Joint Committee on Human Rights Twenty-Ninth Report

1  Introduction


1.  There currently exists an unusual cross-party consensus about the need for a "British Bill of Rights". In its Governance of Britain Green Paper (July 2007)[1] and the Prime Minister's statement to the House of Commons on 3 July 2007,[2] the Government committed itself to exploring the possibility of a British Bill of Rights as part of a wider programme of constitutional reform.[3] The Conservative Party had previously announced that it proposes to replace the Human Rights Act 1998 (HRA) with a British Bill of Rights whilst remaining a party to the European Convention on Human Rights (ECHR) and has appointed a Commission of experts to consider how to achieve this.[4] The Liberal Democrats have reiterated their longstanding commitment to a Bill of Rights as part of a written constitution for the UK.[5]

2.  The consensus across the political parties appears to reflect a wider consensus amongst the public. In the 2006 Joseph Rowntree "State of the Nation" survey of opinion, 77% of those polled agreed that Britain needs a Bill of Rights to protect the liberty of the individual (51% agreeing strongly with that proposition).[6]

3.  There is considerably less consensus, however, about the reasons why a British Bill of Rights is needed, what rights should be contained in such a Bill of Rights, its relationship with existing human rights protections such as the HRA and how it should affect, if at all, the existing relationships between Parliament, the executive and the courts.

Our inquiry

4.  It was in the belief that these questions seemed likely to dominate the debates about human rights in the UK over the next year or so that we decided, in May 2007, to inquire into them. We considered one of the purposes of our inquiry as being to ascertain the extent of consensus on the major issues, including amongst ourselves as a cross-party Committee of both Lords and Commons members with no Government majority, so as to inform public and parliamentary debate on the issue, and to make recommendations about the future direction of the debate about a Bill of Rights in the light of those findings.

5.  We issued a call for evidence on 22 May 2007, inviting submissions by 31 August 2007. We asked for submissions to focus on four principal questions:

6.  We received 31 memoranda, of which 12 were from individuals and 19 from organisations. The written evidence we received is published in Volume II of this Report.

7.  We held six formal evidence sessions, including one in Scotland:

  • 3 December 2007 from Professors Klug and Fredman and Martin Howe QC; and Liberty, Justice and the British Institute of Human Rights (introduction to the issues);
  • 14 January 2008 from Children's Rights Alliance for England, the Trades Union Congress and Unite the Union (on the inclusion of rights for children, unions and economic and social rights more generally);
  • 28 January 2008 from Professors Sidoti and Dickson (on Northern Ireland); and Professor Smith (on methods of engaging with the public);
  • 3 March 2008 from Baroness Hale and Lord Justice Maurice Kay; and Professor Vernon Bogdanor, Rt Hon Kenneth Clarke MP and Henry Porter (on the role of judges and constitutional reform);
  • 10 March 2008 from Kenny MacAskill MSP, Cabinet Secretary for Justice in the Scottish Government; Law Society of Scotland (on the effect of devolution); and
  • 21 May 2008 from Rt Hon Jack Straw MP, the Justice Secretary, and Michael Wills MP, the Human Rights Minister.

8.  We also had informal meetings with Justice Kate O'Regan of the South African Constitutional Court, the Northern Ireland Human Rights Commission, and the Scottish Human Rights Commission.

9.  From 19-23 November 2007, we visited South Africa to study that country's experience with a constitutional Bill of Rights since 1996. We met a wide range of people with first hand experience of the South African Bill of Rights: judges of the Constitutional Court and lower courts, Government Ministers, parliamentarians, human rights NGOs, leaders of civil society, members of the Human Rights Commission, legal practitioners, journalists and academics in both law and political science. We found the visit extremely instructive and we refer to what we heard and observed throughout this Report.

