Joint Committee on Human Rights - Twenty-Ninth Report

Joint Committee on Human Rights Twenty-Ninth Report

2 Does the UK need a Bill of Rights?

26. This chapter explores whether the case for a Bill of Rights has been made out.

Why is the Government interested in a Bill of Rights?

27. The Government has given a number of different reasons for being interested in the possibility of a Bill of Rights. It first signalled its intention to consult on a "British Bill of Rights and Duties" in the Governance of Britain Green Paper in July 2007.[16] There the Government said that although the HRA gives effect to "rights which build on British values as old as Magna Carta", it should not be regarded as the last word on the subject. Giving effect to Convention rights in UK law was intended to be a first, albeit substantial, step towards a more formal statement of rights. Two reasons were given for being interested in a Bill of Rights and Duties. First, a Bill of Rights could give people a clear idea of what we can expect from public authorities, and from each other, and a framework for giving practical effect to our common values.[17] Second, a Bill of Rights could provide explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others.[18] The only mention of the possibility of such a Bill of Rights containing additional rights was a negative one:

If specifically British rights were to be added to those we already enjoy by virtue of the European Convention, we would need to be certain that their addition would be of real benefit to the country as a whole and not restrict the ability of the democratically elected Government to decide upon the way resources are to be deployed in the national interest.[19]

28. In his Mackenzie-Stuart lecture in October 2007, the Justice Secretary spoke of the impact of 9/11 and the end of totalitarianism in Europe but suggested that it is "deeper and, in the long-term, more profound social and economic developments that make the case for a Bill of Rights and Responsibilities in the UK."[20] He blamed modern consumerism for encouraging a "selfish" approach to rights:

To an extent, they become commoditised, yet more items to be 'claimed'. This is demonstrated in how some people seek to exercise their rights in a selfish way without regard to others - which injures the philosophical basis of inalienable, fundamental human rights.[21]

29. In his written evidence to the Committee, the Human Rights Minister stated:

We are bringing … [the Bill] forward, not necessarily to add new rights, but above all to ensure the system works better to protect the individual against the powerful. Alongside this will be a clear articulation of the responsibilities we owe to each other, that are intertwined with the rights we enjoy, as members of our society.[22]

30. When we asked the Justice Secretary to explain what a Bill of Rights would add to the HRA he stressed two things. First, he said it would put human rights in their proper context by making clear that with rights go responsibilities.[23] The second addition to the HRA would be in the area of economic and social rights, which, he said, are not really covered to any significant degree by the ECHR, although they are covered in various EU texts, including the Charter of Fundamental Rights.[24] We consider each of these in detail later in this Report.

31. From the various speeches and public pronouncements by Ministers about a Bill of Rights we have discerned a number of possible motivating factors behind the Government's interest in a Bill of Rights:

i) To provide a means of balancing rights with responsibilities;

ii) To provide a framework for our shared national values as part of the Prime Minister's "Britishness" agenda;

iii) To educate the public, by providing greater clarity for people about their rights and responsibilities;

iv) To provide greater ownership of the protected rights than is the case with the HRA;

v) To include some recognition of the importance of social and economic rights such as health and education; and

vi) To protect the weak and vulnerable against the strong and powerful.

32. There does not, however, appear to be much of an appetite on the part of the Government for any additional human rights in any new Bill of Rights, although, as we noted above, the Justice Secretary has recently suggested that there might be scope for including certain additional human rights which are better protected under UK law than under international human rights law. We return to this question in chapters 4 to 6 below where we consider what the contents of a Bill of Rights might be.

33. We regret that there is not greater clarity in the Government's reasons for embarking on this potentially ambitious course of drawing up a Bill of Rights. A number of the Government's reasons appear to be concerned with correcting public misperceptions about the current regime of human rights protection, under the HRA. We do not think that this is in itself a good reason for adopting a Bill of Rights. As we have consistently said in previous Reports,[25] the Government should seek proactively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true.

