Joint Committee on Human Rights - Twenty-Ninth Report

Joint Committee on Human Rights Twenty-Ninth Report

9 Process

296. In the Hansard Society's recent Audit of Political Engagement (2008), people were asked to consider 11 constitutional issues and to rate their level of satisfaction or dissatisfaction with each.[253] 63% of those questioned were "effectively neutral" on Britain not having a new Bill of Rights.[254] When asked to consider the priorities for change, the most popular priority (26%) concerned how the HRA works in practice. A Bill of Rights was rated 8^th out of 11 (14%). The Hansard Society concluded:

On all but two of the issues, a majority of the public at least takes sufficient interest to declare themselves satisfied or dissatisfied with the current arrangements. The two exceptions, which concern the unwritten Constitution and a Bill of Rights, are among the most technical and the vaguest, and it can reasonably be concluded that neither issue has any real resonance, at least when stated in these terms.[255]

297. On the basis of this research, the Government has an uphill task to stimulate and inspire public debate. As Professor Graham Smith of the Centre for Citizenship and Democracy told us, the Government will need to "drum up some interest" as "we are in a very unusual position here":

The interesting thing about the Bill of Rights here is that there is not a massive cry for a Bill of Rights at the moment. Most of the Bills of Rights that emerge come out of some form of constitutional conflict.[256]

298. He also advised the Government to be innovative with its consultative process to capture the public imagination.[257] He told the Committee:

If you are going to look at creating a Bill of Rights that shapes the relationship between the governed and the governors, the process by which that is brought about is incredibly important.[258]

299. Many witnesses stressed the importance of informed public debate on human rights and consultation on a Bill of Rights in order to ensure ownership by society as a whole: some regarded the process for creating a Bill of Rights as being as important as the end product.[259]

300. The Government appears to be alive to the importance of the process of agreeing and drafting a Bill of Rights, conscious perhaps of the failure of the HRA to secure a place in the public's affection. In recent lectures, the Justice Secretary has accepted that:

The [Human Rights] Act has not become an iconic statement of liberty like the US, or South African Bills of Rights. Perhaps this is because our statements of rights have been the production of evolution and not revolution.

We have not had to struggle for self-determination or nationhood, nor have we been torn apart by social strife, or had to fight bitterly for equality as in South Africa.[260]

And he noted:

If a Bill of Rights and Responsibilities … is to be more than a legal document and become a "mechanism for unifying the population", it is vital that it is owned by the British people and not just the lawyers. For it to have real traction with the British people they must have an emotional stake in, and connection with it.[261]

301. We recognise that the UK is in a comparatively unusual position in embarking on a debate about a Bill of Rights at the present time. It is for this reason that it is vitally important that the Government gets the process for discussing a Bill of Rights right. Many witnesses have stressed the importance of a full debate about any Bill of Rights, both politically and publicly. For example, Claire Methven O'Brien of the European University Institute said:

If it is going to have any chance of being viewed as legitimate, people and elected politicians in Britain must be directly involved in the drafting of any new Bill of Rights or statement of values … There can […] be no substitute, in terms of democratic legitimacy and accountability, for the direct participation in constitution-making of 'ordinary' citizens and their representatives.[262]

302. Professor Sidoti agreed, noting "the importance of having … fundamental issues debated not only in the community but also amongst some of the political leadership and … across political and civil society."[263]

303. Crucially, members of the public need to feel that any Bill of Rights is not a remote document, imposed on them by Government, but something they have helped create and which reflects their values. But discussion and agreement about a Bill of Rights should also include politicians, civil society organisations, private bodies, academics, and commentators. The key issue for the Government is how to create a process which is legitimate and accountable, facilitates full and effective engagement and participation and which answers three essential questions: (1) is a Bill of Rights necessary and desirable; (2) what should it contain; and (3) how should it work in practice?

