Joint Committee on Human Rights - Twenty-Ninth Report

Joint Committee on Human Rights Twenty-Ninth Report

3 A "British" Bill of Rights and the Devolution Dimension

74. In this chapter we consider what is meant by "British" and the impact of devolution on a Bill of Rights.

75. We have identified four different ways in which a Bill of Rights could be distinctively British:

it might contain additional rights, over and above those set out in the ECHR and other international instruments;

it could relate specifically to British citizens, rather than to everyone in the UK;

it could relate specifically to people who associate themselves with a British Statement of Values or who consider themselves to be British; and

by being "home-grown", it might reassure those who are concerned that human rights were imposed on the UK by "Europe" that human rights have been formulated and agreed in the UK.

76. There is also a geographical aspect to the term "British" which is relevant, in that Northern Ireland is part of the United Kingdom but not part of Great Britain. A "British Bill of Rights" therefore could not, by definition, apply to Northern Ireland. We consider the implications of this below. We doubt whether leaving out Northern Ireland is the Government's intention. We note that in the Government's Draft Legislative Programme it is envisaged that the Bill of Rights and Responsibilities, which will soon be the subject of consultation, is not described as "British" but as applying to "people in the UK."[88]

77. We consider the issue of additional rights, over and above those set out in the ECHR, in chapters 4, 5 and 6. In this chapter, we consider the other aspects of 'Britishness' identified above.

British rights for British citizens?

78. An explicit link between a British Bill of Rights and citizenship was made in the Governance of Britain Green Paper, the two issues being considered in the same chapter. The Green Paper argued that "everyone in the UK should be offered an easily understood set of rights and responsibilities when they receive citizenship".[89] It went on to state:

At the heart of British citizenship is the idea of a society based on laws which are made in a way that reflects the rights of citizens regardless of ethnicity, gender, class or religion. Alongside sits the right to participate, in some way, in their making; the idea that all citizens are equal before the law and are entitled to justice and the protection of the law; the right of all citizens to associate freely; the right to free expression of opinion; the right to live without fear of oppression or discrimination; the idea that there is an appropriate balance to be drawn between the individual's right to freedom and the collective good of all and that, in the final analysis, the Government is accountable for its actions to the will of the people expressed in Parliament and through elections.[our emphasis][90]

79. As part of the Governance of Britain programme, Lord Goldsmith's Citizenship Review reported to the Prime Minister in March 2008. Part of the Review's terms of reference was to "clarify the legal rights and responsibilities associated with British citizenship, in addition to those enjoyed under the HRA, as a basis for defining what it means to be a citizen in Britain's open democratic society." The Prime Minister, the Justice Secretary and the Human Rights Minister have all spoken of the consultation on a British Bill of Rights and Duties being "informed" by the Citizenship Review.[91] The Justice Secretary has spoken of the Bill of Rights as helping "to foster a stronger sense of shared citizenship".[92]

80. Some legal rights are explicitly linked with citizenship. These include the right to vote (although, in the UK, this also extends to citizens of Commonwealth countries and the Irish Republic and, for local and European elections, citizens of other EU countries resident in the UK), the right to a passport,, and the right to consular access abroad.[93] There are also, of course, certain rights in any Bill of Rights which only apply to citizens: these are the so-called "democratic rights" such as the right to vote and the right to stand for elections or otherwise participate in public life.[94] The Governance of Britain Green Paper spoke of "a general lack of clarity about the rights and responsibilities that come with being granted British citizenship".[95] But the place occupied by the category of rights related to citizenship in any Bill of Rights would be small.

81. Fundamental human rights are universal. Article 2 of the Universal Declaration of Human Rights states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

82. Concerns have been expressed at the suggestion that fundamental human rights, such as equality before the law, should or could be restricted so that they applied only to British citizens. Professor Conor Gearty, for example, suggested this would lead to a "hierarchy of rights-holders, with Britons at the top and others further down the pecking order". He argued that "the very title [British Bill of Rights] suggests a flight from universalism into a parochial measure, offering rights to the British but not to others".[96]

83. The Justice Secretary qualified his comments on the link between rights and citizenship by acknowledging that "human rights are our birthright as human beings: they are not the gift of governments but part of our common humanity".[97] He expanded on this theme in oral evidence, saying:

A lot of Convention rights, for example, are there for anybody in the jurisdiction. I do not think anybody is suggesting a system where you had one set of rights in a criminal trial under habeas corpus if you were a British citizen or if you were not, that would be risible and complete contrary to the Convention.[98]