34. However, the Government also told us that the purpose of a Bill of Rights and Responsibilities will be "to ensure that the system works better to protect the individual against the powerful".[26] We welcome this statement about the purpose of the proposed Bill of Rights. One of the principles agreed by the Northern Ireland Bill of Rights Forum was that a Bill of Rights for Northern Ireland "must address the needs of the poorest and most marginalised."[27] A great deal of our work in this Parliament has concerned the vulnerable and the marginalised: older people in healthcare, asylum seekers, adults with learning disabilities, and children in secure training centres for example. We have often pointed out serious shortcomings in the protection of the human rights of these vulnerable and marginalised people. Whilst not diminishing the obligation on Parliament to legislate effectively and in compliance with human rights principles, strengthening the legal protection for the rights of such people should in our view be one of the principal purposes of any new Bill of Rights.[28]

Other arguments in favour of a Bill of Rights

35. Witnesses suggested a number of other purposes of a Bill of Rights in addition to those we have set out above, including that it:

would provide ownership and promote citizenship;[29]
would "help form a common bond across our increasingly mobile and diverse nation because it can help emphasise our togetherness and jointly shared political values";[30]
would "reinvigorate our democracy" and "ingrain fundamental principles that otherwise might remain implied or implicit";[31]
would "renew[…] and strengthen[…] democracy in 21^st century Britain, and empower[…] the individuals and communities in its embrace";[32]
would be a "defence against incursions by transnational jurisdictions" and strengthen the position of the UK before international courts;[33]
would protect people from state power[34] and commercial bodies and strengthen the means of remedying individual grievances against such bodies;[35]
would have a "symbolic"[36] or "iconic" role;[37]
would set out "the long-term values and commitments of society at large, around which it agrees to be ordered for the foreseeable future";[38]
would "provide human rights with superiority over all ordinary law";[39]
would provide a "unifying force in a diverse society;"[40]
could "restore the checks and balances that have been eroded by the torrent of counter-terrorism laws and practices … [and] confer positive rights on all communities";[41]
would protect the right to privacy and other traditional civil liberties;[42]
would provide "constitutional stability";[43] and
could remedy the problems caused by the HRA.[44]

36. However, Tom Hickman, of Blackstone Chambers, amongst other witnesses, strongly disagreed that a Bill of Rights should be enacted purely because of perceived deficiencies in the HRA, if those deficiencies could be remedied by amending the Act itself.[45]

37. In his evidence, the journalist Henry Porter provided us with a brief list of the liberties he considered had been eroded over the past eleven years, which the introduction of the HRA 1998 had failed adequately to protect, and which led him to believe that a Bill of Rights, containing stronger legal protection that the HRA, was now necessary. This list included:

The erosion of rights of assembly and protest, including through restrictions against protest in the vicinity of Parliament;
Interferences with personal privacy and communications, including through the monitoring of individual communications and the introduction of a number of Government databases and information sharing gateways, including the Children Act database, ID cards and the National Identity Register;
Restrictions on the right to freedom of expression, including through the ban on incitement to religious hatred and the broad prohibition of the glorification of terrorism;
Changes to the powers of domestic courts which erode rights and liberties traditionally understood as inherent in our community, for example, by restricting the right to trial by jury and broadening the powers of bailiffs to enter residential and other properties;
The extension of counter-terrorism legislation, including through increased powers to stop and search, increased powers of pre-charge detention for terror suspects and the introduction of control orders - in his view, "effectively indefinite house arrest.[46]

38. Many of these are issues on which we and our predecessor Committee have consistently reported similar concerns to Parliament. We believe it is important that any UK Bill of Rights includes strong legal protections for freedoms such as freedom of assembly, freedom of expression, freedom from unreasonable search and seizure, and freedom from unwarranted intrusions on privacy, all of which are essentially negative liberties from state interference. For this reason, we believe any bill of rights should be called a UK Bill of Rights and Freedoms.

