Conclusions and recommendations
Does the UK need a Bill of Rights?
1. We
agree with those who say that a high degree of consensus for a
Bill of Rights is desirable. We do not, however, think that there
need be unanimity about every aspect of a Bill of Rights. There
needs to be sufficient consensus across party lines to make the
process of adopting a Bill of Rights a truly constitutional event,
rather than a party political one. (Paragraph 25)
2. 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,
the Government should seek proactively to counter public misperceptions
about human rights rather than encourage them by treating them
as if they were true. (Paragraph 33)
3. 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. (Paragraph 34)
4. 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. (Paragraph 38)
5. 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. (Paragraph 42)
6. 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. (Paragraph 50)
7. 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. (Paragraph
51)
8. 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. (Paragraph 53) 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. We recommend
that that this unequivocal assurance is made the starting point
of any future consultation on a Bill of Rights. (Paragraph 54)
9. There
is 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. (Paragraph 56)
10. 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. (Paragraph 62)
11. 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
(Paragraph 63)
12. 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. (Paragraph
69)
13. Bills
of Rights are capable of emerging from deliberative processes
conducted in settled democracies in normal times. (Paragraph 73)
A "British" Bill of Rights on the Devolution
Dimension
14. 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. (Paragraph
84)
15. 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.
(Paragraph 88)
16. 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'. (Paragraph
93)
17. 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. (Paragraph 99)
18. 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. (Paragraph 104)
19. 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. 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. (Paragraph 107)
20. 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.
(Paragraph 110)
What should be included in a UK Bill of Rights?
21. 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. (Paragraph 114)
22. 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. (Paragraph 115)
23. The
list of values above [in paragraph 115] 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. (Paragraph 116)
24. 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. (Paragraph 117)
25. We
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. (Paragraph 118)
26. 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 in a UK Bill of Rights should, however,
ensure that only such demonstrably justifiable restrictions are
imposed. (Paragraph 127)
27. We
agree that [the right to administrative justice] is a strong candidate
for inclusion in a UK Bill of Rights as a nationally distinctive
right. (Paragraph 128)
28. 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. (Paragraph
132)
29. 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. (Paragraph 136)
30. 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. (Paragraph 137)
31. 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. (Paragraph
145)
32. 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. (Paragraph 146)
Economic and Social Rights
33. We
agree with the reasoning and conclusion of our predecessor Committee
that the case for developing domestic formulations of economic
and social rights as part of a UK Bill of Rights merits further
attention and our Report now picks up where its Report left off.
(Paragraph 157)
34. We
welcome the Prime Minister's acknowledgment that rights such as
the right to health are considered of fundamental importance to
people and his indication that the forthcoming consultation and
debate about a Bill of Rights would not seek to preclude discussion
of whether economic and social rights should be included in any
such Bill of Rights. (Paragraph 161)
35. We
welcome the Government's preparedness to reconsider its position
in relation to the inclusion of economic and social rights in
any UK Bill of Rights and its recent acknowledgment that there
is a continuum of possible positions. (Paragraph 164)
36. We
agree with the Government that including fully justiciable and
legally enforceable economic and social rights in any Bill of
Rights carries too great a risk that the courts will interfere
with legislative judgments about priority setting. Like our predecessor
Committee, we recognise that the democratic branches (Government
and Parliament) must retain the responsibility for economic and
social policy, in which the courts lack expertise and have limited
institutional competence or authority. It would not be constitutionally
appropriate, in our view, for example, for the courts to decide
whether a particular standard of living was "adequate",
or whether a particular patient should be given priority over
another to receive life-saving treatment. Such questions are quite
literally non-justiciable: there are no legal standards which
make them capable of resolution by a court. (Paragraph 167)
37. This
model [social and economic guarantees as goals] avoids the pitfalls
of the first model [legally enforceable rights] because it keeps
the courts out altogether. In our view, however, it risks the
constitutional commitments being meaningless in practice. When
some possibility of judicial enforcement exists, it is more likely
that the relevant rights will in practice receive respect. (Paragraph
169)
38. These
cases show that the South African Constitutional Court has steered
a middle path between the two models described above. It has expressly
rejected an approach which would require the State to provide
certain minimum standards of economic and social rights to all,
because it recognizes that the courts are ill-equipped to adjudicate
on issues where court orders could have multiple social and economic
consequences for the community. But at the same time it has recognized
that there is some, albeit restrained, role for the courts, namely
to require the state to take measures to meet its constitutional
obligations and to subject the reasonableness of those measures
to evaluation. In our view, the South African courts have shown
that the courts can be given a limited role in relation to social
and economic rights without becoming the primary decision makers.