84. The rights enshrined in the HRA apply to everyone in the UK, irrespective of their citizenship or immigration status. Bills of Rights protect rights which people have by virtue of being human, not according to their legal status as citizen or non-citizen. It is regrettable that the loose language of the Governance of Britain Green Paper appeared to suggest that some of those rights - such as equality before the law - are associated with citizenship. We welcome the Justice Secretary's acknowledgement that fundamental human rights cannot be restricted to apply solely to citizens. We also note that there are rights - such as the right to vote - which are legitimately linked to citizenship. Nevertheless, we are concerned that by making an explicit link between human rights and citizenship, the Government may foster the perception that non-citizens are not entitled to fundamental human rights. It risks turning the important debate about a Bill of Rights into a surrogate for anti-outsider sentiments, rather than an opportunity to define and celebrate the values regarded as particularly fundamental in the UK as a nation state. We call on the Government to decouple the debate about a Bill of Rights from the debate about citizenship and the rights and duties of the citizen, and to ensure that in future the universality of fundamental human rights is explicitly recognised in documents and speeches relating to a Bill of Rights.

Definition of "British"

85. The Government proposes to develop a British Statement of Values because, in its view, compared to the situation in other countries, "there is a less clear sense among the British citizens of the values that bind the groups and communities who make up the body of the British people".[99] According to the Governance of Britain Green Paper:

It is important to be clearer about what it means to be British, what it means to be part of British society and, crucially, to be resolute in making the point that what comes with that is a set of values which have not just to be shared but also accepted. There is room to celebrate multiple and different identities, but none of these identities should take precedence over the core democratic values that define what it means to be British. A British citizen, fully playing a part in British society, must act in accordance with these values.[100]

86. In oral evidence, the Human Rights Minister explained the connection between a British Statement of Values and a Bill of Rights:

It feeds in because any statement of rights, historically and as a matter of principle, derives in the end from the values of the society to which these rights and responsibilities apply; it is inevitable … We would envisage a situation where the Statement of Values … could form the preamble to such a Bill of Rights and Responsibilities and set out the values which inform those rights and responsibilities.[101]

87. Some other witnesses also saw a connection between British values and a Bill of Rights. Professor Robert Blackburn, for example, wrote:

Enacting a Bill of Rights will be an opportunity to articulate a British statement of citizens' rights and freedoms more closely attuned to our national circumstances, the indigenous traditions of our legal and political systems, and the progressive values our society and people seek to espouse.[102]

88. Whilst we have serious concerns about the link being made by the Government between human rights on the one hand and the duties of citizenship on the other, we acknowledge that there is an inevitable and entirely appropriate link with the question of national identity. A national Bill of Rights is an expression of national identity and the process of drawing one up deliberately invites reflection about what it is that "binds us together as a nation," what we regard as being of fundamental importance, and which values we consider to guide us. It is potentially a moment of national definition.

89. Concern has been expressed, however, that a focus on "Britishness" could be detrimental to social cohesion.[103] In addition, Sunny Hundal suggested to us that the absence of an explanation of "British values" has led the debate to be focussed instead on cultural values which could be divisive.[104]

90. Kenny MacAskill MSP, Cabinet Secretary for Justice in the Scottish Government, questioned the relevance of the concept of Britishness:

We as a Government party perceive ourselves as citizens or subjects of the United Kingdom but our nationality is Scottish. What is meant by Britishness? Is there a concept of Britishness? … Are we British? No we are not. We consider ourselves Scottish and we consider those south of the border to be English … We see the concept of Britishness as rather arbitrary, that it was founded for an empire and to some extent has begun to fragment … so the concept of Britishness is something that we really do not buy into.[105]

91. In the Northern Ireland context, Professor Dickson of Queen's University Belfast told us that:

… the current talk of a British Bill of Rights is at the very least complicating the process in Northern Ireland, and I gather that there is now talk of a UK Bill of Rights as opposed to a British Bill of Rights, and you can appreciate, I imagine, that the use of those terms is itself a complicating factor in Northern Ireland where there are certain politicians who identify with the British way of doing things.[106]

92. The Justice Secretary told us:

There is a drafting issue about what is Britain and what is the UK. There are some quite difficult issues about the geographical extent of specific rights in any new bill, not so much responsibilities but certainly new rights because of devolution and different jurisdictions … We just have to ensure that what we say does not collide with the devolution settlement and, if there is a question of that, it has the consent of the devolved administrations. It is a tricky issue but it does not raise issues of principle.[107]

93. The Government is right to acknowledge that there will be significant practical obstacles to drawing up a Bill of Rights, extending across Britain or the UK, which is in harmony with the complexities of the devolution arrangements, particularly in relation to Northern Ireland which has already gone a long way towards agreeing its own Bill of Rights under the Belfast (Good Friday) Agreement 1998. In following up this inquiry we intend to visit Northern Ireland to learn more about the Bill of Rights process there and how it might relate to a UK Bill of Rights. Unlike the Justice Secretary, however, we also see an issue which needs to be addressed, in that there would appear to be difficulties associated with establishing a Bill of Rights on the basis of a statement of 'British' values which may or may not be accepted by the people who consider themselves to be, for example, 'English', 'Scottish', 'Irish' or 'Welsh', but not 'British'.

