Rights on the rocks: Some Bill of Rights Commission responses

22 November 2011 by Adam Wagner

Updated x 3 | One way or another, by the end of this Parliament, rights protections in the UK will look very different. If you could pull yourself away from the spectacle of actor Hugh Grant giving evidence to the Leveson Inquiry into phone hacking, the main event in yesterday’s live legal transmission bonanza was the second debate on the Legal Aid and Sentencing of Offenders Bill in the House of Lords.

Although the bill is likely to pass, it is likely to do so in slightly revised form – knowledgable tweeters were predicting that the domestic violence and clinical negligence provisions were most likely to be affected.

Meanwhile, over at the Commission on a Bill of Rights, the somewhat dysfunctional committee will be combing through responses to its recently closed consultation. I have collated some of the responses below, mainly from people who have sent them to me. What follows is an entirely unscientific summary.

Liberty: No surprises here: “Liberty believes that all the Convention rights incorporated by the HRA deserve protection and we cannot imagine voluntarily parting with any of these vital safeguards against state oppression. In addition, we believe that the accessible and unique enforcement mechanisms provided by the HRA represent a bare minimum for rights enforcement in any UK Bill of Rights.”

The Law Society: “The Law Society is opposed to the inclusion of responsibilities in a BoR… strongly opposes allowing an ECtHR decision to be overridden by PACE and or Committee of Ministers.. Economic, social, and cultural rights should be included in any public consultation.”

University of Cambridge Faculty of Law: An intelligent, concise response: “One of the ambitions of the HRA was to enable human rights issues to be litigated in domestic courts… This ambition has been realized, even though the substantial mythology surrounding the HRA has distorted public perceptions of its effects. Against this background, there is certainly a case for promoting better understanding of the UK’s obligations under the ECHR… Whether the adoption of a ‘UK Bill of Rights’ would be of a piece with the ambition to demystify human rights law is, however, open to doubt“.

British Institute of Human Rights: “On the face of it this Bill of Rights debate may seem like an opportunity to call for the legal protection of a broader range of rights beyond those in the HRA but we have serious reservations that this is not what is on the table and, in fact, that human rights may be weakened. The focus on expanding the list of human rights which are protected may (even inadvertently) be at the expense of underlining the importance of the mechanisms for making those rights enforceable.”

Equality South West: They are worried that the consultation has not been well enough publicised, and affected by political rhetoric by the Prime Minister and Home Secretary: “It is our view that any Bill of Rights should be complementary to the Human Rights Act and not replace it. If it were drafted in such a way as to help educate and inform individuals and public bodies about their rights and responsibilities under the Human Rights Act it would be a positive and constructive development.”

The Children’s Commissioner: Raises the possibility of economic and social rights, which are on some people’s wish list for COMBOR but to me seem an unlikely outcome, not least because of the likely cost to the public purse: “We sternly support the inclusion of economic, social and cultural rights in a UK Bill of Rights… These rights’ interdependence with and indivisibility from the civil and political rights of children is underlined in the UNCRC…”

Professor Francesca Klug and Helen Wildbore, London School of Economics: Professor Klug knows her bill of rights, having researched and written about it for years. In short, we already have one and anything new should be a Human Rights Act “plus”: “To ensure a new Bill of Rights fulfilled the Commission’s terms of reference, any additional rights would need to cover new ground, or transparently supplement ECHR rights. They should demonstrably enhance rights protection… On the basis of our research on comparative Bills of Rights there is no instance we can find where a Bill of Rights has been passed in order to reduce the accountability of the executive or legislature to the courts, rather than the other way round.”

Human Rights Consortium Scotland: A network of 34 Scottish human rights organisations, who are “not persuaded” that a case for a bill of rights has been made so far, and in fact: “are concerned about the failure to address the real problem which is the lack of explicit compliance with the Human Rights Act across the UK and believe the Government’s energies should be invested in making the equal enjoyment of human rights a reality for ordinary people across the UK.”

Obiter J: The well-known legal blogger supports a human rights act plus, arguing that international obligations regarding the rights of children should be incorporated as well as potentially “putting into “modern form some of our older laws such as the Bill of Rights 1688 and what remains of Magna Carta“.

Northern Ireland Human Rights Commission: The Northern Ireland dimension is something of an elephant in the room at COMBOR, as nobody seems clear as to how it will fit in to the project. To that end, the commission argue (along with the Scottish Human Rights Commission) that the Human Rights Act should be “ring-fenced” but that “further domestic effect should be given to a number of ECHR provisions currently excluded from Schedule 1 of the Human Rights Act 1998, including Protocol 4, Articles 1 and 2 (1,4).” Moreover, “a Bill of Rights for Northern Ireland should be enacted as envisaged in the Belfast (Good Friday) Agreement 1998 and the Northern Ireland Act 1998“.

Scottish Human Rights Commission: “the current political climate presents singularly unfavourable conditions in which to launch a consultation on a UK Bill of Rights and proposes alternative steps which are more likely to lead to progressive, rather than retrogressive, outcomes for the public”

SAMH: This mental health charity opposes a Bill of Rights: “Whilst the concept of a UK Bill of Rights may be appealing on the surface, SAMH has serious concerns that the introduction of a UK Bill of Rights could result in the erosion of existing human rights protections. SAMH opposes any action which could potentially allow for a weakening of the Human Rights Act”.