The Government's position

304. During the Prime Minister's statement on constitutional reform to the House of Commons on 3 July 2007, announcing the Government's intention to consult on the case for a Bill of Rights, he said:

… It is right to involve the public in a sustained debate about whether there is a case for the United Kingdom developing a full British Bill of Rights and duties, or for moving towards a written constitution. Because such fundamental change should happen only when there is a settled consensus on whether to proceed, I have asked my right hon. Friend the Secretary of State for Justice to lead a dialogue within Parliament and with people across the United Kingdom by holding a series of hearings, starting in the autumn, in all regions and nations of the country, and we will consult with all the other parties on this process.[264]

305. On 3 September 2007, the Prime Minister announced that:

…a Citizens' Summit, composed of a representative sample of the British people, will be asked to formulate the British statement of values that was proposed in our Green Paper on the future of government in Britain, a living statement of rights and responsibilities for the British people. It won't take root anyway unless there is a real sense that it has been brought forward by people themselves, and this will be part of the wider programme of consultation led by Jack Straw and Michael Wills on the British statement of values, the idea of a British Bill of Rights and Responsibilities, rights and duties, the components of the Constitutional Reform Bill…[265]

306. The Government has said that other engagement methods "might range from citizens' juries to deliberative polling and electronic and media-based outreach."[266]

Comparative experiences

307. The UK is not the only government to be embarking on discussions about a Bill of Rights. Two recent examples are Northern Ireland (where the process is ongoing) and some states in Australia (which have recently passed or are currently discussing federal Bills of Rights).

NORTHERN IRELAND

308. As Professor Brice Dickson, the former Chair of the Northern Ireland Human Rights Commission, told us, "many of the issues now arising for consideration concerning a British Bill of Rights had to be confronted in a Northern Ireland context".[267]

309. The Belfast (Good Friday) Agreement 1998 contemplates a Bill of Rights for Northern Ireland. In particular the Agreement requires the NIHRC:

… to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and - taken together with ECHR - to constitute a Bill of Rights for Northern Ireland.[268]

310. A broad public consultation process was launched by the NIHRC in 2000, consisting of nine independently chaired working groups, a publicity campaign, seminars, conferences, training and education sessions, international visits, meetings with political parties, NGOs and the voluntary and community sectors and a series of consultation documents. The NIHRC published draft proposals in its consultation document Making a Bill of Rights: A Consultation which formed the subject of widespread debate. In April 2004, the NIHRC published Progressing a Bill of Rights: An Update which contained draft advice and a proposed Bill of Rights. Again, the NIHRC received responses to the Progress Report.

311. The process is widely considered to have lost momentum in 2002/03.[269] This led to the establishment of the Northern Ireland Bill of Rights Forum, chaired by Professor Chris Sidoti. The Forum is an advisory body that was charged with making recommendations to the NIHRC on the content of a Bill of Rights by March 2008. It brought together the representatives of a broad range of political and civic society interests. The formal remit of Bill of Rights Forum was "to produce agreed recommendations to inform the Northern Ireland Human Rights Commission's advice to Government."[270] As Professor Sidoti told us, the Forum is "much more a political process, attempting to negotiate common positions" which builds on the public consultation carried out by the NIHRC.[271]

312. The Forum agreed five principles as the basis of its work:

"A Bill of Rights is needed to provide strong legal protection for human rights for all the people of Northern Ireland;
The Bill of Rights should be in accordance with universal human rights standards, reflecting the particular circumstances of Northern Ireland;
The Bill of Rights must be effective, realistic and implementable;
The Bill of Rights must address the needs of the poorest and most marginalised, recognising that, while the Bill of Rights is for everyone, assisting the poor and marginalised is the surest way of helping everyone;
While the past cannot be ignored but must be taken into account, the present spirit of optimism and hope should be reflected in the Forum's work and the Bill of Rights should be aspirational and look to the future."[272]

313. The Forum met 18 times in plenary session and had seven working groups on discrete issues, which met regularly between July 2007 and February 2008. According to Professor Sidoti, the Forum did "not have a consultation role but we are engaged in a fairly limited outreach programme" consisting of 4 half-time outreach workers.[273]

