I always try to respond to consultations in the law, or with a legal flavour. God knows if it does any good (disclaimer – I’m aware it doesn’t – I’m not that arrogant). The big one at the moment is the QASA one (deadline – 9th October) and I’m sharpening up my pencil to put in a full response to that one…
The Commission on a Bill of Rights has its second consultation out at the moment and the deadline is the 30th September. To get in a bit of practice for QASA, I’ve responded to the Bill of Rights one. It’s interesting as, whilst it’s pretty law-related, it’s also intensely political given the Europe-bashing that is in the air at the moment.
One of the disappointing features of the reponses so far is the lack of responders calling for an entrenched Bill of Rights (whether an incorporation of the ECHR or otherwise). To me, having a Bill of Rights that is the same as a usual Act of Parliament is utterly pointless as it will be changed, and a caveat imposed, at the drop of a hat as soon as the first whiff of an adverse headline in the Daily Mail.
Whether you agree with me or not, this is an important issue – it’s the question of how this country is governed. If there is any piece of legislation that has been rammed through Parliament in the last ten years that you don’t approve of, or think could have been improved, then this affects you. A proper Bill of Rights could have put the brakes on it.
Anyhoo, here’s my (pretty short) response – most of what I would say is covered by others in more detail and persuasiveness. Feel free to copy any of it you agree with and laugh at anything you don’t…
Response to the questions
Q.1 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 Whether or not you favour a UK Bill of Rights, do you think that the Human Rights Act ought to be retained or repealed?
A – This country is almost unique in the world in having no entrenched Bill of Rights and I would start from the premise that such a document is essential to any adult democracy. The European Convention (ECHR), as implemented by the Human Rights Act (HRA), is an excellent start, but there is much to be said for complementing this with our ‘own’ Bill of Rights (Bill). The ECHR should be seen as a starting point for debate. It is a floor not a ceiling.
There is an argument that having a separate British Bill of Rights would undermine the HRA, but I would argue that having a Bill that included, and built on, the HRA would allow the country to ‘own’ the HRA and could have the effect of depoliticising the issue (or at least stop it from being an issue around UK’s relationship with Europe).
As a Bill of Rights would replicate the rights in the ECHR as a minimum, there is no need to keep the HRA.
Q.2 –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?
A – See above. The Commission is predicated on considering a Bill that incorporates and builds on the ECHR. Whatever happens, there should be no question of ‘unincorporating’ the ECHR. Unless the UK withdrew from the ECHR (and the practical effect of that would be having to withdraw from the EU) the HRA (or equivalent) provides a valuable filter mechanism in domestic law. Further, none of the rights contained in the ECHR can be considered to be controversial.
Q. 3 – If there were to be a UK Bill of Rights, should it replace or sit alongside the Human Rights Act 1998?
A – As a Bill would incorporate the rights in the ECHR, it should be possible to replace the HRA. There are potential issues having two constitutional documents running side by side if the HRA remained in place and it is preferable to have it in one Bill.
Q.4 – 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?
A – It would seem to me that the best way would be to have the rights in the ECHR listed first in any Bill, followed by enumerated rights that build on those. It must be clear that any rights contained in the latter part are in addition to the protections in the ECHR and not in conflict with them.
Q.5 – 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?
A – See Q.2
Q.6 – 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?
A – If the Bill does not include any more rights than the ECHR, then there is no point in having one. A mere restatement of the ECHR would only lead to expense and confusion.
There are two issues: firstly whether the Bill should elaborate on the Convention rights or consider adding new categories of rights.
I would be in favour of enumerating certain rights that are not explicitly covered in the Convention, for example by adding trial by jury to complement Art 6. The question of whether other rights should be included raises complicated issues and should perhaps be the subject of a separate consultation.
Q.7 – What in your view would be the advantages, disadvantages or challenges of the inclusion of such additional rights?
A – The advantages would be firstly that the Bill would then have a more ‘British’ feel, and secondly (and more importantly), that the people of Britain would have greater protection. It is hard to see any disadvantages in theory, but the challenge will be the agreement as to which rights should be included.
Q.8 – 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?
A – In principle it seems hard to see how such guidance can sensibly be given as every case is fact specific. s12 could be considered to be relatively meaningless on a practical level.
Q.9 – 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 mend the definition of ‘public authority’? If so, how?
A – It is difficult to see how this can be legislated for to provide for all eventualities. There does not appear to currently be a need for an amendment.
Q.10 – 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?
A – It is hard to see how the concept of responsibilities can be introduced into a Bill of Rights in any meaningful way. Parliament legislates for the responsibilities that individuals have and this is entirely separate to the rights that an individual has.
Even in qualified rights, to introduce ideas of responsibilities is merely a sop to those critical of the whole notion of rights.
Q.11 – Should the duty on courts to take relevant Strasbourg case law ‘into account’ be maintained or modified? If modified, how and with what aim?
A – Unless the proposal is to make ECHR judgements binding on UK Courts, there is no need to amend the test.
Q.12 – Should any UK Bill of Rights seek to change the balance currently set out under the Human Rights Act between the courts and Parliament?
A – Yes. The Bill must not be capable of amendment by a straight, whipped, vote of Parliament, but by some form of process that requires greater support than that.
Further, any Bill of Rights must impact on the Supremacy of Parliament and make Parliament subject to the Bill. The Courts must have the power to strike down Act of Parliament that are inconsistent with the Bill. Anything short of that makes the Bill not a Bill of Rights, but a statement of values that has no enforceable power which is nice, but pointless.
Q.13 – 15 – (13) 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?
(14) What are your views on the possible models outlined in paragraphs 80-81 above for a UK Bill of Rights?
(15) 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?
A – This is a complicated issue. Given the ECHR is binding on the whole of the UK, any Bill should be applicable in all jurisdictions, but that allows the devolved Parliament and Assemblies to add additional rights. It is difficult to comment further without specific proposals as to which additional rights are to be considered.