Commission on a Bill of Rights: second consultation

The Commission on a Bill of Rights established by the Coalition Government in March 2011 has announced a second consultation. The latest consultation document is rather more substantial than the first and asks a series of questions, as follows:

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 Whether or not you favour a UK Bill of Rights, do you think that the Human Rights Act ought to be retained or repealed?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? Some of the rights suggested are:

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

The Commission’s press release says that “those who responded first time around … do not need to repeat what you have already told us” – which might just be wishful thinking, bearing in mind that the consultation questions interlock.  Responses are requested by 30 September 2012.

Comment: The interest in this from a law & religion perspective is twofold. The first is the obvious interest that people of faith (indeed, right-thinking people of all faiths and none) have in the rule of law, good order, equality and justice.

The second is that, as we all know, Article 9 ECHR protects freedom of thought, conscience and religion – and one of the problems in asserting rights under Article 9 (or, indeed, almost any of the others) is the clash of rights and duties. In a nutshell, how do you balance (eg) the objections of a midwife to wearing scrub trousers in the operating theatre rather than scrub dresses – on the grounds that for a woman to wear a man’s clothing is forbidden by the Old Testament – against the hospital authorities’ duty to maintain a sterile environment?

The short answer is, “with difficulty” – and the midwife in question duly lost: see Adewole v Barking, Havering and Redbridge University Hospitals NHS Trust [2011] ET (unreported). And it is those sorts of cases that have led some commentators to argue (unconvincingly, in my opinion) that Article 9 always gets pushed to the bottom of the human rights pile.

(For a rather more robust view than mine, see Adam Wagner on the UK Human Rights Blog.)

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