(Paragraph 181)
39. In
our view the main objections to the inclusion of social and economic
rights in a Bill of Rights are not, in the end, objections of
principle, but matters which are capable of being addressed by
careful drafting. Having given the matter further attention, as
recommended by our predecessor Committee, we are persuaded that
the case for including economic and social rights in a UK Bill
of Rights is made out. We agree with Justice Albie Sachs who told
us during our visit to South Africa that a country which does
not include social and economic rights in some form in its Bill
of Rights is a country which has "given up on aspiration".
We consider that rights to health, education and housing are part
of this country's defining commitments, and including them in
a UK Bill of Rights is therefore appropriate, if it can be achieved
in a way which overcomes the traditional objections to such inclusion.
(Paragraph 191)
40. We
therefore put forward for consideration an approach which draws
inspiration from the South African approach to economic and social
rights, but which contains additional wording designed to ensure
that the role of the courts in relation to social and economic
rights is appropriately limited. The broad scheme of these provisions
is to impose a duty on the Government to achieve the progressive
realisation of the relevant rights, by legislative or other measures,
within available resources, and to report to Parliament on the
progress made; and to provide that the rights are not enforceable
by individuals, but rather that the courts have a very closely
circumscribed role in reviewing the measures taken by the Government.
(Paragraph 192)
41. We
recommend that any Bill of Rights should in the first place include
only rights to health, education, housing, and an adequate standard
of living, with a view to reviewing the experience after a period
and considering whether to add other social and economic rights
not currently included. (Paragraph 196)
42. We
also agree with the view of our predecessor Committee that rights
such as the right to adequate healthcare, to education and to
protection against the worst extremes of poverty touch the substance
of people's everyday lives, and would help to correct the popular
misconception that human rights are a charter for criminals and
terrorists. In our view, the inclusion of such rights in a UK
Bill of Rights would be far more effective in countering that
misperception than the Government's attempt to link rights with
responsibilities in the popular imagination. (Paragraph 197)
"Third generation rights"
43. In
our view there is a strong case to be made for including the right
to a healthy and sustainable environment in a UK Bill of Rights.
The briefest consideration of the status of the right in international
instruments and national constitutions shows that the right has
evolved into one which is clearly capable of legal expression.
We believe that a UK Bill of Rights should treat it as one of
the social rights for which a particular legal regime can be devised.
We recommend that the forthcoming consultation on a Bill of Rights
should expressly include the right to a healthy and sustainable
environment amongst the rights treated as candidates for inclusion
in a UK Bill of Rights. (Paragraph 210)
Relationship between Parliament, Executive and
the Courts
44. We
are not in favour of a Bill of Rights which confers a power on
the courts to strike down legislation. We consider this to be
fundamentally at odds with this country's tradition of parliamentary
democracy. In our view the innovative and widely admired parliamentary
model of human rights protection contained in the HRA is the appropriate
model of rights protection for our democracy. Within that model,
we consider that there is scope to enhance Parliament's role further,
at the same time as strengthening the protection provided for
human rights, as discussed below. (Paragraph 218)
45. A
UK Bill of Rights could make explicit (in a way that the HRA does
not) that Parliament continues to have the power of "legislative
override", by expressly declaring in an Act of Parliament
that the Act or any provision in it shall operate notwithstanding
anything contained in the Bill of Rights. (Paragraph 223)
46. To
enhance democratic scrutiny of the compatibility of a Government
measure with any Bill of Rights, the Bill could require Ministers
to provide full statements of compatibility, containing the reasons
for the Minister's view that a measure is compatible with the
Bill of Rights. It could also extend its application to Government
amendments to Bills and to other legislative measures such as
statutory instruments and Orders in Council. (Paragraph 226)
47. In
our view, suspended orders of invalidity would be at odds with
our constitutional traditions. However, the Bill of Rights could
seek to enhance Parliament's role following a declaration of incompatibility
by requiring the Government to bring forward a formal response
to Parliament within a defined timetable and to initiate a debate
on its response, to guarantee Parliament the opportunity to express