314. The Forum published its final Report on 31 March 2008. The Report focuses on seven main areas:

Equality
Personal integrity
Freedoms
Social and economic participation
Justice, including victims
Citizens' rights and
Rights particular to specific groups, including children and young people and women.[274]

315. The NIHRC is currently considering the Report. It has developed and published guidelines which will inform its discussion on what rights should be included in its advice to the Secretary of State for Northern Ireland, to whom it is due to make recommendations by 10 December 2008.[275]

316. The Committee on the Administration of Justice and British Irish Rights Watch, along with Professors Sidoti and Dickson, suggest that there is much to learn, both good and bad, from the experience gained in Northern Ireland.[276] As British Irish Rights Watch told us:

The unfortunate history of the Northern Ireland Bill of Rights process prior to the establishment of the Forum provides food for thought for anyone contemplating a Bill of Rights for Britain. Firstly, it tells us that the process is as important as the content … Secondly, that process must have the wholehearted backing of government and must be adequately resourced. Thirdly, content is also important … Fourthly, if there is one overriding lesson to be drawn from experience in Northern Ireland, it is that political expediency is a poor foundation on which to build a Bill of Rights.[277]

317. Discussions about a Bill of Rights in Northern Ireland have taken place against a very particular political background, which is not present throughout the UK. It would therefore not be appropriate for the UK Government to follow this model wholesale. However, there are positive aspects of the Northern Ireland approach which should be taken into account in designing the UK process, particularly its engagement with the public and its referral to an independent body for recommendations.

AUSTRALIA

318. A number of Australian states have enacted or are discussing federal Bills of Rights or human rights protection.[278] We consider the process leading to the Victorian Charter below.

Victoria

319. In the Australian state of Victoria, the Attorney-General issued a public statement that raised the possibility of a wide range of reforms to the justice system, including the desirability of a Charter of Rights and Responsibilities. A four person consultation committee was established[279] and held a six month consultation based on the government's preferred human rights model.

320. A number of consultation methods were used, including:

community meetings
information sessions
public forums
various specific consultations targeting groups such as the judiciary, indigenous people, religious organisations, business, the police, academics and lawyers.

321. Special attention was paid "to meet[ing] people who knew little or nothing about human rights and who might be the most alienated from the political and legal system" and particular material developed for young people.[280] The Chair of the Committee has described the meetings as follows:

These were not open town hall meetings, but meetings arranged through community organisations or in some cases through information provided via the local media. The meetings were structured so that a large part of the time was spent listening to people and what they though abut the issues, followed by us providing the basic information they needed to have a say. We then directed the conversation to questions we needed help in answering. At the end of each meeting we encouraged people to reflect on the discussion, to talk to other people in their families and workplaces and to make a submission to the committee in writing. We also made a commitment to read every submission we received.[281]

322. The Committee also issued a discussion paper, took written and oral evidence, and made extensive use of web and e-mail resources to distribute information and to consult. According to the Chair of the Committee, many people who would not have been prepared to attend a meeting or provide a written submission in the usual way were prepared to contribute evidence through online media.

323. Alongside the community process, the Justice Department set up an interdepartmental committee to shadow the process "so that as ideas emerged, but before our Report was written, departments had a chance to comment to make sure that our views were informed by current practice."[282]

324. This led to a summary document being published in several languages and a draft bill being prepared by the state's parliamentary counsel. This draft bill was enacted with minor modifications by the Victorian Parliament and most of it came into force on 1 January 2007. The process was therefore completed in just over a year.

325. The process in Victoria has been described by JUSTICE as a "good example of a thorough consultation which aimed at and succeeded in including all sections of society and generating a feeling of public ownership".[283] We are impressed by the innovative approach to consulting on the Victorian Bill of Rights, and in particular its focus on public engagement.

