The Commission on a Bill of Rights has duly reported (and as I began to write this post Michael Pinto-Duschinsky, who resigned from the Commission on the grounds that it was too much in favour of the status quo, was being interviewed on the Radio 4 Today programme in advance of publication).
As widely expected, the Commission’s report is fairly bland: unsurprisingly, given that half its members were nominated by the Conservatives and half by the Liberal Democrats and given also that the two parties are pretty well diametrically opposed on the issue. Only six of the eight Commissioners want a “British Bill of Rights”: Helena Kennedy and Philippe Sands disagree with their colleagues (though that is a higher level of agreement than one might have predicted).
As a general point on which, presumably, the Commissioners all agree, the Report urges HMG to maintain the momentum of the Brighton Declaration and to continue to press for the fundamental reforms of the European Court of Human Rights called for in the Commission’s interim advice (Overview, paragraph 109).
The Report’s premises
The report begins with four preliminary points:
- First, all the Commissioners have interpreted the terms of reference “as clearly presupposing the UK’s continuing adherence to the European Convention on Human Rights and to the European Court of Human Rights as a given”. So the Report does not discuss any option other than continuing adherence to the Convention on the present basis; and the views expressed and the conclusions reached assume that continuation. (But the Commission adds that a minority of members regretted that the terms of reference were limited in that way).
- Secondly, views have differed sharply on the jurisprudence of the European Court of Human Rights: some members consider that the Court has ”departed in a systematic way from the principles of international law, as expressed in the Vienna Convention on the Law of Treaties which they believe ought to govern it” and believe that the Court is exceeding its jurisdiction by adopting interpretations of the Convention that its original signatories either expressly rejected or would not have been willing to accept.
- Thirdly, the Commission has paid very careful attention to everything that has been put to it but has not felt bound by the outcomes of those consultations in terms purely of numerical majorities.
- Fourthly, the Commission does not believe that its conclusions – whether unanimous or not – “can, or should, be a final judgment on the issues which we have been asked to examine. That is not just for the obvious reasons that these are issues which, in the end, can only be decided by Government and Parliament. It is also because, as we set out below, we believe that there is a key question of whether a final decision on a UK Bill of Rights should only be made as part of a wider constitutional debate and public consultation.”.
The Report’s principal conclusions are as follows:
- The differing viewpoints in relation to the human rights debate must be respected and the debate needs to be well-informed “and not distorted by the stereotypes and caricatures which have all too often characterised that debate in recent years” (Our Approach to Our Work, paragraph 8).
- “None of us considers that the idea of a UK Bill of Rights in principle should be finally rejected at this stage. We all consider that, at the least, it is an idea of potential value which deserves further exploration at an appropriate time and in an appropriate way” (Overview, paragraph 67).
- “Any future debate on a UK Bill of Rights must be acutely sensitive to issues of devolution and, in the case of Scotland, to possible independence, and it must involve the devolved administrations” (Overview, paragraph 73).
- Given the sensitivities around the distinctive Northern Ireland Bill of Rights process and its importance to the peace process, the Commission does not wish to interfere in that process itself nor for any of its conclusions to be interpreted or used in such a way as to interfere in the process (Overview, paragraph 75).
- Any move towards creating a UK Bill of Rights would have to be undertaken gradually, with full consultation and with great care to avoid creating divisiveness and disharmony (Overview, paragraph 75).
- A UK Bill of Rights would have to respect the different political and legal traditions within all of the countries of the UK, command public confidence beyond party politics and ideology and require reconsideration of the devolution Acts (which limit the powers of the devolved legislatures and governments expressly by reference to respect for Convention rights) (Overview, paragraph 76).
- Whatever the outcome of the independence referendum in Scotland, there will probably be proposals for changes in the relationship of the nations comprising the United Kingdom. A forum considering that matter would be the most desirable place to consider the promotion of a UK Bill of Rights within the context of a wider constitutional review (Overview, paragraph 77).
