Second time lucky? Bill of Rights Commission consults… again

11 July 2012 by

Last year, the troubled Commission on a Bill of Rights consulted the public on whether the UK needed a new human rights instrument. Many, including me, commented that the consultation document was a little sparse on detail.  In any event, the consultation closed in November 2011. The full responses have been published here and you can also read my  summary of some of the submissions

Anyway, eight months and one acrimonious resignation later, not to mention just over 5 months before the Commission is due to report, they are consulting again. This time, the consultation document is more substantial and provides some useful detail as to the kind of ideas being considered. The Commission has requested that those responding don’t repeat what they have already said. The deadline for responses is 30 September 2012. This must put the Commission’s deadline to report by the end of 2012  in some doubt, unless the point of the consultation is simply to confirm what it has already decided.

The Commission was established in March 2011 and is due to report by the end of 2012. It was initially composed of 8 people, mostly Queen’s Counsel and not all of whom are human rights experts, but in March of this year the only non-QC Michael Pinto-Duschinsky left under something of a cloud (see my post), expressing a litany of complaints to the Daily Mail, and that

… I’ve had enough. I can no longer put up with the sneering, contemptuous attitude of the human rights brigade towards the concept of Parliamentary sovereignty.

What to make of this new consultation? The first point is that the timing is curious. The questions being asked, which I have reproduced below, are hardly revolutionary and it is not clear why it has taken 16 months for the Commission to formulate them. Why were these questions not asked in the first consultation? More importantly, how is the Commission going  to consider the detailed responses properly in the three months it will have left after 30 September 2012 to report?

The substance of the questions is interesting, ranging from the likely legal shape of a Bill of Rights, the significant issues in relation to Northern Ireland, Wales and Scotland, to the potential for new rights, in particular:

  • a right to equality,
  • rights in criminal and civil justice,
  • a right to administrative justice,
  • a right to trial by jury,
  • rights for victims,
  • socio-economic rights,
  • children’s rights and environmental rights

Question 2 is somewhat surprising:

In considering the arguments for and against a UK Bill of Rights, to what extent do you believe that the European Convention on Human Rights should or should not remain incorporated into our domestic law?

This is odd because the Commission’s terms of reference mandates that any Bill of Rights “incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law”. In other words, the terms of reference explicitly exclude this question from the Commission’s remit. In light of that, why bother asking it? Unless the Commission is taking a legalistic point that “enshrined” and “incorporated” mean different things. This would be, as they say in court, a bold submission.

Where does this all leave the Commission? I argued in March that the Commission had to open up, and in particular

It is bizarre that the Commission on a Bill of Rights, which was set up to resolve that debate, is the only remaining “public” space where there is little evidence any kind of passionate argument over human rights going on…. [The Commission] should therefore be seeking out attention in creative ways, including the use of the internet and wide ranging public consultation. Only this will ensure that the Commission’s important work is open, transparent and ultimately successful.

It seems that the Commission has belatedly realised the same, but it is hard to see – unless it obtains a significant extension of time for its work –  how this new consultation can be anything but a cursory, box-ticking exercise. These questions should have been asked a long time ago, and the public properly involved  at a much earlier stage.  I would be happy to be proved wrong on this, but at present this second consultation appears to be little more than window dressing. Given the Commission’s importance to the fundamental rights of the UK public, that is simply not good enough.

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List of Questions in the Consultation Paper

Q1: What do you think would be the advantages or disadvantages of a UK Bill of Rights? Do you think that there are alternatives to either our existing arrangements or to a UK Bill of Rights that would achieve the same benefits? If you think that there are disadvantages to a UK Bill of Rights, do you think that the benefits outweigh them? Whether or not you favour a UK Bill of Rights, do you think that the Human Rights Act ought to be retained or repealed?

Q2: In considering the arguments for and against a UK Bill of Rights, to what extent do you believe that the European Convention on Human Rights should or should not remain incorporated into our domestic law?

Q3: If there were to be a UK Bill of Rights, should it replace or sit alongside the Human Rights Act 1998?