326. Whilst we accept that every country is different, we urge the Government to take into account the processes which were run in the state of Victoria and in Northern Ireland, which in our view had many merits, including the effective engagement of the public.

Minimum requirements of the process

327. In this section of the Report, we set out what we regard as the minimum requirements of the process for discussing a Bill of Rights, based on the evidence we have received and the comparative material reviewed.

BOTTOM-UP NOT TOP-DOWN

328. In February 2007 JUSTICE published a paper, A Bill of Rights for Britain: Discussion Paper which stated:

Any move to introduce a British Bill of Rights must start with a comprehensive public education campaign and a major consultation process, as happened in Northern Ireland. This is essential to obtain sufficient public awareness and consensus over its content. We consider that the bill in its final form should also be confirmed by a referendum.[284]

329. Many witnesses agree with the Government that the public need to be fully involved in discussions about a Bill of Rights.[285] As Democratic Audit explained, any Bill of Rights needs to be "a genuinely popular document."[286] Unlock Democracy told us:

… for the citizens to possess a constitution they need to have built it themselves.[287]

And:

Part of the process of public consultation is raising public awareness and understanding. The other part is legitimising a decision.[288]

330. However, Professor Vernon Bogdanor cautioned that "the danger is that the consultation is purely amongst the articulate."[289]

331. Whilst recognising the importance of public ownership, the Government does not yet appear to have a clear view of the process it intends to follow. When we asked for further information on what the consultation process would entail, the Justice Secretary replied that "details will be given in the Green Paper" but that he expected "the engagement process to start from the date of publication and run for several months".[290]

332. In oral evidence, the Justice Secretary said:

How do we engage people? First of all, we get a document out and start engaging Parliament. You then generate debate and this will have a ripple effect. You get people from the Women's Institute to the UK Youth Parliament to everybody else debating it and I will address my constituents in the town centre of Blackburn about it … It is inevitable that quite a number of these constitutional changes generate much more interest once they have been brought into force than they did beforehand.[291]

333. The Human Rights Minister has spoken about the Government's intention to introduce new processes of democratic engagement (such as a citizen's summit on the British Statement of Values) but he cautioned against measures which "pass[…] control of our democracy to the wealthy and powerful." He suggested that any mechanisms to engage people with democratic processes must fulfil five conditions to be successful: (1) register with the public; (2) be credible; (3) be open and transparent; (4) be systemic and (5) be consistent with representative democracy.[292] In his letter to the Committee, the Human Rights Minister referred to the need to engage with harder-to-reach constituencies and of his desire to reach a cross-party consensus.[293]

INCLUSIVITY

334. A number of different models for public engagement exist. From the evidence we have heard, and the experiences of other countries, it is clear that there is no single answer as to how best to run such a process. However, any process should strive for inclusivity, and be regionally, ethnically and culturally representative. According to Professor Brice Dickson, this was the main lesson to be learnt from the Northern Ireland experience.[294]

335. As Unlock Democracy put it:

The openness of the process, selection of participants and availability of opportunities for people to contribute, are key factors in whether the public buys into the process … If this process is going to be genuinely national, individuals must believe that they could have been selected to take part and that the participants represent them.[295]

336. We heard convincing argument from the Children's Rights Alliance for England that children should be involved in any consultation on a UK Bill of Rights.[296] The importance of involving children and young people is endorsed by the comparative experiences of Northern Ireland and Victoria. We recommend that children and young people should be included in the consultation on a Bill of Rights. As Claire Methven O'Brien told us, there is no "magic bullet" when aiming to consult difficult to reach groups.[297] Instead we heard that "whichever approach is used the process has to be deliberative, open, representative, and most importantly independent of Government and political parties."[298] A number of different processes may need to be run in tandem, with particular methods being used to target specifically harder to reach groups.