39. Another argument which has been made in favour of a Bill of Rights is that countries with their own national bills of rights are given greater latitude by the European Court of Human Rights, particularly in the area of national security. Relying on the German Basic Law, David Cameron MP, the Leader of the Opposition, said in a speech to the Centre for Policy Studies:

The existence of a clear and codified British Bill of Rights will tend to lead the European Court of Human Rights to apply the "margin of appreciation".

This means that the court in Strasbourg will tend to respect and uphold the principles laid down in the Bill of Rights whenever they can.

In other words we will be given the benefit of our own clearly stated statement of values.[47]

40. The Justice Secretary disagreed that a Bill of Rights would have this effect:

… reliance on the German Basic Law is misplaced. Research by Oxford University demonstrates that in countries like Germany which have their own bill of rights alongside the ECHR, the courts are in fact stricter and less flexible in their approach to interpreting fundamental rights in national security cases than the UK courts and the German Government does not "win" security cases more often than the British government.[48]

And:

The standard of protection given to individuals by the German Basic Law is greater, and less flexible than that given by the ECHR. As such, decisions made by the German Court are therefore rarely overturned by the European Court of Human Rights because they do not fall below the minimum floor of rights which the ECHR seeks to establish. The lack of interference is not because of the margin of appreciation but because the German Court takes a more stringent approach in protecting the individual in the first place.[49]

41. Professor Klug, of the London School for Economics agreed, expanding on the academic research referred to by the Justice Secretary:

In jurisdictions that had additional Bills of Rights, as well as incorporating the Convention, the courts tended to … let the Government off the hook far less frequently, they were far more diligent and rigorous in their application of the fundamental rights that were in their Bills of Rights, they took a more strenuous approach to the proportionality principle which is in play in security versus individual freedom cases … So I think this idea that having your own Bill of Rights somehow means that you get Strasbourg off your back is not based on any evidence or research. I think quite the contrary, Strasbourg will only, if you like, exercise a greater margin of appreciation when a state has its own Bill of Rights if it considers that that Bill of Rights goes beyond the Convention rather than resiles from it in any way, or is narrower in any way … I am not aware … of any Bill of Rights in the modern world, post 1948, where there has ever been a discussion about introducing one on the basis of wanting to curtail a human rights instrument or Bill of Rights that is already in place.[50]

42. Although a Bill of Rights may have many merits, it is both legally and empirically incorrect to suggest that a Bill of Rights would lead the European Court of Human Rights to give a greater margin of appreciation to the UK than is currently the case. This argument is not, in our view, a good argument for the adoption of a UK Bill of Rights.

The case against a Bill of Rights

43. Not all witnesses were persuaded that a Bill of Rights was required.[51] Some witnesses suggested that a Bill of Rights was unnecessary as the UK already had a Bill of Rights, namely the ECHR as incorporated by the HRA.[52] Some witnesses suggested that the debate was premature (when the HRA is working relatively well,[53] the potential of the HRA is at an early stage[54] or the HRA has not had sufficient time to "bed down" and be understood by the public[55]). Witnesses also expressed fears that a debate about a Bill of Rights could weaken the protection of existing civil liberties,[56] particularly if a Bill of Rights offered lesser protection than the ECHR/HRA, or if there was variance between a Bill of Rights and international human rights standards.[57]

44. A number of witnesses, including the British Institute for Human Rights and Liberty, expressed concern that the current political debate about a Bill of Rights was premised on a misunderstanding or negative perception of human rights.[58] As Liberty stated:

… criticisms of the 1998 Act have fed the calls for a 'Modern British Bill of Rights' and have distorted discussions about what such a Bill should contain.[59]

45. Kenneth Clarke MP agreed that the current, in his view unwanted, debate about a Bill of Rights stemmed from the political background. As he put it:

There is the right-wing press's attack on the European Convention on Human Rights which was a wholly non-controversial document until about 15 years ago but once it became part of our European debate in this country suddenly it became the object of attack with the growing insistence that foreigners were making laws which were being applied at the expense of our institutions. Politicians should have been more robust in resisting that.[60]