10.  We are grateful to all those who have assisted with our inquiry.

11.  For reasons which we make clear later in this Report, we refer throughout to a "UK Bill of Rights" or, our own proposal, a "UK Bill of Rights and Freedoms", rather than a British Bill of Rights.[7]

The purpose of our Report

12.  Our Report is designed to stimulate debate about a range of issues concerned with a UK Bill of Rights. We emphasise that, although we make certain recommendations and proposals, and express preferences for some options over others, all of the questions that we consider are matters that ultimately should be decided after a thorough and genuine consultation. If there is to be a UK Bill of Rights, questions such as: the form it takes; the human rights it protects; the way in which it is enforced; who it binds; must be subject to proper public deliberation and, eventually, decision. To have any prospect of taking root and flourishing in popular consciousness, a Bill of Rights must emerge from an inclusive and participative process of public discussion.

13.  We have included as an Annex to our Report an outline of a possible UK Bill of Rights and Freedoms, which is meant to be indicative of the sorts of provision which could be made in a UK Bill of Rights, reflecting our recommendations and proposals where possible.[8] We have been encouraged to produce an outline Bill of Rights and Freedoms by the positive response in both Houses to our recent practice of proposing amendments to Bills to give effect to our recommendations in our legislative scrutiny work. We hope that the existence of an outline text will provide a focal point for future discussions on what are often perceived to be somewhat abstract and technical issues. We also hope it will demystify to some extent issues which are often made more complicated than they really are. Like the HRA itself, a UK Bill of Rights could be a relatively straightforward document.

The historical context

14.  We think it is important at the outset to refer briefly to the historical context in which today's debate takes place, because this throws some light on current disagreements about what Bills of Rights are for.

15.  The focus of the classic Bills of Rights, from Magna Carta in 1215 to those of the 17th and 18th centuries (the English Bill of Rights of 1689, the French Declaration of the Rights of Man and the Citizen of 1789 and the American Bill of Rights of 1791), was the protection of the individual's liberty against the intrusive and interfering power of the overweening state. Liberty was conceived as negative liberty, the absence of restraint. It remains the view of many today that the protection of human rights by Bills of Rights should be confined to this set of broadly Enlightenment values, and that this is the only legitimate purpose of a Bill of Rights.

16.  In the second half of the 20th century, however, conceptions of human rights began to change. In 1941, US President Franklin D. Roosevelt made his famous "Four Freedoms" speech in his State of the Union address to Congress, at the height of the Second World War:

In the future days, which we seek to make secure, we look forward to a world founded upon four essential freedoms.

The first is freedom of speech and expression …

The second is freedom of every person to worship God in his own way …

The third is freedom from want …

The fourth is freedom from fear …[9]

17.  The inclusion of freedom from want and freedom from fear in this list of the four essential freedoms, from the mouth of the President of the country with the most cited of the classical Bills of Rights, was a significant moment in the history of human rights protection. It redefined freedom to include not merely absence of restraint but absence of want and fear. These freedoms went beyond the traditional American constitutional values protected in the American Bill of Rights to embrace security as a foundational value, including economic security.

18.  In 1944 President Roosevelt made his equally famous "Second Bill of Rights" speech, in which he suggested that America had now effectively accepted a second Bill of Rights, embracing freedom from want and freedom from fear:

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. "Necessitous men are not free men." People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed.

Among these are:

  • The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;
  • The right to earn enough to provide adequate food and clothing and recreation;
  • The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
  • The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
  • The right of every family to a decent home;
  • The right to adequate medical care and the opportunity to achieve and enjoy good health;
  • The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
  • The right to a good education.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being. [10]

19.  Roosevelt's "Four Freedoms" were explicitly incorporated into the preamble to the Universal Declaration of Human Rights (UDHR):

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.[11]

20.  The UDHR itself was given binding legal force in the two subsequent UN treaties, the International Covenant on Civil and Political Rights ("the ICCPR") and the International Covenant on Economic, Social and Cultural Rights ("the ICESCR"), which, together with the UDHR, comprise the so-called "International Bill of Rights".

