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.

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