DELIBERATIVE TECHNIQUES

337. A number of witnesses pointed to the advantages of using deliberative techniques to consult on a matter such as a Bill of Rights.[299] For example, Unlock Democracy told us:

These mechanisms are effective because they allow participants to learn about the subject, quiz experts and develop an informed opinion rather than simply capturing an immediate view in an opinion poll or referendum. They recognise that different views and interests have to be balanced in society, and also enable people to change their minds.[300]

338. The Justice Secretary stated that:

Deliberative mechanisms can help involve a broad range of members of the public and harder to reach constituencies, because they can include a general sample of the population, but they also allow for a more thematic approach; so specifically targeting those groups (or their representatives) who might not normally take part in a Government led consultation.[301]

339. In Deliberative Public Engagement: Nine Principles, deliberative engagement is described as:

An approach to decision-making that allows participants to consider relevant information, discuss the issues and options and develop their thinking together before coming to a view.[302]

340. Some witnesses told us that people need to be able to set the agenda and raise issues, rather than responding to a set of pre-determined questions.[303] However, not all witnesses agreed that this was the appropriate model to follow. For example, Kenneth Clarke MP was content to have a traditional process of consultation. He told us:

I am afraid I think that normal consultation, of which I approve, tends to get a not-completely-representative set of responses but as long as you realise the responses you are getting are from articulate interest groups - and actually there are not any particular vested interest groups in this area - the response you get back tends to cover a range of issues.[304]

341. The Human Rights Minister said:

One of the keys to [consultation] will be not to plonk it down in front of people as we go round the consultation process in one big wodge of paper, but to produce a document and then consult on different bits of it because the different bits of the document will have different effects. They will not all have the same legal effect and the more that we can crystallise it and bring it home and root it in people's own experience like, for example, in relation to the YL case, the better it will be.[305]

342. In our view, the process for consulting the public should be deliberative. It is not sufficient for people to be asked for their views once, without any prior opportunity for thought and reflection. Proper consultation on matters such as constitutional reform requires people to be able to understand the issue first, before they embark in a serious discussion about it. People need to have an opportunity to continue to discuss their views with others over a defined period, and to change their minds in light of those discussions. Additionally, people need to be able to bring issues to the table, and not be entirely constrained by an agenda set centrally by Government.

INDEPENDENCE FROM GOVERNMENT

343. However, witnesses have noted that public consultation should involve more than deliberative techniques alone. For example, Professor Blackburn recommended that the question of a Bill of Rights should be referred to a "genuinely independent" commission with a membership "having the confidence of the political parties represented in Parliament."[306] Similarly, "deliberative techniques alone are insufficient - the assembly has to be seen to be independent and have the power to propose change."[307] The Victorian consultation was conducted by an ad hoc committee of four independent people.[308]

344. Designing such a process is not easy and requires some sophisticated thinking and advice from organisations with expertise in effectively engaging the public. This is not, in our view, a role for Government. We recommend that an existing specialist body (with expertise in engaging the public in meaningful discussions about important constitutional issues) be employed or an ad hoc committee be appointed to conduct an effective and innovative consultation process and make recommendations to the Government. In order to command public and political confidence in the outcome, the body must be independent of Government.

TIMING

345. The JUSTICE Report, A British Bill of Rights: Informing the Debate, advises:

Keep the process within a time limit. Momentum is crucial and support can dissipate quickly. A timeframe will maximise the chances of maintaining energy, commitment and discipline around the issue. A reason that the Victorian process in Australia worked was that it took place over six months with then another six or so months leading to the introduction of the law. The unlimited timeframe that has been established in Northern Ireland, for example, may have been less successful - even allowing for particular political circumstances in Northern Ireland - in encouraging crucial consensus.[309]

346. The period for public engagement should be time limited, but long enough to permit a proper engagement by the public with the key issues. We suggest that a period of six months to one year would be appropriate.

