Ten things you wanted to know about the Bill of Rights Commission’s report but were afraid to ask

On 18 December 2012, the Commission on a Bill of Rights published its report. This post answers ten key questions about the Commission, its report and its implications.

The report is very long, and paradoxically the parts that actually address the controversial questions are the least useful (for reasons that will become apparent if you read on). In contrast, those parts of the report (e.g. chapters 3 to 5) that set out the background to the debate and the existing legal position provide valuable overviews and surveys of other countries’ approaches to human rights protection and incorporation of the European Convention on Human Rights.

(1)  Why was there a Commission on a Bill of Rights?

The Commission on a Bill of Rights was established under the terms of the Coalition Agreement – which, in this area as in many others, sought to paper over divisions of opinion between the Conservatives and the Liberal Democrats by establishing a review. In their 2010 general election manifesto, the Lib Dems undertook to “[e]nsure that everyone has the same protections under the law by protecting the Human Rights Act”. The Conservative Party, meanwhile, said that it would “replace the Human Rights Act with a UK Bill of Rights”.

That somewhat opaque manifesto position inevitably fell to be read against more direct statements by Conservative spokesmen, some of which evidenced strong scepticism about the HRA. For instance, David Cameron said that the HRA should be replaced with a British Bill of Rights in order to “define the core values which give us our identity as a free nation” while facilitating a “hard-nosed defence of security and freedom”. The implication was that the HRA precluded a sufficiently hard-nosed approach in such areas. The further implication was that a domestic Bill of Rights would strike the balance differently between individuals’ rights (particularly those of such “undesirables” as terror suspects and prisoners who deign to demand to vote) and the interests of the “law-abiding majority”.

Ultimately, then, the Commission was formed because the Conservatives and the Liberal Democrats had gone into the 2010 election with irreconcilable policies on human rights. The Liberal Democrats wished to preserve the status quo – that is, the courts’ powers under the HRA to protect rights – while the Conservatives wanted to reduce the extent to which priority is afforded to rights over other interests. The Commission was thus given an impossible task of reconciling the irreconcilable – and it is unsurprising that its report is a damp squib.

(2)  What does the Commission propose?

That question is surprisingly difficult to answer. One of the members of the Commission resigned earlier this year, and those who were left failed to arrive at a consensus. There are therefore majority and minority views contained within the report – and the picture is further complicated by eight additional papers written or co-written by individual members of the Commission, but which do not have the support of all members.

However, a majority of members think that there should be a UK Bill of Rights. In line with the Commission’s terms of reference, the Bill of Rights would build upon the Human Rights Act in that, like the HRA, it would seek to give effect in UK law to the rights contained in the European Convention on Human Rights (plus perhaps some other rights – on which see below). All of this sounds very much like a rebranding exercise – which is essentially what it boils down to. As one blogger has put it, the public is “fed a diet of strident anti-human rights rhetoric by a number of daily newspapers and by certain politicians”. As a result, the HRA (a majority of members of the Commission have concluded) has become such a damaged brand that it is likely to be beyond redemption, making a fresh start necessary. And, says the Commission, a UK Bill of Rights would lead to a greater sense of “ownership”, helping to dispel the myth that human rights are an alien concept imposed upon the UK by a foreign court.

(3)  Doesn’t everyone agree?

No. Two members of the Commission – Helena Kennedy and Phillipe Sands – entered a strong dissent which is set out in some detail in a separate paper (“In Defence of Rights”) annexed to the report and in this article in the London Review of Books. They saw little evidence of an “ownership” problem, arguing that those opposed to the HRA in its present form often based themselves on misinformation peddled by the media and politicians – a problem of public understanding that could be tackled without changing the law. They concluded that the majority had failed to identify substantive problems with the HRA (as distinct from problems of perception) and that there was a risk that support for a Bill of Rights could operate as a Trojan horse for advocating British withdrawal from the ECHR system.

Elaborating upon this point, Kennedy and Sands argued that for some members of the majority, a UK Bill of Rights would be “little more than a re-branding exercise intended to foster a greater  sense  of  ‘ownership’”; but for others it would offer “a  convenient  means to reduce rights, to cast Europe adrift and return to the delusional idyll of an earlier age of sovereign authority unconstrained by obligations set out in international instruments”. Kennedy and Sands were unwilling to be associated with a case for a Bill of Rights that might ultimately weaken the protection of rights by bringing about the UK’s withdrawal from the ECHR.

