Joint Committee on Human Rights - Twenty-Ninth Report

Joint Committee on Human Rights Twenty-Ninth Report

4 What should be included in a UK Bill of Rights?

111. In this chapter we consider what should be contained in a UK Bill of Rights. The question is very closely linked to the issue we have already considered: why is a UK Bill of Rights needed? As we saw above, one of the most important reasons put forward by advocates of a new UK Bill of Rights is that the rights currently protected by other means in the UK's legal systems, by the HRA, the common law and statute, are inadequate in various respects. In this chapter we seek to move beyond that account of the inadequacy of present arrangements to consider in more detail what the substantive content of such a Bill of Rights might be.

"British values"

112. As we noted above, the Government intends to consult on a "Statement of Values" which the British people consider to be fundamental and envisages that this could form the preamble to a Bill of Rights.[125] Preambles to Bills of Rights and constitutions often reflect the unique nature of the particular historical moment out of which those foundational documents were born. As such, they are usually inspirational in tone. The Preamble to the post-apartheid South African Constitution, for example, recites that the people of South Africa recognise the injustices of their past and honour those who suffered for justice and freedom in their land, and includes amongst the purposes of the adoption of the Constitution "to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights."

113. With the important exception of Northern Ireland,[126] the other nations which make up the UK could not claim that the Bill of Rights, were the UK to adopt one, was the product of any particular historical moment. There are likely to be difficulties in attempting to draw up a statement of British values to go into a Preamble to a Bill of Rights in the absence of any particularly momentous historical occasion for drawing up such a Bill. In November 1999 Australia held a referendum in which the public were asked whether the constitution should include a new preamble. The first public draft of a new preamble, prepared by Prime Minister Howard with the help of a poet, included the controversial passage "We value excellence as well as fairness, independence as dearly as mateship."[127] Although this was not the final version submitted to the people in the referendum, it demonstrates perhaps the difficulties for any country in attempting to draw up a statement of values in relatively normal times. Those dangers may be nowhere more acute than in the UK, where in November 2007 the most popular motto in a Times Online competition to come up with a national motto for Britain was "No motto please, We're British."[128]

114. Nevertheless, we agree in principle that, if there is to be a UK Bill of Rights, as we believe there should be, it ought to have a Preamble which sets out, in a simple and accessible form, first, the purpose of adopting a UK Bill of Rights and, second, the values which are considered to be fundamental in UK society. The HRA contains no such preamble and, in retrospect, might have benefited from one, as a source of guidance for courts and other decision-makers as to the purpose of that Act and its underlying values.

115. In our outline Bill of Rights and Freedoms we suggest that the Preamble to a UK Bill of Rights could simply state that it is adopted to give lasting effect to the values which are considered fundamental by the people of the United Kingdom, followed by a short list of those values. These sorts of values already underpin the ECHR. Obviously, what these values are can only be ascertained precisely by means of a public consultation, but in order to give an example for discussion we suggest some values which might be appropriate for a Preamble to a Bill of Rights, drawing on the sorts of values which were frequently invoked in the evidence submitted to our inquiry:

The rule of law: the commitment to power being exercised lawfully as determined by an independent judiciary;
Liberty: the freedom from both unwarranted restrictions and from want;
Democracy: giving as much control as possible to individuals over the decisions which affect their lives;
Fairness: the equal right of each and every person to be treated with dignity and respect;
Civic duty: the responsibilities to each other and to the communities to which we belong.

116. The list of values above is intended to cover some of the aspects of the principal human rights traditions referred to in chapter 1 above, embracing liberty in both its negative and positive senses, and fairness in both a procedural and substantive sense. Civic duty, is intended to reiterate the idea of responsibilities, which is already implicit in the very concept of rights. We also suggest including two fundamental values which define our institutional arrangements: democracy, and the rule of law.

117. We consider that the Bill of Rights should also have a strong interpretive clause requiring any body interpreting the Bill of Rights to strive to achieve the purpose of the Bill of Rights and to give practical effect to the fundamental values underpinning it, as set out in the Preamble. We have suggested such an interpretive clause in our outline Bill of Rights and Freedoms.

118. We have serious reservations, however, about consulting separately on a Statement of Values, which might or might not subsequently become the Preamble to a Bill of Rights. Public discussion and debate about a Bill of Rights should influence views about the values regarded as fundamental. There should also be complete clarity about the precise purpose of any Statement of British Values prior to consultation on the subject. We therefore consider the Government's consultation on a Statement of Values to be premature and we recommend that it be conducted at the same time, and using the same process, as the forthcoming consultation on a Bill of Rights. We suggest what that process should be in chapter 9 below.