- On balance, there is a strong argument in favour of a UK Bill of Rights. David Edward, Edward Faulks, Jonathan Fisher, Martin Howe, Anthony Lester, Leigh Lewis and Anthony Speaight note that the other signatories to the ECHR generally have written constitutions or their own national bills of rights or both. “In the view of these members, this would not greatly matter if there were widespread public acceptance of the legitimacy of our current human rights structures, including of the roles of the Convention and the European Court of Human Rights. But they believe there is not. It is this lack of ‘ownership’ by the public which is, in their view, the most powerful argument for a new constitutional instrument” (Overview, paragraphs 78-80).
- All Commissioners believe that better public education is needed about the present human rights structures and their effect; but the majority does not believe that public perceptions are likely to change substantially in view of the general tenor of media comment. “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.” (Overview, paragraph 82).
- A majority believes that the present position is unstable and that there is a strong argument for a fresh beginning. “The conclusion of a majority of the Commission’s members is accordingly that the case has been made out in principle for a UK Bill of Rights protecting everyone within the jurisdiction of the UK. In accordance with the Commission’s terms of reference this conclusion is put forward on the basis that such a Bill would incorporate and build on all of the UK’s obligations under the European Convention on Human Rights (Overview, paragraph 84).
- The wider constitutional and political dimension is important in considering the way forward: a Bill of Rights must provide no less protection than is contained in the Human Rights Act and the devolution settlements “although some of us believe that it could usefully define more clearly the scope of some rights and adjust the balance between different rights.” (Overview, paragraph 84).
- The majority also believes that a Bill would offer the opportunity to provide greater protection against the possible abuse of power by the state and its agents: “experience to date of the Human Rights Act is that a statute expressly protecting basic rights and freedoms can provide a valuable safeguard against any such abuse of power (Overview, paragraph 85).
- A Bill should have at its core the rights currently in the European Convention on Human Rights including those Protocols which the United Kingdom has accepted – but “written in language which reflected the distinctive history and heritage of the countries within the United Kingdom”. (Overview, paragraph 86).
- Helena Kennedy and Philippe Sands reject the idea of a new UK Bill of Rights and believe that the majority has failed to identify any shortcomings in the Human Rights Act 1998 or its application by the courts. They would prefer to leave open a number of options that could be addressed by a future Constitutional Convention: maintaining the status quo, adopting a new and free-standing Bill of Rights or “moving to new constitutional arrangements that would incorporate and build upon the rights protected by the Human Rights Act” (Overview, paragraph 88(ii)).
- Kennedy and Sands base their views on three grounds:
- The fact of devolution and the upcoming referendum on Scottish independence mean that a premature move to a UK Bill of Rights would be contentious and possibly even dangerous, with unintended consequences: “any Bill of Rights – and any proposals – would have to reflect the changing allocation of powers in the reconfiguration of the United Kingdom” (Overview, paragraph 88(iv)).
- The consultation responses revealed overwhelming support for the Human Rights Act and very considerable opposition, for now at least, to a UK Bill of Rights (Overview, paragraph 88(v)).
- Crucially, they feel that the views expressed by a number of their colleagues on the Commission, to the effect that they would like the United Kingdom to withdraw from the ECHR suggests that there is “the real possibility that some people support a UK Bill of Rights as a path towards withdrawal from the European Convention” (Overview, paragraph 88(vi)).
- Against this background, Kennedy and Sands consider that the case for a UK Bill of Rights has not been made – though they remain open to the idea so long as it carries no risk of decoupling the UK from the Convention. (Overview, paragraph 88(vii)).
Conclusions on related and other issues
- The Commission does not believe that it would be right to reach firm conclusions on whether or not a UK Bill of Rights should contain additional rights to those in the ECHR but it sets out some principles that should be taken into account as part of any wider debate (Overview, paragraphs 90 and 91).
- It does not oppose the concept of additional rights in principle: society has moved on very considerably since the ECHR was drafted (Overview, paragraph 91).
- Among the additional rights which might be most readily considered would be those that relate to people’s fundamental rights to be treated equally irrespective, for example, of innate characteristics such as their gender or ethnic origin (Overview, paragraph 91).