British not European

94. The Justice Secretary gave us another explanation of the 'British' aspect of a Bill of Rights:

The "British" adjective in my view is important because there is the implication in the air that these human rights which equal in some people's minds, not mine or yours, a terrorists' and criminals' charter, are a European imposition and by Europe it is meant "the Other", that somehow we are not part of Europe. I think it is important that we break that down.[108]

95. He denied that this was purely a matter of presentation or spin, arguing that this was no different from practice in other countries:

They subscribe to the European Convention but in their own constitutional texts they have clear statements about what it means to be a French citizen, a German citizen, an Italian citizen, a Spanish citizen and so on.[109]

96. A note of caution about this approach was sounded by Democratic Audit:

We believe that it would be detrimental to social cohesion in this country if it becomes a signal of rejection of "European" or minority rights or values, and profoundly wrong if it in any way reduces the universality of human rights for non-citizens resident here.[110]

97. We note the Government's argument that the term "British" can help demonstrate that rights and responsibilities have been formulated and agreed in the UK and not 'imposed' from abroad. However, as Professor Klug observed, the emphasis on a British Bill of Rights appears to be deliberately inward looking, rather than celebrating the UK's part in taking forward international human rights.[111] We understand the Government's frustration with the tendency in some parts of the media to characterise the HRA as an alien imposition of non-British values merely because it gives effect to the ECHR. As the Justice Secretary points out, "these rights which were drafted, not least by David Maxwell-Fyfe, a distinguished Conservative jurist, were essentially a distillation of what he and the other British drafters thought were British rights."[112]

98. We doubt, however, whether giving people a greater sense of ownership of the same set of rights can be a sufficient justification alone for embarking on the process of adopting a Bill of Rights. We would also be concerned if this encouraged the view that human rights are linked to nationality or citizenship rather than being universal in their application.

Use of the term "British": Conclusion

99. As we make clear later in this Report, we accept that a Bill of Rights for this country should include indigenous rights, not in the sense of rights which can only be claimed by British citizens, but in the sense of rights and freedoms which have attained a status of fundamental importance in this country's traditions and which therefore merit inclusion in any catalogue of the rights, freedoms and values which are considered to be constitutive of this country's identity. However, we are not persuaded that the term "British" Bill of Rights is a helpful description of the Government's proposal. It suggests a link with citizenship which, for many rights, would be inappropriate; it excludes Northern Ireland; and it is not necessarily inclusive of people in the UK who consider themselves to be English, Scottish, Irish or Welsh, for example, but not British. The term "UK" Bill of Rights would be more accurate and appropriate and would also serve to demonstrate that the rights it contained are "owned" by the people of the UK.

Devolution

100. Rather surprisingly, the devolution of power within the UK is not mentioned in the Governance of Britain Green Paper. Reviewing the Green Paper, the Political Studies Association stated, "When it comes to devolution the Green Paper has a primary focus on the need to consider its implications for Britishness".[113]

101. In the Constitution Unit's response to the Green Paper, Professor Robert Hazell stated:

The Green Paper is generally rather restrained on issues connected with devolution. One area of concern is the proposals for a British statement of values and a British bill of rights. These suggest that consultation will be directly with the general public across the UK, but not their governments. Presumably, however, any statement or bill will (to the extent it is binding) be binding on the devolved administrations and legislatures as well as UK-level institutions. If that is to be the case, those devolved institutions also need to be involved in the process of formulating the statement or bill, and to agree to it. Otherwise, the introduction of the statement or bill risks being seen as an imposition on the devolved institutions, and provoking a serious breach in relations with them.[114]

102. Professor Hazell went on to note that a similar issue arose in Canada during the introduction of the Canadian Charter of Rights and Freedoms without Quebec's consent, which led to Quebec refusing to accept the new constitution as a whole. According to Professor Hazell, this "has proved to be an enduring sore point in Quebec-Canada relations generally". He recommended that devolved institutions be involved in formulating any statement or Bill of Rights, and their agreement obtained, in order to avoid this.[115]

103. We asked Kenny MacAskill MSP, Cabinet Secretary for Justice in the Scottish Government, about the extent to which the Scottish Government had been involved in discussions on a Bill of Rights. He said:

Not really a great deal at all and I think the fact that devolution is not mentioned is perhaps an indicator of that.[116]

104. The Justice Secretary accepted that the Government had "to ensure that what we say does not collide with the devolution settlement and, if there is a question of that, it has the consent of the devolved administrations".[117] We agree. A UK Bill of Rights must be based on a detailed dialogue between central government and the devolved administrations. We note that this dialogue does not yet seem to have begun.