Additional rights

119. As we explained in chapter 2, it is imperative that any rights in a new Bill of Rights should supplement the ECHR rights, not detract from them: the model must be ECHR-plus not ECHR-minus. We now consider what rights, additional to those in the ECHR, might have a strong claim to be included in a new Bill of Rights. We deal with these under four broad headings: what the Government calls "British rights" but we prefer to call "UK rights" for the reasons given above; unincorporated international human rights; rights for particular vulnerable groups; and so-called "third generation rights". Because of the complexity of the issues which they raise, and the controversy that surrounds them, we deal with economic and social rights and "third generation rights" in separate chapters.

120. The question of how to identify whether a particular right would genuinely supplement the rights already protected in UK law under the HRA is not a straightforward one. The Northern Ireland Human Rights Commission (NIHRC) is currently wrestling with the similar problem of how to determine whether a proposed right answers a need for extra protection arising out of the particular circumstances of Northern Ireland, with a view to advising the Justice Secretary as to what should be included in a Northern Ireland Bill of Rights. The NIHRC has developed a detailed methodology for approaching this question, which gives a flavour of the difficulty of reaching agreement on such a fundamental issue.[129] We do not propose to consider the appropriate methodology for deciding the "additionality" question. At this stage we confine ourselves to identifying whether there are any rights which are candidates for being included as additional rights in any new Bill of Rights.

"UK rights"

121. A new Bill of Rights gives the opportunity to include rights which are distinctive to the UK in two ways. First, by adding rights and freedoms which are recognised as fundamental in the UK but which do not currently have any equivalent in the ECHR or the UK's other international human rights obligations. Second, there is scope for a UK Bill of Rights to go beyond the "floor" of the Convention rights as interpreted in Strasbourg, or any other rights in other treaties to which the UK is a party, by a more detailed articulation of some of the very broad and abstract rights contained in those treaties. Indeed, such specific implementation of international human rights norms at the national level, by more detailed domestic provisions giving effect to the international rights, is positively encouraged by all the international treaty bodies, as a way of making the international norms more practical and effective.

122. Although the Government has said that the purpose of bringing forward a Bill of Rights is "not necessarily to add new rights", it has also referred to the possibility of such a Bill adding "specifically British rights". When we asked the Justice Secretary to give some examples of what he would consider to be specifically British rights which might be candidates for inclusion in a Bill of Rights, he mentioned four: education, health, administrative justice and equality.[130] We consider the strength of the case for including education and health as additional rights in chapter 5 below. He did not mention a right frequently mentioned in evidence to our inquiry: the right to trial by jury.

THE RIGHT TO TRIAL BY JURY

123. A number of witnesses were of the view that a UK Bill of Rights should include a right to jury trial. Martin Howe QC, for example, made the general case for a Bill of Rights being more precise in its definition of Convention rights as they apply in the UK, and advocated the broad and general right to a fair trial in Article 6(1) ECHR being fleshed out with a guarantee of a right to a jury trial in serious cases.[131]

124. The Rt Hon Kenneth Clarke MP said in evidence to us that the protection of the right to trial by jury is the best argument that he has heard in favour of a Bill of Rights.[132] He is a strong defender of the right, and has taken part in arguments in recent years defending it, but says that:

I think Parliament should continue to look at it. I do not think it should be decided on some human rights argument and be ruled out of court as an argument.[133]

125. According to the Rowntree State of the Nation poll, 89% of the public think that the "right to a fair trial before a jury" should be included in any Bill of Rights. We recently considered the legal status of the right to jury trial in our legislative scrutiny Report on the Fraud (Trials Without a Jury) Bill in the last session. We said:

We recognise … that there is a considerable range of views about the precise status of jury trial. The question is one which divides parliamentarians, practitioners and commentators and not necessarily on party lines. At one extreme, some would consider there to be a constitutional right to jury trial in all but minor criminal cases which it is never justifiable to restrict. At the other extreme, some would regard it as a mere modality of trial, enjoying no fundamental status and always capable of restriction, modification or replacement by law. In between these two extremes others may regard jury trial as having attained a degree of special status at common law, requiring any interference with it to be by explicitly authorised by primary legislation and properly justified by reference to publicly articulated reasons.[134]

126. We did not take the view that jury trial in England and Wales enjoys the status of a constitutional right which is not capable of restriction or limitation even by legislation. Bearing in mind the many restrictions on jury trial which already exist, not least the fact that the vast majority of criminal cases in this country are dealt with by judges not juries, we considered that claim to be exaggerated. However, we did conclude that jury trial "has a sufficiently distinctive place in the legal heritage of England and Wales to have attained the status of a right recognised at common law, which therefore requires express authorisation in primary legislation to be limited or restricted, and careful justification."[135]