46. We share these concerns that some of the early statements of Ministers about the reasons for initiating a debate about a Bill of Rights suggested that one motivation was to dilute the HRA. The Governance of Britain Green Paper, for example, suggested that a Bill of Rights and Duties might provide a means of giving greater clarity and legislative force to the commitment to public safety, in order to ensure that Government agencies accord appropriate priority to protection of the public when balancing human rights.[61] This was an idea which first surfaced in the wake of the infamous case of Anthony Rice, who murdered Naomi Bryant following his release from prison on licence. In our Report on the Department for Constitutional Affairs review of the implementation of the HRA, we demonstrated that there was no evidence that such an amendment to the human rights framework was necessary.[62]

47. A surprising number of witnesses in our inquiry were opposed to a Bill of Rights on this ground alone: they were concerned that the real motivation behind the proposal was to dilute the protections for human rights already contained in the HRA.

ECHR-plus?

48. Many witnesses raised the significance of the case of Chahal v UK[63] as leading to the recent interest by the major political parties in a Bill of Rights,[64] but pointed out that even if a Bill of Rights were enacted, this would not change the existing ECHR caselaw, or lead to a watering down of ECHR rights, unless the UK withdrew from the ECHR. Withdrawing from the ECHR is not a realistic possibility, since being a signatory to the ECHR is now effectively a condition of membership of the EU.[65] As the University of Cambridge Centre for Public Law stated:

… if it is felt that the ECHR strikes an inappropriate balance between individual and collective interests, replacing the HRA with a British Bill of Rights is not the solution: whatever the terms of such national legislation, the UK would remain subject to the ECHR in international law.[66]

49. A number of witnesses therefore suggested that a Bill of Rights should be ECHR-plus: it should build on and enhance existing ECHR rights rather than water down their protection.[67] Professor Robert Blackburn of King's College London, for example, described the HRA and the rights in the ECHR as a "safety net" below which individuals should not fall.[68] The Justice Secretary appeared to subscribe to a similar view of existing human rights protection and assured us that:

The European Convention is a platform and I want to build on that. It is not about taking people's rights away, far from it.[69]

50. We agree that any UK Bill of Rights has to be "ECHR plus". It cannot detract in any way from the rights guaranteed by the ECHR.

51. However, as Professor Francesca Klug rightly, in our view, pointed out,[70] the issue is not whether the Bill of Rights is going to be compliant with the ECHR, which is a fairly low threshold, but whether it is going to be "HRA-plus", that is, add to and build on the HRA as the UK's scheme of human rights protection.

52. The Justice Secretary told us that "there is no question that it [the HRA] has become a received part of our constitutional arrangements."[71] He also talked in terms of "building upon the achievements of the Human Rights Act".[72] However, he acknowledged that the characterisation of the HRA as some sort of terrorists' charter, though inaccurate, is part of the framework for the current debate.[73]

53. In our view it is imperative that the HRA not be diluted in any way in the process of adopting a Bill of Rights. Not only must there be no attempt to redefine the rights themselves, for example by attempting to make public safety or security the foundational value which trumps all others, but there must be no question of weakening the existing machinery in the HRA for the protection of Convention rights. The obligation on public authorities to act compatibly with Convention rights,[74] the obligation to interpret legislation compatibly with Convention rights so far as it is possible to do so,[75] and the power of the courts to grant a declaration of incompatibility in relation to legislation which cannot be interpreted compatibly,[76] are all important features of our national framework of human rights protection. Any weakening of that framework would create space in our legal system for violations of Convention rights to take place with greater ease and frequency.

54. We therefore welcome the unequivocal assurance given to us by the Justice Secretary that there is nothing in the Bill of Rights project, as far as the Government is concerned, that is going to weaken the HRA.[77] He said that, although there was not a party-political consensus on this point, there was a consensus across Government about it.[78] We recommend that that this unequivocal assurance is made the starting point of any future consultation on a Bill of Rights.

What would a Bill of Rights add to the Human Rights Act?

55. A Bill of Rights is only worth pursuing if it would add to what the HRA already provides, and this has therefore been a recurring theme of our inquiry. Witnesses identified a number of ways in which the protection afforded under a Bill of Rights could be greater than under the HRA.