105. The situation is further complicated by the work being undertaken to draw up a Northern Ireland Bill of Rights, as a result of the Belfast (Good Friday) Agreement 1998. Professor Brice Dickson and Professor Chris Sidoti, Chair of the Northern Ireland Bill of Rights Forum, who have both been heavily involved in this initiative, argued that the two processes could be run in parallel and be mutually reinforcing.[118] Professor Dickson explained how the two Bills of Rights could complement each other:

There should be a Bill of Rights for the whole of the United Kingdom … each separate legal system within the UK should then be free to devise an additional Bill of Rights going further than the national Bill of Rights has gone and dealing with particular matters that are of concern to that legal system. These additional Bills of Rights would best be enacted as Westminster legislation, thereby placing them beyond repeal or amendment by any devolved legislature.[119]

106. Emphasising the need for dialogue with the UK Government, Professor Dickson said:

If certain rights … are to be protected by the Bill of Rights for Northern Ireland or for the UK, regard should be had to the fact that devolved administrations have responsibilities in those areas … so it would be appropriate at the very least that the Assembly in Northern Ireland consciously debated the enactment of any such protection of rights that would have effect in Northern Ireland… I am in favour of a national Bill of Rights that protects core rights but if the devolved administrations want to go further and protect additional rights for their part of the country then well and good.[120]

107. The devolution settlement creates certain difficulties for a UK Bill of Rights, but we do not accept that it creates an insuperable obstacle to such a Bill. Ever since the Universal Declaration of Human Rights, human rights norms have gradually become embedded at global, regional and national level. Provided the hierarchy between these levels is clear, there is a positive virtue in the broadly defined rights in the international standards being fleshed out into more concrete norms and standards at the regional, national and sub-national level. Each Bill of Rights, from the global through the regional to the national and sub-national levels, becomes more specific and detailed in its provisions, and is free to be more generous but must not fall below the minimum floor of the higher level of protection. It is common for federated states, such as Canada, the US and Germany, to have both federal Bills of Rights and state-level Bills of Rights, and for any questions about the hierarchical relationship between these different levels of rights protection to be resolved by the federation's Constitutional Court. In our view, the devolution settlement creates fewer difficulties than face federated states in this respect, because constitutional matters, including human rights, are not devolved matters.

108. Nevertheless, devolution raises complex issues, particularly if a UK Bill of Rights concerned devolved matters. Professor Carol Harlow of the London School of Economics argued:

Human rights are not, of course, a devolved issue, a division of functions that perhaps remains largely uncontroversial so long as the matter is governed by the Convention and our shared heritage in that respect. Were this to change and more particularly if a proposed new text were to penetrate deeply into economic and social rights, devolved areas would be involved…. Whether further regionalisation is desirable and what the relationship of regional texts could be with the ECHR and Strasbourg courts are very difficult and delicate questions.[121]

109. We received some helpful evidence from the Law Society of Scotland about the difficulties of a UK Bill of Rights in a Scottish context. Some well known civil rights south of the border, such as the right to trial by jury, are not part of Scotland's constitutional heritage.[122] In addition, an amendment to the Scotland Act 1998 would be required to ensure that provisions of a UK Bill of Rights relating to devolved matters could not be repealed or derogated from by the Scottish Parliament.[123]

110. As we have noted, the Justice Secretary spoke of some "tricky" drafting issues, rather than matters of principle, arising from the devolution settlement.[124] We agree with the Government that the UK's devolved governance arrangements do not preclude a UK Bill of Rights from being drawn up. We also agree with Professor Dickson that having Bills of Rights at both the national and the devolved levels is desirable. Early engagement with the devolved administrations is necessary, however, to deal with areas in a UK Bill of Rights which relate to devolved matters and to address differences between the UK's three legal jurisdictions.

88 The Government's Draft Legislative Programme 2008/09, Cm 7372, May 2008, p. 65. Back

89 Governance of Britain, para 186. Back

90 Governance of Britain, para 204. Back

91 E.g. Ev 179. Back

92 Towards a Bill of Rights and Responsibilities, 21 January 2008; Mackenzie-Stuart Lecture, 25 October 2007. Back

93 Qs 434-35. Back

94 Eligibility for some of the economic and social rights included in Bills of Rights may also be justifiably defined by reference to nationality or immigration status: see chapter 5 on economic and social rights below. Back

95 Governance of Britain, para 191. Back

96 Ev 130. Back

97 Mackenzie-Stuart lecture, 25 October 2007. Back

98 Q 426. Back

99 Governance of Britain, para 194. Back