127. On this basis, we agree with those who say that a UK Bill of Rights should include the right to trial by jury in serious cases in England, Wales and Northern Ireland (there being no tradition of jury trial in Scotland's separate criminal justice system). In the parliamentary model of human rights protection which we favour, as explained in chapter 7 below, this does not mean, as Kenneth Clarke MP feared, that limitations and restrictions on the right will be "ruled out of court" on human rights grounds. Limitations on rights included in any UK Bill of Rights will be possible, provided they can be shown to be justified. Parliament will therefore continue to be able to look at the question of limitations on the right, and entitled to restrict it where that can be shown to be necessary to meet another important objective. Inclusion of the right to trial by jury in a UK Bill of Rights should, however, ensure that only such demonstrably justifiable restrictions are imposed.

RIGHT TO ADMINISTRATIVE JUSTICE

128. We welcome the Justice Secretary's indication that a right to administrative justice is being considered by the Government as a candidate for inclusion in any Bill of Rights. The right to fair and just administrative action is arguably one of the common law's greatest achievements, and in other countries which have recently adopted a Bill of Rights it has been accorded constitutional status. The South African Bill of Rights, for example, provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.[136] We agree that this right is a strong candidate for inclusion in a UK Bill of Rights as a nationally distinctive right.

EQUALITY

129. We also welcome the fact that the Government is considering a right to equality as an additional right in any UK Bill of Rights. In our view the UK's statutory anti-discrimination laws are now sufficiently established to be regarded as the foundation, along with the common law's regard for equality, for a general free-standing right. Including a right to equality in a Bill of Rights would not mean that the whole complex body of anti-discrimination law would have to be written into the Bill of Rights. A simply formulated, free-standing and overarching right to equality in a Bill of Rights would provide a secure underpinning for an Equality Act, which would contain the detail required in order to give effect to the underlying right in different contexts.

OTHER CANDIDATES

130. In our view, both the common law and statute provide a number of other possible rights which are candidates for inclusion in a Bill of Rights as distinctively UK rights, either going beyond or giving more concrete content to international human rights. It is well established, for example, that the common law recognises a right of access to court which is often labelled "a constitutional right" by our courts because it is regarded as so fundamental that it requires clear and unambiguous statutory words to displace it. The right is wider than the equivalent right of access to court in Article 6(1) ECHR, because the latter right only applies to the determination of rights which count as 'civil rights' in the Strasbourg case-law, which means that the ECHR right has little purchase in administrative law contexts, such as immigration, education or social security. The indigenous common law right of access to court, by contrast, is often articulated most strongly by UK courts in precisely that context.

131. There are other human rights, associated with the common law right of access to court, which may also be candidates for inclusion, such as the right to legal aid where the interests of justice require it, in order to make the right of access to court practical and effective. There are also, in our view, certain statutory rights which would be candidates for inclusion, including the right of access to both personal and official information in the Data Protection Act 1998 and the Freedom of Information Act 2000. All these, in our view, should be the subject of public consultation.

RELATIONSHIP BETWEEN BILL OF RIGHTS AND COMMON LAW

132. Any Bill of Rights should include a saving provision making clear that nothing in the Bill of Rights denies the existence or restricts the scope of rights or freedoms recognised at common law. Our outline Bill includes an example of such a clause.

Unincorporated international human rights

133. A number of witnesses have pointed to the opportunity a Bill of Rights would provide for incorporating international and regional human rights standards such as the Children's Rights and Disability Rights Conventions.[137]

134. The Government does not appear to have any plans to use the Bill or Rights as an opportunity to give effect to any human rights in international law which are not yet part of our law. The Justice Secretary said "You have to make a judgment on a case by case basis whether you want to incorporate those into domestic law."[138]

135. We are disappointed that the Government's approach to the human rights which should be contained in any Bill of Rights appears to be wholly inward looking. The Justice Secretary's answer to our question about other international human rights treaties suggests that the Government will not be taking these into account at all when drafting the Bill of Rights. In our view this would be a missed opportunity. We and our predecessor Committee have called on the Government to incorporate into UK law provisions in human rights treaties where, in our view, the protection offered by our national law is inadequate, for example in relation to certain provisions in the UN Convention on the Rights of the Child.[139]

136. We recommend that the Government consults on whether there are rights in human rights treaties to which the UK is a party which are candidates for incorporating into a Bill of Rights. There may be rights contained in those treaties which do not yet find their articulation in domestic law and which could be included in any Bill of Rights if it were considered appropriate.

137. In addition, there is scope for including in any Bill of Rights an interpretive provision which addresses directly the relationship between the Bill of Rights itself and the UK's other international human rights obligations. We recommend that a Bill of Rights include a provision requiring courts to pay due regard to international law, including international human rights law to which the UK is a party, when interpreting the Bill of Rights. Our outline Bill contains such a clause.