56. First, it would give courts the opportunity to move beyond what Professor Klug called the "mirror principle"[79] - the House of Lords' ruling that the role of national courts under the HRA is merely to give effect to the Convention rights as interpreted by the European Court of Human Rights in Strasbourg, rather than to interpret Convention rights more expansively in the light of domestic traditions.[80] This ruling operates as a significant constraint on the scope of the rights protected by the HRA, particularly when combined with the Strasbourg doctrine of the "margin of appreciation". The Strasbourg doctrine often operates to reduce the scope of a particular right in recognition of the fact that there may be a very wide divergence of views and practice across the member states of the Council of Europe. There is therefore scope for a Bill of Rights to go beyond the "floor" of the Convention rights as interpreted in Strasbourg, and to supplement those rights with more generously defined indigenous rights.

57. Second, a Bill of Rights would give an opportunity to update the 50 year old Convention with additional and more modern human rights which have become recognised since the ECHR was drafted. These human rights include rights of access to personal and official information, the right not to be discriminated against on grounds such as sexual orientation, and environmental rights.

58. Third, a Bill of Rights would give the opportunity to include some additional human rights and freedoms which could be recognised as fundamental in the UK, such as certain economic and social rights (e.g. the right to health and to education, the right of access to court, the right to fair and just administrative action and (apart from in Scotland, bearing in mind its distinctive legal system) the right to jury trial).

59. Fourth, a Bill of Rights would allow for a more detailed articulation of some of the very broad and abstract human rights contained in some of the human rights treaties, such as the right to a fair trial.

60. Fifth, a Bill of Rights would enable a national debate to take place about why it is needed and what should be in it, a debate which did not happen when the HRA was introduced.

61. We would add a sixth reason as to what a Bill of Rights would add to the HRA. Adopting a Bill of Rights would provide an opportunity to enhance the role of Parliament in the UK's parliamentary model of human rights protection.[81]

62. Notwithstanding various arguments against a Bill of Rights, discussed in this Report, we consider that there is considerable scope for a Bill of Rights to add to what is already provided in the HRA and we are therefore satisfied that the case for a Bill of Rights is made out.

63. As far as the relationship between the HRA and any new Bill of Rights is concerned, JUSTICE said:

The HRA must remain intact while any proposed bill of rights is debated and (with approval) enacted … in order to make sure that there is no gap in protection, any decision that the HRA will be repealed should be made - if at all - only after the new bill of rights is firmly on the statute book.[82]

We agree that there must be no question of repealing the Human Rights Act unless and until a Bill of Rights, protecting human rights to at least the same extent as the Human Rights Act, is enacted.

Declaratory or aspirational?

64. The tone of many of the Government's initial statements about a Bill of Rights suggested that it was intended to be merely a consolidating measure: namely a list of the human rights already held and the responsibilities already owed by citizens.[83]

65. Some witnesses, however, suggested that any Bill of Rights should be an aspirational document which looks to the future and does not merely encapsulate the present. For example, as Claire Methven O'Brien, from the European University Institute, Florence, contended:

Constitutions do not merely regulate the exercise of power. Whether explicitly or by implication, they also specify its ends and, in doing so, they help shape our collective political and ethical horizons. Viewing historical constitutions and Bills of Rights in hindsight, it is easy to forget that, during their own times, they did not merely gather together and repeat aspects of the legal status quo. They encapsulated radical political aims. Their authors dared to imagine more just and more democratic futures for their respective countries than those they inherited, and they projected these ambitious visions through new constitutional texts. Bills of Rights, historically, have mapped where people wanted to go, not where they were at.[84]

66. Others, however, considered that they should not have an aspirational role. Professor Vernon Bogdanor's view was that:

One should not put aspirations in a Bill of Rights, that a Bill should be concerned to … deal solely with what is justiciable.[85]

67. The Justice Secretary accepted that a Bill of Rights could play an aspirational role. Relying on Professor Philip Alston's description of Bills of Rights worldwide, he noted that they could fulfil:

"A combination of law, symbolism and aspiration". One should not dismiss for a second the symbolic and aspirational role that Bills of Rights and Responsibilities can play. They can take on an iconic importance which goes beyond the explicit legal protections afforded.[86]

68. During our visit to South Africa in November 2007, Justice Albie Sachs of the South African Constitutional Court told us that Bills of Rights should be about "the sort of society that you want to have - the values you want as a society." We agree.

