The Bill of Rights Commission report: a modest proposal
18 December 2012
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.
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.
- Insofar as there seven of nine recommend a bill of rights, they do so essentially as a rebranding exercise. The argument is that things have got so bad with the Human Rights Act that we might as well start over: “a majority of members believe that the present position is unlikely to be a stable one. Some of the voices both for and against the current structures are now so strident, and public debate so polarised, that there is a strong argument for a fresh beginning.”  Here is a particularly depressing paragraph which bears repeating in full:
All of us believe that there is indeed a role for better public education and understanding of the present human rights structures and their effect… but the majority of members find it hard to persuade themselves that public perceptions are likely to change in any substantial way as a result, particularly given the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media. It follows that most members believe that more of the same is likely to lead simply to more of the same; a highly polarised division of views between those for and against our current human rights structures.
- Devolution casts a long shadow over this report, as has been predicted by many including on this blog. The potential and actual de-coupling of Northern Ireland and Scotland from the United Kingdom is important and not much can be done before things are at least clearer in terms of the Scottish referendum: see [43-44]. This is a good reason for delay, it seems to me.
- On the European Court of Human Rights, the Commission wasn’t really asked to think about the court except by way of expressing an early view on reform prior to the largely successful (in the Commission’s view as well as mine) Brighton Conference. They all agree the court needs reforming, some of them think more urgent action is needed to stop its excesses: see the side-report mentioned above.
- Another reason for delaying any action on a bill of rights is that further public consultation would be needed on any future bill: the ” process of moving towards the creation of a UK Bill of Rights would have to be undertaken gradually, with full consultation, and with great care to avoid creating divisiveness and disharmony.” Good point, but didn’t the Commission undertake two consultations? See my post about openness.
- Importantly, the Commission does not recommend the introduction of ‘responsibilities’ into a bill of rights: “it is in the nature of human rights that they exist for all human beings equally without reference to whether they are ‘deserving’ or not and that they cannot be made directly contingent on the behaviour of the individuals concerned.” . They do think that the existing qualified rights in the European Convention on Human Rights, which subject to exceptions such as “necessary in a democratic society”, already impose an element of responsibility and could be emphasised.
- The language of the bill of rights should reflect “the distinctive history and heritage of the countries within the United Kingdom.” Whatever that means . At least they haven’t recommended that the language should be “magnificent in tone” as UKIP suggested in its consultation response.
- Also importantly, the Commission has not recommended “socio economic” or environmental rights being added to a bill of rights – see : “All other things being equal a majority of members believe that such choices are better made by Parliaments rather than judges.”
- To the extent that the Commission recommends any additional rights, it recommends a “right to equality and non-discrimination currently enshrined in the Equality Act 2010”. The effect of this would be very minimal indeed, as it would effectively just bring the already existing Equality Act within the larger umbrella of a bill of rights .
- The Commission proposes tinkering with the Human Rights Act, for example broadening the definition of ‘public authority’ (only public authorities can be sued under the Act) in order to allow for the rise of private sector organisations providing public services.
Well, that’s that then. A very modest proposal. This is not surprising; the Commission was limited to proposing a Bill of Rights that “incorporates and builds on all our obligations under the European Convention on Human Rights“. In other words, the could do very little at all except fiddle with our already existing, and actually quite elegant, Human Rights Act 1998.
The impression I get from the document is that leaving aside all of the disagreements between the member (and there are many) they largely viewed the Human Rights Act as what it is: a clever way of incorporating explicit rights into our legal system whilst maintaining Parliamentary sovereignty. They have recommended some tweaking of that Act, and potentially (although not for a while, thanks) rebranding it largely so as to sell it to the public as opposed to making any substantive changes. See my Ford Fiesta analogy.
The position on the European Court of Human Rights is different and really is for another day. It seems clear from Chris Grayling’s recent comments and his Telegraph article today that the Conservatives may include separation from Strasbourg as a manifesto pledge for the next election.
That may be popular but it seems to me a stance based more on anti-European sentiment than legal analysis. Thanks to the Human Rights Act, the European Court of Human Rights now issues only a tiny fraction of human rights judgments which effect our legal system (last year there were nine against the UK, as compared to 100s of human rights judgments in our domestic courts). That was the point of the Act. The court is not particularly barmy, which surely they would have to be in order to justify breaking free of the Council of Europe, which does a huge amount of good across Europe.
Leaving Europe aside, the Commission on a Bill of Rights has not been a complete waste of time. It has produced an interesting health check of the human rights system as it is functioning today, warts and all. It is a shame that the Commission couldn’t agree on many things (I wouldn’t have liked to have been there when they were deciding what biscuits to buy for meetings) but they were structurally hampered by the initial, Usual Suspects-style artificiality of the exercise. In the final analysis, this was a group of advocates with fiercely divergent views, but without a judge to decide who wins.
Where do we go from here? Nowhere very fast. The Commission has recommended that before anything is done on a bill of rights there should be further consultation, which will presumably need to be analysed by a different (hopefully less divisive) group.
The most positive thing which could result from this Commission is some fresh thinking on how to build rights into our constitutional system, and involve the public from the start. That rather modest aim may ultimately be the best way of protecting those rights from more political manoeuvring of the type which led to the creation of this rather unhappy Commission.
Sign up to free human rights updates by email, Facebook, Twitter or RSS