Before leaving those who dissent from the majority’s conclusion, it is worth drawing attention to the excoriating criticism of the majority’s view in an article in the Guardian by eminent human rights barrister Ben Emmerson. He castigates the majority’s proposals as “lazy and sloppy” ones advocated by people who he says (in the main) lack “recognized competence in human rights law”. “It is like allowing the editors of the Daily Mail and the Sun to draft our constitution,” says Emmerson.

(4)  What rights would be in a UK Bill of Rights?

The Commission’s terms of reference required it to produce proposals that would build upon the HRA: meaning that a commitment to the ECHR had to be taken as a given. (As explained below, this constraint was almost more than some members of the Commission could bear.) But the Commission did consider whether additional rights should be contained in a Bill of Rights. On this point, they found a strong case for a free-standing equality provision (although it is unclear whether this would add anything in substance to the protections already found in the Equality Act 2010). There was not, however, an appetite for including within a Bill of Rights such things as socio-economic rights and environmental rights.

But the Commission’s conclusions on all of these matters were tentative because – in an extraordinary concession – it said that it lacked the expertise and experience needed to make firm recommendations about what rights should be contained in a Bill of Rights. This does not reflect well on the Commission, the way in which it was established, or the processes it followed in arriving at its conclusions.

(5)   How would rights in a UK Bill of Rights be protected?

A Bill of Rights, as conceived by a majority of the Commission, would work in a similar way to the HRA: courts would not be able to strike down Acts of Parliament that were found incompatible with human rights, but would instead be able to issue a non-binding “declaration of incompatibility”. This, thought the Commission, struck a sophisticated and appropriate balance between the sovereignty of Parliament and the effective protection of human rights. However, while this conclusion is a sensible one, its adoption underlines the fact that, at best, a UK Bill of Rights as conceived by the majority of the Commission would amount to a repackaging of the HRA.

In a separate paper annexed to the main report, two members of the Commission – Lord Faulks and Jonathan Fisher – argue that thought should be given to providing the courts with greater powers than they have under the HRA by allowing them to strike down, or refuse to apply, rights-incompatible legislation. However, this proposal does not appear to be born of enthusiasm for judicial protection of human rights. As well as raising the possibility of the UK’s withdrawal from the ECHR (meaning that a UK Bill of Rights would protect an entirely British set of rights – whatever that means), Faulks and Fisher anticipate that judges would use a strike-down power more sparingly than they use their present, lesser power to issue declarations of incompatibility. Paradoxically, then, their intention appears to be to equip courts with powers that they would be reluctant to use. It is also worth noting that Faulks and Fisher’s paper demonstrates the fragility of the coalition of views comprising the majority.

(6)  Would the UK still be part of the ECHR system?

Yes. Or at least, that is the official line of the majority. But their view on this point is expressed in very careful terms: their proposals are put forward “in accordance with their terms of reference … on the basis that [a Bill of Rights] would incorporate and build on all of the UK’s obligations under the ECHR”. Yet, as noted above, two members of the Commission explicitly advocate the possibility not only of decoupling a Bill of Rights from the ECHR, but of withdrawing from the ECHR itself. So while the majority is not formally proposing withdrawal from the ECHR, it is plain that some members of the majority think that a UK Bill of Rights could pave the way for withdrawal.

The majority’s position is further complicated by the fact that they envisage that the rights contained in a UK Bill of Rights may not be expressed in the same language as those contained in the ECHR. At present, the Convention rights are reproduced verbatim in the HRA. But, says the majority of the Commission, there is a “strong case at least in principle for drafting [a UK Bill of Rights] in language reflecting our own heritage and tradition”. This would help, they think, with the (perceived) “ownership” problem: that, at present, people think that the HRA gives effect to “foreign” rights that are insufficiently “British”.

But there are three problems with this position. First, human rights are supposed to be universal: they are rights to which people are entitled by virtue of their humanity, not their nationality. Any re-expression of the rights in “British” language could only be legitimate if it was cosmetic. Second, the UK (unless those arguing for withdrawal prevail) would remain bound by the ECHR, creating the risk that a differently-worded UK Bill of Rights would be out of step with the UK’s international obligations. And, third, the rights in the ECHR are not in any event “foreign” ones. The UK was closely involved in the drafting of the Convention, and the rights, for the most part, reflect values deeply embedded in the legal culture and laws of the countries of the UK.

(7)  Would the UK still be bound by ECtHR judgments?

