human rights were taken out of UK law, the courts may be able to apply them anyway, even if Parliament did not want them to.

In any event, this is an academic argument at present as the Bill of Rights Commission is not permitted by its terms of reference to recommend withdrawal from the European Convention on Human Rights (ECHR). At the moment we have a Human Rights Act, which incorporates the ECHR into UK law. Any Bill of Rights would have to be a “Human Rights Act plus”, as thanks to the Coalition Agreement, it cannot be a “Human Rights Act minus”.

It could, however, complicate matters. As I have pointed out before, the legal status of human rights protections in the UK is already pretty complex, potentially more so as a result of the EU Charter of Fundamental Rights (see para 46 of the consultation document, Rosalind English’s and this UK Constitutional Law Group post).

If a UK Bill of Rights ends up making things more complicated, by dividing and tailoring (to coin a phrase) the rights which already and exist under the ECHR, it will probably help nobody but lawyers.

The Commission is asking four questions:

(1) do you think we need a UK Bill of Rights?

If so,

(2) what do you think a UK Bill of Rights should contain?

(3) how do you think it should apply to the UK as a whole, including its four component countries of England, Northern Ireland, Scotland and Wales?

(4) having regard to our terms of reference, are there any other views which you would like to put forward at this stage?

I am yet to read any strong case for a positive answer to question 1. With that in mind, whether the Commission finds anything useful to do aside from making politically motivated gestures – for example on immigration and deportation – remains to be seen.

Given the Commission’s limited remit, the most that can be expected is two main recommendations.

First, a slight recalibration of the rights and responsibilities for the UK. As I have suggested before, this is an odd exercise to do in respect of “universal” rights which are broadly drafted and supposed to transcend national and cultural boundaries. It is also an end which could easily and less expensively be achieved by amending the Human Rights Act.

Secondly, a rebranding of the Human Rights Act as a “British” instrument, leaving aside the often made point that European Convention is a very British document already. This may make politicians feel more comfortable supporting it, rather than saying that rulings make them feel physically sick, but is unlikely to affect rights protections in any significant way.

Hopefully the public consultation will prompt some thoughtful responses which will be listened to, and the Commission will generate some creative ideas to improve rights protections in the UK. In the meantime, we have three months to let them know our thoughts.

View this document on Scribd

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy private nuisance private use Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest rights Protocol 15 Public/Private public access publication public authorities public inquiries public interest immunity quango quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: