What lies beneath the Commission on a Bill of Rights report – Amy Williams

20 December 2012 by

COMBARDon’t be fooled! We have been led to believe there was a two-way split on the government-appointed Bill of Rights Commission, which published its report on Tuesday, but the split was at least three-way. The Commissioners tell us that ‘it [was] not always easy to disentangle in the opinions expressed to [them] what are tactical positions rather than fundamental beliefs’. The same must surely be said of the report’s seven ‘majority’ authors.

The two dissenters who did not sign up to the majority’s conclusions – Baroness Kennedy of the Shaws QC and Philippe Sands QC – are clear: the time is not ripe for a new UK Bill of Rights. This is because (a) the devolution arrangements in the UK, in which the HRA is successfully embedded, are potentially about to undergo significant change (post-Scottish referendum) (b) the majority of respondents  to the Commission’s consultation support the HRA as the UK’s Bill of Rights which incorporates the ECHR rights (but not the European Court case law) into domestic law and (c) for some Commissioners, a Bill of Rights would be a means to decoupling the connection between the United Kingdom and the European Convention on Human Rights (ECHR). In sum, “the case for a UK bill of rights has not been made” and the arguments against such a Bill “remain far more persuasive, at least for now.”

But what, then, of their charge against the remaining seven commissioners who insist that there is a ‘strong argument’ for a new UK Bill of Rights?  Kennedy and Sands write, “It is impossible to speak of principle when the true purport is not being addressed explicitly and would include, for some at least, a reduction of rights.”

A clear divide

Indeed, the ‘majority view’ expressed in the report masks a clear divide between those who support an ‘ECHR plus’ UK Bill of Rights and those whose commitment to our obligations under the ECHR appears little more than a cursory nod to the Commission’s terms of reference (which require a UK Bill of Rights to ‘incorporate and build on all our obligations under the ECHR’).

The paper entitled ‘Unfinished Business’ authored by Jonathan Fisher QC and Lord Faulks QC (one of eight individual papers contained within the report) confirms the suspicions of the dissenters. It advocates withdrawal from the Convention unless there is further reform of the European Court of Human Rights (which appears to mean unless there is significantly less ‘interference’ than the eight cases in which the UK was found in breach of the ECHR in 2011) or unless the UK renegotiates its membership of the Convention to exit from the Court (made impossible by Protocol 11). The tenor of the paper makes clear that Fisher and Faulks envisage withdrawal as a real possibility.

In another individual paper, Martin Howe QC offers a draft UK Bill of Rights, containing clauses that are, on the face of it, wholly incompatible with the ECHR. Howe proposes different levels of rights protection for different categories of person (UK citizen, EU and non-EU citizens) – so much for the ‘everyone’ to whom the rights in the ECHR apply. And his clause on the justification for restricting rights involves taking into account the fulfillment of individual responsibilities, including “for providing as permitted by his or her abilities and circumstances for self and family.” Failing to provide for your family is not a recognised ground for restricting universal human rights, notwithstanding the restrictions on certain rights permitted in the interests of factors like national security or the economic well-being of the country.

The third, albeit still only loosely grouped category of Commissioners is arguably the least coherent. This group supports a new UK Bill of Rights that provides the same level of rights protection as under the ECHR. (Note, however, Anthony Speaight QC’s proposal for a return to the pre-HRA position where rights compatibility review of legislation only kicks in when the meaning of a statute is unclear, which would unquestionably produce a weaker bill of rights than the one we have presently in the HRA, at p. 259).

This group signs up to the conclusion that a UK Bill of Rights is necessary to address a lack of ‘public acceptance of the legitimacy of our current human rights structures’, which are viewed as ‘European rather than British’ (note, not UK, para [80]). The case has been made out in principle, in their view, for a Bill of Rights protecting everyone within the jurisdiction of the UK (see Ryan Goss’s excellent challenge to that assertion here). Whether or not the case has been made out, the Commissioners give no indication as to how a document which would produce the same results as the HRA – since it would continue to provide the same level of protection – but which is re-branded as ‘British’ will gain the affection and support of all those who object to the protection of unpopular or marginalised groups under the current regime.

Either unpopular groups will be directly or indirectly excluded from the scope of such a Bill (as modelled by Howe) or opponents of the HRA who object to its universal application will become very disillusioned with a government who promised them something new but has given them more of the same – only now a British judge would be able to rule that a Constitutional rather than a Convention right has been breached. Would that change of obscure term really be enough to satisfy the Daily Mail? For this reason alone, it is difficult to envisage any future leader exposing him or herself to such a risk, least of all the current Prime Minister who has led the call for HRA repeal.

A Bill of Rights that meets the aspirations of the anti-ECHR faction, now freed of the shackles of the Commission’s terms of reference, is therefore much more likely to obtain Mr Cameron’s approval than one that meets the hopes of this third group. The minority Commissioners were right to expose this and warn us what lies behind proposals for a simple ‘rebranding exercise’.

 Amy Williams is research assistant on the Human Rights Futures Project at the London School of Economics. She conducted research for the Commission on a Bill of Rights.

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  1. Miguel Cubells says:

    To emphasise my previous point in respect of the State having an adverse desire to provide Human Rights to the general populous, one only needs to take account of the State’s Equality and Human Rights Commission (EHRC). This organisation in the form of a token gesture only caters for the Human Rights of minority groups in our society i.e. if a member of the majority general public approaches the EHRC with a genuine Human Rights issue you are informed by them that because you are in essence part of the general majority there is no redress for you via their organisation, of which in itself is a clear breach of Article 14 (ECHR – discrimination). Human Rights apply to all in our society not just token minorities. As with FOIA/DPA legislation the State has now developed a realisation that the power of the HRA/ECHR in the hands of the general public could open them up impropriety. The executive have a dangerous desire to kerb the public/democratic power embedded in the convention.

  2. John D says:

    The cost question is highly relevant as I suspect this whole exercise has been an utter waste of time and money. But then how could it be otherwise if you view the whole exercise through a political prism? The truth is that this whole exercise has a been a sop to the anti-European MPs, Peers and media in this country, which David Cameron has attempted to placate with this unnecessary review of ECHR Law. Any reforms would have to take place the other side of a general election (after any possible Scottish independence ballot) so the very earliest anyone would really start to look at any of this would be 2015 or 2016.
    In the unlikely event of a Conservative-UKIP coalition government, we might see complete UK withdrawal from the EU, which would provide some sort of basis for also leaving the ECHR. In this event, a completely new British Bill of Human Rights would become necessary – but this is all highly unlikely.

  3. Anne Palmer says:

    If Mr Cameron is to committed to fighting the 2015 election on anti-Europe ticket why on earth is he Hell Bent on putting all EU Legislation through at
    break neck speed? The EU’s Localism Act, Elected Mayors, Elected Police Commissioners, same sex Marriage, HS2-just one part of the EU’s TEN-T Policy? And exactly WHY go ahead with a NEW Bill of Rights, if he is so sure to win the next General election to come out of the European Union, when out of the EU, we can keep our own Bill of Rights and Magna Carta? Is it the Laws of Treason that is preventing them from getting rid of our British Constitution we have had for hundreds of years, in fact the people of this Country have fought two World Wars to keep them. Perhaps they have no understanding of the deep open anger that the people feel at Government’s destruction of the Constitution their parents once fought to keep so that this Country could be free from foreign rule.

    Mr Cameron knows, as do all those that took part in “considering a New Bill of RIGHTS” that not one bit of it can over-ride the European Convention on Human Rights. If the EU adopts or joins the ECHR, d’you think we could remove the UK from it if we are still in the EU? However, if the new Bill of Rights is put to the people through a referendum, you can bet your bottom dollar (come what may) that the outcome will be a YES to accept which may well be seen to over-ride the people’s long standing Declaration and Bill of Rights 1688/9 along with Magna Carta, for we know no British Parliament can get rid of them, but by allegedly voting for the NEW it may be seen that the people have destroyed their own long standing Common Law Constitution rather than the Government which according to R. V. Thistlewood 1820 “To destroy the Constitution is treason”. Why bring a NEW Bill of Rights out NOW for if the British Government is really Sovereign, all it has to do is withdraw from the European Court of Human Rights and have nothing more to do with it. No referendum required-job done.

    However, it should be remembered that the three major Political Parties all want to remain in the European Union-forever. They even think the people will continue to vote and pay for two full Houses of Parliament as well as the EU.

  4. Ma says:

    Agree with Obiter J.

    How much did this cost, by the way???

  5. Miguel Cubells says:

    The only reason the executive (Mr Cameron & Mr Grayling) wants to reduce the power of the HRA & ECHR is because a growing number of the general population are now starting to realising how powerful this act is in protecting the general public from State abuse. Unpopular minority elements of our society have utiliesd the power of such an act to the detriment of the State. The State is clearly concerned that the rest of us (factory works & Co) are now also starting to realise that State abuse of its general population can be addressed via the HRA & ECtHR. State abuse of its general population is already unacceptable, your God only knows how they will behave if the democratic powers of the HRA & ECHR are reduced by the State.

    P.S. Every tried to have an Article 2 death effectively investigated by the State, try it sometime and experience the State abuse. Mr Cameron and Mr Grayling must have now realised that the general population can now compare such Article 2 situations etc with what is implied in domestic and Stransbourg jurisprudence to supposedly happen in respect of State behaviour?

    It is dangerous in respect of the general population to reduce the power of the HRA & ECHR to appease the perception displayed by the sensationilst elements of the media, and underhanded intentions of Mr Cameron & Co.

    What’s your take on the above Amy = yes, no or ????

    1. James Lawson says:

      I would respectfully dissent from your first paragraph. The HRA is, in reality, a paradigm of what the British do best. They will create a system of ‘rights’ then make them difficult, if not impossible to vindicate and make the remedies worthless. The HRA did not protect the freedom from incarceration of the Belmarsh detainees in A & Ors v Home Secretary [2004] UKHL 56 who found s23 Anti Terrorism Crime and Security Act 2001 incompatible with convention rights under section 4(2) of the 1998 Act. They were not released. They remained locked up because of the operation of section 3(2)(c) which allows the impugned law to continue in operation until expressly repealed while the government created what was then the Protection of Terrorism Act 2005 to continue to deprive them of their liberty. In other words, they got the ‘booby prize’, a ‘non-remedy’ and brand new law just for people like them!

      Moreover, the Act does not protect the individual from an ‘elected Monarch’ in Downing Street whose party dominates the legislature. We saw this with the Communications Act 2003 which is the only time any government were ‘up front’ and honest in their declaration under section 19 in stating that the Bill they introduced was incompatible with Article 10 as the defendants in R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15 found out to their cost when Lord Bingham waxed lyrical about the vital importance of freedom of political expression to a functioning democracy, thew out their application for a declaration of incompatibility because ‘Parliament’ had expressly stated that they were legislating contrary to Convention Rights.

      In the 12 years the Act has been in force, there have been 27 declaration of incompatibility and only 19 occasions on which Parliament has amended legislation accordingly. A pretty dismal record when viewed objectively.

      Grayling and others like him form their ‘opinions’ by reading the Daily Mail in opposition and discover the truth when in power. The truth is that the HRA’s true power lies in the public perception of it as the vehicle upon which rights may be protected. In other words, if you actually believe you have rights, then that is as good as the real thing!

      1. Miguel Cubells says:

        Dear Mr Lawson, I take your points, however the HRA/ECHR protected the freedom from incarceration of Abu Qatada, of which a minority element of our society utilised the power of these acts. The point I make being that the real intent of the executive in tinkering with the Act is born out of fear that the general majority may learn how to utilise the Act/Convention in a way that minority elements are doing. The intent of the executive is to reduce the general populous’ options in resepct of addresseing abuse by them.

        One also needs to take into account the shocking events of Mid Staffs NHS FT, of which due to the power of the HRA some £1 million was paid out by the State in respect of Article 2 & 3 breaches. These are the types of cases where members of the majority general public utilised the Act to the detriment of the State, it is fear of more of the same that lies behind Mr Cameron and Mr Grayling’s true intentions.

        The public are now starting to wise up in respect of State abuses by the executive can be challenged via the Act/Convention. It is early days for the majority in this regard, however we are now starting to appreciate the game.

        We lost a recent substantive JR at the CtoA of which showed in our opinion that there are issues in resepct of the majority gaining redress via the UK Courts on HR grounds, however where there is a will there is a way of which in the future should see more successful utilisation in this regard. JR appears not to be the only legal route address HR matters. Let us not forget that the ECtHR if all else fails is also an option. The general majority are also now wising up in respect of this route too. It appears that the State is also now wising up in resepct of public enlightenment. Granted there isn’t many of us breaking through at present, however knowledge gained through experience will provide the answer.

        Also the jurisprudence you mention are only domestic i.e. one wonders what may have transpired if these cases had been taken to the ECtHR.

        P.S. 19 out of 27 = 70.37% of which ain’t too bad in my reconing?



  6. ObiterJ says:

    Yes, it is a far more nuanced report than most commentaries have suggested – very probably including my own. However, most commentators have probably just set out their initial reactions and are leaving the detailed analysis until after they have read the report fully – after too much turkey etc.

    I entirely fail to see how Martin Howe QC’s idea is lawful. It would utterly fail if the UK were still in the Convention system.

    However one looks at this, politicians like to take simplistic approaches. A majority said a UK Bill is OK. They will therefore push for that when, in reality, it is not needed at all.

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