RESOURCES

347. Unlock Democracy described the innovative "cascading" process used to involve people in the Northern Ireland Bill of Rights Forum process,[310] but noted that "if we were to replicate the process and scale it up for a UK Bill of Rights there would need to be approximately 15,000 facilitators for the cascading element alone".[311] Another witness noted:

… legitimacy is directly related to the quantity of participation … whatever the scale of consultation, it will require the allocation of substantial public resources to be effective and to ensure equality of access to it. Resources should be available on a grant basis to local government and third sector organisations to support the contributions of people from less powerful socio-economic groups.[312]

348. The Justice Secretary said that the Bill of Rights process will be resourced from the wider Governance of Britain programme.[313]

349. Whilst we do not consider that the situation in the UK requires such an intense public consultation process as was carried out in Northern Ireland, nevertheless in our view, for the Bill of Rights process to be effective and have any legitimacy, it needs to be adequately resourced, in particular to ensure that harder to reach and less financially able or established groups or communities are able to contribute to the discussions in a meaningful way.

The role of Government

350. The Government has a number of specific roles to play at different stages of the process. We note that the Government intends to take the lead on the Bill of Rights programme. As the Justice Secretary told us:

We have to take the lead on it and we have decided to take the lead on it and we will see who follows. It will generate debate within parties as well as between parties. 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.[314]

351. We recommend that the Government lead the overall process for drafting a Bill of Rights, but not for engaging with the public.

NON-NEGOTIABLES

352. Many witnesses agreed that the starting point for any discussion of a Bill of Rights should be that it builds on and does not weaken existing human rights protection, for example:

… the process for discussing a Bill of Rights should be clearly premised on the fact that the rights protected by the Human Rights Act 1998 represent a non-negotiable baseline.[315]

353. We were reassured by the Justice Secretary's assurance that there would be no weakening of existing human rights protection if there were to be a Bill of Rights.[316]We consider that there are certain non-negotiables, such as this, which the Government should set out at the start of the process. We recommend that a set of guiding principles be drawn up to provide a basis for the work of the body conducting the consultation, and we suggest that they could say something along the following lines (all considerations canvassed in this Report):

The guiding principles are that any modern UK Bill of Rights must:

Build on the HRA without weakening its mechanisms in any way
Supplement the protections in the ECHR
Be in accordance with universal human rights standards
Protect the weak and vulnerable against the strong and powerful
Be aspirational and forward-looking
Apply to the whole of the UK geographically
Apply to all people within the UK
Provide strong legal protection for human rights
Enhance the role of Parliament in the protection of human rights.

354. Similarly, before the process for public engagement starts, the Government should set out its position on a range of key issues, as the state Government did in Victoria, in order to be clear about what is realistically achievable. Having concluded the public engagement process, the independent body should publish its recommendations to the Government. Following the report of the independent body, it would be a matter for the Government as to the next steps.

253 "The information in the Audit derived from the Political Engagement Poll undertaken by the Ipsos MORI Social Research Institute on behalf of the Hansard Society. Ipsos MORI interviewed a representative quota sample of 1,073 adults aged 18+ in Great Britain. Interviewing took place face-to-face, in respondents' homes, between 29 November and December 2007. The data have been weighted to the national popular profile." Hansard Society, Audit of Political Engagement 5, the 2008 Report with a special focus on the Constitution, (hereafter Audit of Political Engagement) p 8. Back

254 The Hansard Society concluded that 63% of people were "effectively neutral" as, in response to the question "thinking generally, to what extent are you satisfied or dissatisfied with [Britain not having a Bill of Rights]?" 21% responded that they did not know and 42% that they were neither satisfied nor dissatisfied. Audit of Political Engagement, p29. Back

255 Audit of Political Engagement, p 39. Back

256 Q 152. Back

257 Q 172. Back

258 Q 136. Back

259 Ev 99-100, 102, 136 & 145. Back

260 Mackenzie-Stuart lecture, 25 October 2007. Back

261 Modernising the Magna Carta, George Washington University, 13 February 2008. Back

262 Ev 155. Back

263 Q 104. Back

264 HC Deb, 3 July 2007, col. 815. Back