2. Memorandum submitted by Professor
Francesca Klug
SPEAKER'S
NOTES
1. WHY the Human Rights Act (HRA)?
— Bill of Rights (BOR) Debate.
— (A) Content: Incorporation (plus?)
— (B) Form: Introduced in lieu of a
British Bill of Rights
2. WHAT the HRA can do: legally and constitutionally?
— 3 significant features of a BoR:
"higher law," not bound by ECHR jurisprudence, broad
values.
— Dialogue model: adopted by Australian
Capital Territory and Victoria.
— Individual remedies but research
shows no significant increase in pressure on courts; very few
cases at any level wholly reliant on the HRA.
3. WHAT the HRA cannot do?
— Significant features of parliamentary
democracy retained: statutes cannot be overturned; policy implications
of decisions/2ndry legislation can be reinstated; scope of common
law/j.r. defined
— Commentry sometimes suggests that
the courts have a de facto stike down power under the HRA. Not
true.
— Court and Government agree that there
is no legal and constitutional requirement on government to follow,
or even respond, to a DoI.
— Lord Hope (Shayler) following a DoI
"decisions as to whether ... and how, to amend the offending
legislation, are left to Parliament."
— Jack Straw "There may even be
occasions" where "the Judicial Committee of the House
of Lords could make a declaration that, subsequently, Ministers
propose.
4. HOW the HRA has influenced public policy?
— Home Office Report: Rebalancing
the criminal justice system: The HRA represents a "powerful
framework" to deliver "a commonsense balance between
the rights of individuals and the rights of victims and communities
to be protected against harm" and amending or repealing the
ACT "will not assist in rebalancing the system."
— DCA Review of the Implementation
of the HRA: The Act has had a "positive and beneficial
impact". It has "provided a framework for policy formulation
which leads to better outcomes" by ensuring that the needs
of individuals in an "increasingly diverse population"
are considered by both policy makers and service delivers.
— Effect on public policy does not
need to engage litigation (such as consulting on closure of residential
homes) or can involve policy improvements as a result of cases
(such as revised health and safety guidelines for severely disabled
adults in East Sussex).
— DCA, Age Concern, learning disability
and mental health groups campaign to extend the scope of HRA s6
to include caring services for the public, regardless of which
sector is providing it (see Appendix).
— Probation service/Anthony Rice case.
Andrew Bridges, Chief Inspector of Probation, suggested that "public
protection considerations" were "undermined" by
human rights considerations but it is far from clear how significant,
let alone decisive, a factor these were in this case given "cumulative
failure" including:
(a) Failure to bring forward file from Rice's
previous prison sentence, which revealed that he was a former
offender v girls as well as women.
(b) Parole board given "over-optimistic"
reports of Rice's response to treatment.
(c) Often not clear who had lead responsibility
for the case.
(d) Earlier decision to transfer him to open
prison set in motion momentum towards release.
Sir Duncan Nicholl, Chair of the Parole Board,
has emphasised that they do put public protection first, but the
DCA review suggested there was insufficient appreciation that
HRA engages positive obligations on public authorities to protect
the right to life and security of the wider public. Liberty has
secured an inquest into Naomi Bryant's death citing ECHR Article
2 and have commenced proceedings against the Parole Board, citing
the obligation on the state to protect the right to life under
Article 2. The forthcoming CEHR is under a duty to promote HRA
standards and principles to the public sector and should assist
in clarifying the public protection values it contains.
5. WHETHER a Bill of Rights would resolve
current dilemmas and difficulties?
— Consultation: YouGov Suvey: 62% of
respondents thought it was a good thing to have an Act to protect
everyone's rights but ignorance of HRA profound.
— More specific rights: ECHR doctrine
of a margin of appreciation not dependent on domestic bill of
rights.
— Duties/obligations: values in preamble
or law with remedies? Who sues for what? What does it add to the
criminal/civil law? More litigious and less communal? Who enforces?
Do not confuse with "deserving of rights" concept.
— Bill of Rights plus the HRA: All
46 members of the Council of Europe have incorporated the ECHR
into their law. At least 21 of these have their own bill of rights
or written constitutions enshrining fundamental freedoms.
— Bill of Rights Minus the HRA but
within the ECHR: either interpret to comply or will foul of ECtHR.
— Bill of Rights Minus the HRA and
withdraw from the ECHR: means withdrawal from Council of Europe/EU.
— Entrenchment issues: Is there appetite
to overturn parliamentary sovereignty or is HRA "dialogue
model" likely to be largely replicated in any Bill of Rights?
31 October 2006
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