Rights for particular groups

138. Many Bills of Rights contain, in addition to the rights which apply to everyone, more specific and detailed rights for particular groups whose vulnerability calls for special protection. The South African Bill of Rights, for example, makes specific provision for the rights of children, including such detailed rights as the right not to be detained except as a measure of last resort and the right to be protected from maltreatment, neglect, abuse or degradation.[140]

139. The Justice Secretary said it was possible that there would be scope to include rights in a Bill of Rights for particularly vulnerable groups such as children.[141]

140. The Children's Rights Alliance for England advocate the incorporation of the UN Convention on the Rights of the Child into UK law through a Bill of Rights. They suggested that this would offer greater protection to the rights of children in a number of different situations including: dissemination of and access to human rights information; due weight to be given to the expression of children's views; family law including adoption; privacy in criminal and civil proceedings; and court proceedings and custody as a last resort.[142]

141. When asked what a Bill of Rights could contain, Baroness Hale replied:

I could give you two things from my shopping list, but it is a purely personal opinion, and the first is children's rights. There is virtually nothing in the ECHR about children. The UK is party to the UN Convention on the Rights of the Child and there are aspects of that Convention which could, it seems to me, be with profit put into any British Bill of Rights; better to accord with our existing international obligations and with our understanding of children and what they should have. That would, of course, include a stronger right to education than is in the European Convention although there is one in the European Convention.[143]

142. Other witnesses have focussed on the rights of other vulnerable groups. The Royal National Institute of Blind People referred to the position of disabled people. It recognised the capacity of a Bill of Rights to ensure that "all members of society are able to participate properly", and suggested that "an unwritten constitution that lacks a codified set of rights and responsibilities can serve disabled individuals poorly":[144]

The purpose of the Bill of Rights should be to support the rights and freedoms currently contained in international treaties, such as the UN Convention on the Rights of Persons with Disabilities … Establishing a Bill of Rights would help reaffirm the universality and indivisibility of all human rights and freedoms, but it should also confirm the interdependence of these rights and freedoms for disabled individuals. The RNIB would like to see a Bill of Rights that clearly spells out that disabled people are to be guaranteed the enjoyment of all human rights and freedoms without discrimination.

143. As we said earlier, a Bill of Rights should apply to every person in the UK, whether or not they are citizens. Indeed, as Professor Fredman of Oxford University suggested, including rights for non-citizens in a Bill of Rights is even more important "because they do not have a say in the political process".[145] In addition, as some witnesses have argued, the Bill of Rights also provides an opportunity to strengthen the human rights of particular vulnerable groups, who, because of their status, may require special protection from the law.[146]

144. The TUC suggested that a Bill of Rights should "increase[e] the range of collective rights and trade union rights"[147] to allow "fuller rights for individuals to be represented by their trade unions collectively in workplaces, to bargain collectively, or indeed, to organise collective action."[148]Unite the Union agreed, adding that collective rights might be wanted not only by trade unions but also by other organisations representing the people who belong to them.[149]

145. We have often made reference in our Reports to the need to give better effect to provisions in the UN Convention on the Rights of the Child and have also called for the incorporation into UK law of some of the rights, principles and provisions in the Convention. We have also urged the Government to ratify the UN Convention on the Rights of Persons with Disabilities. There is a strong case for any Bill of Rights to include detailed rights for certain vulnerable groups such as children; and there should be consultation as to whether to include specific rights for other groups such as disabled people, religious, linguistic and ethnic minorities, workers (including migrant workers) and victims of crime.

Conclusion

146. In our view the case is clearly made out for the inclusion of a number of additional rights in any UK Bill of Rights, particularly in relation to rights which can be distilled from the UK's distinctive traditions. However, it is important that both this question and the precise definition of any additional rights, be the subject of proper public consultation.

125 Q 434. Back

126 The Northern Ireland Human Rights Commission, in its 2001 Consultation, Making a Bill of Rights for Northern Ireland, p. 17, proposed a preamble in similar terms to the preamble to the South African Bill of Rights. Back

127 George Williams, A Charter of Rights for Australia, UNSW Press, 2007, (hereafter Williams) pp. 63-64. Back

128 "Maverick streak makes mockery of hunt for a British motto", Times Online, 27 November 2007. The competition was launched in response to the announcement that the Government was to draw up a Statement of British Values to underpin its constitutional reforms. Back

129 Annex 3. Back

130 Q 445. Back

131 Q 5. Back

132 Q 236. Back

133 Ibid. Back

134 Second Report of 2006-07, Legislative Scrutiny: First Progress Report, HL Paper 34, HC 263, para. 5.8. Back