Freedom from Torture: “rather than going down the complicated road of creating new constitutional legislation, what the UK needs at this stage is a programme of public education about the Human Rights Act so that there is better understanding across the board of the rights it enshrines and the mechanisms it uses ”

Joint Council for the Welfare of Immigrants: “Whilst we advocate for a human rights based approach to immigration, asylum and nationality law and policy making, we take the view that the UK does not need a bill of rights as such – the Human Rights Act (“HRA”) which exhibits many of the features of a bill of rights, in our view offers an appropriate mechanism to safeguard and promote the rights of all in our jurisdiction. We are extremely concerned by the prospect of its repeal.”

Sussex Law School: “we already have a UK Bill of Rights, the UK Human Rights Act 1998, and that this existing mechanism of rights protection needs to be protected at all costs… Parliamentary sovereignty is also protected under the HRA…  discomfort with, or criticisms of, rulings of the Strasbourg Court need to be decoupled from concerns about the Human Rights Act itself.”

London Metropolitan University: “much political (and especially Conservative) discourse about the need for either a ‘British’ or ‘UK’ Bill of Rights is predicated on the assertion that we do not already have one… This is not to suggest that a convincing case could not be made for developing a new Bill of Rights; for example, one that affords domestic recognition to economic and social rights. However, we suggest that a convincing case has not been articulated by those who have initiated the process of reform – including the Labour government in respect of its consultation in 2009 on a ‘Bill of Rights and Responsibilities’.

Age UK: “... the 1998 Human Rights Act (HRA) is a UK Bill of Rights and as such there is no need to introduce a further Bill of Rights … Should a Bill of Rights be introduced it should extend the protection provided by the HRA to all older people by ensuring that providers of residential and homecare services are regarded as public authorities for the purposes of the HRA, regardless of who is funding the service provided.”

University College London Institute of Human Rights: Protections afforded by the HRA should be maintained along with its structure (in the sense of how rights are enforced against public authorities). UCL also encourages a “recommendation to include new rights, like social rights, in a BBR would show the Commission was bringing added value to the status quo” as well as “general statements on civic responsibility in BBR, but not as a list of enforceable duties with judicial effect that may act to limit Convention rights“.

A new Ford Fiesta?

What does this all tell us? In one sense, not very much – the organisations mentioned above are not necessarily a representative sample, in that they are simply the organisations which have responded to my request or whose responses I have tracked down online.

But in another sense, the similarity of the submissions is striking. In my post Reports of the Human Rights Act’s death have been greatly exaggerated, I compared the potential bill of rights to a new Ford Fiesta: with the European Convention on Human Rights at its centre, it will have a new look and a few new features, but essentially the same car.

Indeed, the overwhelming consensus in the submissions refereed to above seems to be that the UK already has a bill of rights – the Human Rights Act 1998 – and it is working pretty well. In so far as it could be improved, various proposals are made, centring on economic, social and cultural  rights or other more traditional common law rights which are currently not enshrined in statute, such as the right to trial by jury. I would be very surprised if so-called ESCRs ultimately are recommended; not least because of their potentially high cost.

There is also a strong sense in the responses that the Human Rights Act suffers from a poor and sometimes poisonous public reputation, and that as set out in its terms of reference, the Commission should work to address this.

It is notable that there are so few organisations so far which have proposed a convincing case for a UK Bill of Rights. If those organisations exist (I note that Policy Exchange has not yet published a response), it would be great to hear from them. In the meantime, the future of UK rights protection is at best uncertain.

Update, 23 November 2011 – A couple more responses have arrived in my inbox. I will keep updating this post as I find more.

Society of Conservative Lawyers: Offer “qualified” support for a bill of rights: “The HRA itself is not working. A convention which was intended to protect human rights and fundamental freedoms has become associated instead in the public mind, not without some justification, with dubious compensation claims, complaints about the trivial, the protection of lawbreakers rather than the law abiding majority, a transfer of decision making on economic and social policy to judges and the enrichment of lawyers.”

Church of England: “No” to a bill of rights: “We find the proposal set out in the first of the Commission’s Terms of Reference puzzling in a number of respects. First, the stipulation that a UK Bill of Rights would “incorporate and build on” all our obligations under the European Convention on Human Rights raises the question of the meaning of “building on” ECHR obligations and how this would operate. Second, it is unclear what is meant by the function of “ensuring that these rights continue to be enshrined in UK law” and how this would be achieved. Third, it is unclear how a Bill of Rights would “protect and extend our liberties”.”

Dr Austen Morgan: This is an interesting submission, focusing on the history of various rights instruments domestically and internationally. Morgan was a member of the Conservative Party Bill of Rights Commission 2007-10. He considers the HRA 1998 was drafted with “great skill”, but a bill of rights could continue that project. He favours a bill of rights based on the “modernization, and possibly the adaptation of the 2000 charter of fundamental rights (for non-EU competencies).” But “a civilized democracy needs to grow its own rights“. There is a lot more in this submission and it is worth reading in full.

Update, 5 December 2011 – The human rights and law reform organisation JUSTICE has posted its response: “In our view, the HRA 1998 currently performs the core functions of a bill of rights for the UK. We are not persuaded that there is any evidence-based argument for change to the substantive and procedural guarantees in the Act, or that the current debate about a bill of rights for the UK is appropriate, at this time.” JUSTICE go on to state “minimum criteria” to be met in order to justify a bill of rights (see pages 2-4).

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Related posts

• Previous posts on a Bill of Rights
• Listen to Northern Ireland’s advice on a UK bill of rights – Colin Harvey
• Reports of the Human Rights Act’s death have been greatly exaggerated
• Rehashing old ideas? A response to the Bill of Rights Commission’s proposals
• Bill of Rights Commission publishes advice (and squabbles) on European Court of Human Rights reform