The Commission on a Bill of Rights is considering whether the Human Rights Act 1998 should be replaced, or supplemented, by a “British Bill of Rights”. Today, it issued a consultation paper asking for views on what, if anything, should be done. The consultation paper sets out the various possibilities, and is worth reading if you are interested in whether – and, if so, how – courts should protect human rights.
Part of the background to the setting up of the Commission is politicians’ – including the Prime Minister’s – dissatisfaction with the way in which courts, under the Human Rights Act, can exercise substantial powers over the government, in effect limiting the government’s room for manoeuvre. For instance, the government and the courts are currently engaged in a stand-off over whether some prisoners should be given the right to vote – British courts and the European Court of Human Rights having held that UK law, which bans all prisoners from voting, breaches the European Convention on Human Rights. This is all part of a much bigger question, and one that fascinates constitutional lawyers: who should have the final word when it comes to balancing one person’s rights against the (perceived) interests of wider society? Judges or politicians? Courts or Parliament?
If you want to know more about this, have a look at this post which I wrote for the UK Constitutional Law Group blog last year, when the Bill of Rights Commission was first established. In it, I argue that the Commission has few options open to it – because the Human Rights Act simply gives effect in UK law to obligations, under the ECHR, that are binding on the UK in international law. A new, British Bill of Rights would do nothing to relax or remove those obligations.