69. We recommend that any new Bill of Rights should be both declaratory and aspirational. It should state and make fully enforceable all those fundamental rights which currently exist. But it should also look to the future by setting out a clear vision of the sort of society to which the country aspires. A preamble and an appropriate interpretive provision referring back to the preamble could provide the aspirational dimension which is missing from the HRA. We give examples of both in our outline Bill of Rights and Freedoms.

Bills of Rights and historical moments

70. Another recurring question in our inquiry has been whether a Bill of Rights can ever emerge from a calm, deliberative process, rather than being born out of some momentous event such as a civil war, foreign occupation or other conflict.

71. It is certainly the case that many of the best known examples of national Bills of Rights, such as the French Declaration of the Rights of Man and the Citizen, the US Bill of Rights and, more recently, the South African Bill of Rights, were forged in the heat generated by momentous conflicts and upheavals. The same could be said of the international bills of rights: as is well known, the Universal Declaration of Human Rights and the ECHR were both drafted in the aftermath of the Second World War, driven by the desire to avoid a repetition of the then recent horrors of war and genocide. The Northern Ireland Bill of Rights process, which will lead to a sub-national Bill of Rights applicable only in Northern Ireland, also came out of a peace agreement, the Belfast (Good Friday) Agreement 1998.

72. It is fair to say that there is considerable scepticism about whether a truly lasting Bill of Rights can ever emerge from a deliberative process conducted in normal times. However, there are examples of Bills of Rights which were the products of such a process rather than some unique historical moment. The adoption of the Canadian Charter of Rights and Freedoms in 1982, for example, was principally the result of Prime Minister Pierre Trudeau's attempt to initiate a process to bind the Canadian federation together rather than any particularly momentous upheaval in Canadian society at that time. Yet, as we observed during a recent visit to Canada in connection with our work on Counter-Terrorism Policy and Human Rights,[87] the Canadian Charter of Rights and Freedoms is today one of the best examples of a Bill of Rights adopted by a democracy which has attained the status of a constitutional document in the popular imagination.

73. More recently, a number of Australian states have adopted state-level Bills of Rights following consultation processes which were also the product of political debate about the desirability of a Bill of Rights in a modern democracy rather than any particular upheaval in Australian society. Victoria, for example, enacted the Victorian Charter of Rights and Responsibilities in 2006. The Australian Capital Territories, Western Australia and Tasmania have adopted Bills of Rights, and there is now a debate at the federal level about the possibility of a federal Bill of Rights. Although it is too early to judge the durability of these state-level Bills of Rights in Australia, they do demonstrate that Bills of Rights are capable of emerging from deliberative processes conducted in settled democracies in normal times.

16 Governance of Britain, at paras 204-210. Back

17 Ibid, para. 209. Back

18 Ibid, para 210. Back

19 Ibid, para 209. Back

20 Mackenzie-Stuart Lecture, University of Cambridge Faculty of Law, 25 October 2007 (hereafter "Mackenzie-Stuart Lecture"). Back

21 Mackenzie-Stuart Lecture. Back

22 Ev 180. Back

23 Qs 423-4. Back

24 Q 424. Back

25 Thirty-second Report of Session 2005-06, The Human Rights Act: the DCA and Home Office Reviews, HC 1716, HL Paper 278; Sixth Report, Session 2007-08, The Work of the Committee in 2007 and the State of Human Rights in the UK, HC 270, HL Paper 38, paras 3-4. Back

26 Ev 181. Back

27 See para. 312 below. Back