A large part of the impetus for the formation of the Commission was dissatisfaction on the part of Conservative politicians with judgments of the ECtHR and judgments issued by UK courts implementing the Convention. As is by now well-known, the prospect of implementing the ECtHR’s judgment in Hirst v UK (No 2) holding that (at least some) prisoners have a right to vote makes the Prime Minister feel “physically ill”. So, too, it may be inferred, does the UK Supreme Court’s judgment holding that indefinite inclusion in the sex offenders register, with no prospect of reprieve in the event of rehabilitation, is incompatible with the right to respect for private life. That “offensive’ decision”, which flew “completely in the face of common sense”, prompted the Prime Minister to vow that a Bill of Rights commission would be “established imminently because … it’s about time we started making sure decisions are made in … Parliament rather than in the courts”.

But what difference would a UK Bill of Rights along the lines envisaged by the Commission make? Ultimately, none. The UK – for as long as it remains a party to the ECHR – remains bound in international law by the Convention rights and the Strasbourg Court’s judgments. That is why some members of the Commission, like Faulks and Fisher, openly contemplate withdrawal from the ECHR; only if that step were taken would it be possible to move beyond the current position which the Prime Minister appears to regard as unacceptable.

(8)  What about “responsibilities”?

For some time now, politicians – both Labour and Conservative – have argued that there is too much talk of individuals’ rights, and not enough about their “responsibilities”. A vague notion has emerged that rights should somehow be linked with, or dependent upon, responsibilities: that those who fail to discharge the latter should be unable, or less able, to enforce the former. The Commission on a Bill of Rights has, quite rightly, concluded that this is nonsensical: that is fundamentally misconceives the nature of human rights. “[I]t is in the nature of human rights,” says the Commission “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.”

However, the Commission does not entirely dismiss the relevance of “responsibilities”. First, it concludes that awards of damages for breaches of human rights should be informed by the behaviour of the victim. And, second, it thinks that there may be a case for a declaratory provision in a Bill of Rights “setting out the importance within our society of mutual responsibilities towards one another”.

(9)  Should a Bill of Rights be adopted right now?

The Commission thinks not. This is for two main reasons. First, the Commission recognizes that “any 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”. This is a sensible view. Indeed, the way in which the Commission itself was set up attracted criticism, and it is good that the Commission recognizes that a more far-reaching and inclusive process would be necessary were a Bill of Rights to be adopted. This point is particularly important given that public scepticism about the HRA may in part be attributable to the lack of such a process prior to its enactment.

Second, the majority on the Commission believes that this is not the right time to adopt a Bill of Rights because the constitutional future of the UK is so uncertain. In particular, the Commission does not think that a debate about a UK Bill of Rights could sensibly get underway until the referendum on Scottish independence has been held. The outcome of that referendum – whichever way people vote – is likely to have profound implications for the future development of the UK’s constitution, and it seems sensible that any discussion about a Bill of Rights should form part of the wider conversation that is likely to ensue.

(10)  What next?

It is extremely unlikely that anything will happen before 2015: that is, after the Scottish independence referendum and after the next UK general election. Beyond that, it is very hard to predict what will happen. Much will depend on the outcome of those two democratic processes.

The Bill of Rights Commission’s terms of reference precluded it from formally considering the case for UK withdrawal from the ECHR. But it is clear, as noted above, that some of the members of the Commission think that such a step may be warranted. It is also the case that the possibility of withdrawal is now entering into mainstream political debate to an unprecedented degree. The Lord Chancellor and Justice Secretary, Chris Grayling, wrote in the Telegraph earlier this week: “We believe that with rights come responsibilities. And we believe that the European Court of Human Rights has overstepped its mark, and that things have to change.” It is therefore entirely conceivable – but not yet certain – that the Conservative Party will go into the next election advocating withdrawal from the Convention.

It is time for an open and honest discussion about all of these matters. Those arguing for a UK Bill of Rights need to be clear about what it is they are advocating. A Bill of Rights that simply repackages the HRA? A Bill of Rights that extends and deepens legal protection of rights in the UK? Or one that reduces that protection by decoupling the UK human rights system from that of the ECHR? In particular, those arguing for the latter must be forced to make plain their agenda and to attempt to justify it.

That task will be a hard one. As Phillipe Sands and Helena Kenndy put it in their dissenting paper: “A UK Bill of Rights may seem harmless and even attractive at first sight, but alarm bells should be ringing about motivations. For us, human rights is about working not just within our own country but with other countries to improve the human condition, to engender respect for all individuals, to protect those who are vulnerable, and to create the conditions for the delivery of justice and peace. To remove the glue that holds us together with other nations is dangerous.”

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