Q4: Should the rights and freedoms in any UK Bill of Rights be expressed in the same or different language from that currently used in the Human Rights Act and the European Convention on Human Rights? If different, in what ways should the rights and freedoms be differently expressed?

Q5: What advantages or disadvantages do you think there would be, if any, if the rights and freedoms in any UK Bill of Rights were expressed in different language from that used in the European Convention on Human Rights and the Human Rights Act 1998?

Q6: Do you think any UK Bill of Rights should include additional rights and, if so, which? Do you have views on the possible wording of such additional rights as you believe should be included in any UK Bill of Rights?

Q7: What in your view would be the advantages, disadvantages or challenges of the inclusion of such additional rights?

Q8: Should any UK Bill of Rights seek to give guidance to our courts on the balance to be struck between qualified and competing Convention rights? If so, in what way?

Q9: Presuming any UK Bill of Rights contained a duty on public authorities similar to that in section 6 of the Human Rights Act 1998, is there a need to amend the definition of ‘public authority’? If so, how?

Q10: Should there be a role for responsibilities in any UK Bill of Rights? If so, in which of the ways set out above might it be included?

Q11: Should the duty on courts to take relevant Strasbourg case law ‘into account’ be maintained or modified? If modified, how and with what aim?

Q12: Should any UK Bill of Rights seek to change the balance currently set out under the Human Rights Act between the courts and Parliament?

Q13: To what extent should current constitutional and political circumstances in Northern Ireland, Scotland, Wales and/or the UK as a whole be a factor in deciding whether (i) to maintain existing arrangements on the protection of human rights in the UK, or (ii) to introduce a UK Bill of Rights in some form?

Q14: What are your views on the possible models outlined in paragraphs 80-81 above for a UK Bill of Rights?

Q15: Do you have any other views on whether, and if so, how any UK Bill of Rights should be formulated to take account of the position in Northern Ireland, Scotland or Wales?


  1. ObiterJ says:

    The use of the word incorporated is problematic. In a very strict legalistic sense, the Convention was probably not actually incorporated into domestic law but the very subtle HRA 1998 certainly created a very tight weave between the convention and domestic law.

    I have always been critical of the make up of this Commission and Duschinsky (whatever one thinks of him politically) should have stayed. He had the privilege of being chosen. I wish that I had been !! Having said this, the Commission very probably has minimal funds and a big public consultation could probably only be achieved at considerable cost. (I don’t know the funding arrangements but I suspect that I am not far wrong).

    The timescale will be tight if they are to report by the end of the year. However, is it really quite so necessary to rush this? Their timescale ought to be extended to about Easter 2013. If there is any pressure to rush things, it must come from within the ranks of Eurosceptic MPs who dislike the whole concept of the British people having any rights!!

    1. Gianni Sonvico says:

      Any chance you could give me a quick word on what the incorporation/enshirnement distinction is all about? HRA language often uses the former, but incorrectly, apparently.

      1. ObiterJ says:

        Some very basic information about “Human Rights” and how they are protected in the UK may be seen at;

        “Human rights” matter to everyone and how they are protected in any country is a measure of that country’s worth. The UK currently has very good protection of those rights which are in the European Convention. However, there are many tensions raised by politicians and elements in the media. It is these tensions – and how they are to be resolved – which underlies the work of the Commission.

  2. David Mead says:


    I think there is, properly, a distinction b/w enshrined and incorporated – though whether or not the Commission is taking this, how knows. it is clear that the HRA does not incorporate the ECHR; if it did do so, the Act wld be much simpler (a la ECA 1972) and there’d have been no need for the interpretation mechanism in s3 or the new public law duty in s.6 – the ECHR wld have been part and parcel of UK law, as if passed by Westminster. This is why the preamble talks of giving “further effect”. There is too surely a difference b/w incorporating our obligations under the ECHR and incorporating the ECHR – similar to the argument put in Hurst before the HoL?

    1. Adam Wagner says:

      Thanks David – I stand corrected! There is clearly a potential difference, although as you say it is not clear whether the BORC is thinking along those lines. I suppose that a truly British Bill of Rights arguably should incorporate the ECHR. Maybe.

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