21.  Today one of the central questions for any parliamentary democracy considering whether to adopt a Bill of Rights is whether that Bill of Rights should seek to reflect, so far as possible, both of these human rights traditions in the international human rights instruments. The response to our inquiry has certainly demonstrated that there is considerable support in the UK for both of these conceptions of the purpose of bills of rights. In our inquiry we have sought to explore the scope for agreement, across the political divide, that a Bill of Rights in a modern parliamentary democracy should attempt to combine these two traditions, by including both strong protection for traditional civil liberties as well as appropriately recognising the fundamental importance of the more recently recognised economic and social rights, such as the right to education and health.

How much consensus?

22.  The contentious nature of a Bill of Rights also leads us to consider how much consensus is required in order for constitutional change of this kind to be successful. The HRA was passed with cross-party support. The Justice Secretary, who, as Home Secretary at the time, was responsible for piloting the Human Rights Bill through the House of Commons, told us that he was "anxious to achieve a situation where we had a consensus so far as was possible between the parties".[12] We welcome his recognition that:

Whilst constitutional changes may well be contentious … they are more likely to endure if you achieve a broad measure of agreement and should not be partisan tools for any one party.[13]

23.  The Human Rights Minister showed the same commitment to proceeding by consensus as far as possible: "Any constitutional change as far as possible ought to be consensual in basis."[14]

24.  The Justice Secretary elaborated a little on what he meant by consensus:

By consensus on this I do not mean unanimity any more than there was unanimity over the Human Rights Act, but we moved by a careful process of deliberation to a much broader consensus than we had started with.[15]

25.  We agree with those who say that a high degree of consensus is desirable. We do not, however, think that there need be unanimity about every aspect of a Bill of Rights. There needs to be sufficient consensus across party lines to make the process of adopting a Bill of Rights a truly constitutional event, rather than a party political one. In this Report we seek to identify those areas on which we detect a sufficient consensus to proceed, however cautiously, to the next stage of consulting about the detail of a Bill of Rights. We hope that our outline of a Bill of Rights and Freedoms will not only help to focus the discussion but also make it easier to identify the areas in which the necessary degree of consensus already exists.

1   The Governance of Britain, Cm 7170 (July 2007) (hereafter "Governance of Britain"). Back

2   Prime Minister's statement on constitutional reform, HC Deb 3 July 2007 col. 815 at col. 819. Back

3   The Prime Minister's interest in the issue was foreshadowed in a number of speeches before he became Prime Minister: see e.g. speech of Gordon Brown, Chancellor of the Exchequer, to the Fabian Society, "The future of Britishness", 14 January 2006, and at the launch of his campaign for leadership of the Labour Party, 11 May 2007. Back

4   See e.g. speech of David Cameron , Leader of the Opposition, to the Centre for Policy Studies, "Balancing freedom and security - A modern British Bill of Rights", 26 June 2006; speech of Dominic Grieve, shadow Attorney General, to the Conservative Liberty Forum, "Liberty and Community in Britain", 2 October 2006. Back

5   See e.g. Liberal Democrat Policy Paper 83, For the People, by the People, August 2007 at para. 4.2.4. Back

6   State of the Nation 2006, Joseph Rowntree Memorial Trust (poll conducted by ICM between 21st and 30th October 2006). Back

7   See para. 99 below. Back

8   Annex 1. The outline Bill only contains the most significant substantive provisions and omits many of the more detailed but largely technical provisions that would also be necessary in any Bill of Rights. Annex 2 contains Explanatory Notes to the outline Bill. Back

9   Annual Message to the Congress on the State of the Union, 6 January 1941. Back

10   Annual Message to the Congress on the State of the Union, 11 January 1944. Back

11   General Assembly Resolution 217 A (III) of 10 December 1948. Back

12   Q 420. Back

13   Ibid. Back

14   Q 470. Back

15   Q 499. Back

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