- In respect of socio-economic and environmental rights “a majority of members believe that it is undesirable in principle to open up to decisions of the judiciary issues which, in their view, are better left, to elected legislatures”: a minority disagrees (Overview, paragraph 91).
- The devolved legislatures should be free to legislate within their devolved powers for specific additional rights dealing with particular subject areas to be provided for in their jurisdictions if they so wish (Overview, paragraph 91).
- “We all believe that there are a number of rights relating to our civil and criminal justice system that have come under threat from short term political pressures under successive governments that we would like to see specifically included, and thus protected, if there were to be a UK Bill of Rights” (Overview, paragraph 92).
- For the most part the Commission concludes that the mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act (Overview, paragraph 95).
- Any UK Bill of Rights should contain a similar mechanism to the declaration of incompatibility in section 4 of the current Human Rights Act. (Overview, paragraph 96).
- The growing prevalence of the outsourcing of public functions to private and third sectors means that the current definition of a public authority within the Human Rights Act should be looked at again if a UK Bill of Rights were to be taken forward (Overview, paragraph 97).
Rights and responsibilities
The possibility of coupling “rights” and “responsibilities” has been raised be several commentators, not least by Jack Straw when he was Lord Chancellor and Justice Secretary. Says the Commission:
“[I]t 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. We thus do not believe, if there were to be a UK Bill of Rights, that the rights it contained should be made conditional upon the exercise of responsibilities. We do believe, however, that the formulation to be found in a number of the existing Articles in the European Convention on Human Rights whereby the rights in question are subject to such exceptions as are necessary in a democratic society for, amongst other things, the protection of the rights and freedoms of others, is one which should be emphasised in any UK Bill of Rights. We also believe that a UK Bill of Rights, if there were to be such a Bill, should contain a jurisdiction for a court to award damages but that this course should be discretionary and that in reaching such decisions the courts should be directed to take into account the conduct of the applicant” (Overview, paragraph 100).
“[I]f there were to be a UK Bill of Rights a declaratory (but non-justiciable) provision within it should certainly be considered as a means of attaching importance in a key constitutional instrument to the mutual ties and obligations on which society depends and of assisting its broad acceptance (Overview, paragraph 101). “
Joshua Rozenberg suggests in The Guardian that:
“… the justice secretary Chris Grayling had written off the Commission long before it reported. With the coalition partners no longer trying to pretend that they agree on very much at all, the Conservatives are increasingly thinking about what they are going to put in their election manifesto. A wishy-washy compromise was not going to win them votes”.
In short, it was always doomed to failure (so why do it at all, I wonder) and nothing is going to happen until after the next general election scheduled for May 2015. Rozenberg will obviously not be surprised to see withdrawal from the ECHR (or something very like it) in the Conservative manifesto.
In his preliminary reaction on UKHRB Adam Wagner notes that paragraph 86 of the Report suggests that
“[t]he 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”.
Indeed it does: and just how is it proposed to do that? A wee bit of Gaelic or Welsh, maybe? Chuck in the occasional “timeous” or “outwith”? But ridicule apart, there is an entirely serious point here which the Commission seems to ignore. At least one part of the United Kingdom – Northern Ireland – has two completely conflicting versions of its “distinctive history” and that conflict is responsible for a good deal of the current civil unrest. With great respect to the Commissioners, perhaps we had better not go there.
So that, at least in a preliminary way, is that: support for reform of the ECtHR in line with the Brighton Declaration (on which, presumably, almost every rational person would agree), a certain amount about process, quite a lot (understandably) about devolution, but no radical proposals for change. On the whole, then, parturient montes – but maybe I’d better read the whole thing carefully over Christmas.
[By way of a footnote, perhaps I should say for the avoidance of doubt that I am firmly of the opinion that it would be a grave national embarrassment were the UK to withdraw from the Convention and the jurisdiction of the ECtHR. I also have serious doubts as to whether that would mean very much in practice, given that, at the moment, we intend to remain members of the EU. But on that issue, watch this space…]
In advance of the Report’s publication Adam Wagner at UKHRB produced Commission on a Bill of Rights BINGO. Not a difficult grid to fill…