its view. (Paragraph 228)
48. The
Bill of Rights could also require the Government to come back
to court to account for what it has done to implement the court's
judgment where it has declared legislation incompatible. The outline
Bill provides for this. (Paragraph 229)
49. We
recommend that any UK Bill of Rights should provide for a five
yearly review and report to Parliament by an independent panel
of reviewers on the operation of the Bill. (Paragraph 232)
50. We
are not in favour of entrenching a UK Bill of Rights against future
amendment or repeal by requiring that any such amendments or repeal
must satisfy a special procedure, such as approval by a special
parliamentary majority or by the people in a referendum. In our
view such forms of entrenchment are not compatible with our tradition
of parliamentary democracy which has carefully preserved the freedom
of each Parliament to legislate according to its view of the public
interest (Paragraph 235)
51. We
therefore recommend that any UK Bill of Rights should follow the
HRA model of a strong interpretive obligation, applying to legislation
whenever enacted, entrenching the rights and freedoms against
implied repeal, but leaving Parliament free to pass incompatible
legislation if it makes it clear that that is its intention. We
also regard it as very important that the strength of the interpretive
obligation in the HRA is not diluted in any way in any UK Bill
of Rights. (Paragraph 238)
52. Derogation
from human rights in times of emergency is currently an essentially
executive function, performed under the executive's prerogative
powers and accompanied by no formal requirement that Parliament
be involved in any way, or any guaranteed opportunity of challenging
it in court. We recommend that in any UK Bill of Rights the opportunity
is taken to introduce parliamentary and judicial safeguards against
wrongful derogation from rights and freedoms and to spell out
clearly the conditions that would be required to be met in order
to justify a derogation. (Paragraph 242) We suggest a formulation
of such a clause in our outline Bill of Rights and Freedoms. The
clause would prescribe the conditions that have to be satisfied
for a state of emergency to be declared (e.g. a serious threat
to the life of the nation), and the criteria for any derogation
to be valid (e.g. derogation may only be to the extent strictly
required by the emergency and consistent with international obligations).
The clause could also enhance the role of Parliament in the process
by requiring that a state of emergency must be confirmed by Parliament
before any derogation from rights and freedoms in the Bill can
be made. It could also enhance Parliament's role by stipulating
a strict time limit on the duration of such a declaration of a
state of emergency and of any emergency legislation. (Paragraph
243)
53. We
welcome the Government's express recognition that a more diverse
judiciary with increased understanding of the communities it serves
will contribute to increased public confidence in the justice
system, which will be especially important in the context of a
UK Bill of Rights. We look forward to the Judicial Appointments
Commission giving practical effect to the widely shared view that
the pool of people from whom judicial appointments are currently
made is significantly widened as a matter of urgency. (Paragraph
249)
Responsibilities and duties
54. To
the extent that the Government's interest in "responsibilities"
balanced against rights is an attempt to reopen that argument
about public safety, it is misconceived, for the reasons we have
given in previous Reports. (Paragraph 262)
55. We
welcome the Government's apparently unequivocal acceptance that,
in the words of Michael Wills MP, "rights are not contingent
on discharge of responsibilities." We agree and regard this
as being of fundamental importance in this debate. Human rights
are rights which people enjoy by virtue of being human: they cannot
be made contingent on the prior fulfilment of responsibilities.
(Paragraph 264)
56. In
our view, by insisting on the importance of "responsibilities"
in any new Bill of Rights, Ministers tread a fine line between
educating the public on the one hand and giving sustenance to
the myths about the HRA which have been so damaging to that legislation.
As we have observed before, in our Reports on the DCA Review of
the HRA and our Annual Report for 2007, and in this Report in
relation to the Government's emphasis on "Britishness",
misperceptions about human rights should be countered by exposing
them as misperceptions. (Paragraph 266)
57. We
cannot see what purpose is served by articulating a responsibility
as general as the responsibility to obey the law, nor do we believe
that a Bill of Rights is the place to set out legal responsibilities
which are already legally binding on the individual. We do not
accept that educating people about their legal responsibilities
is an appropriate function of a Bill of Rights. (Paragraph 267)
58. It
seems to us that the Government is saying no more, than that rights
are capable of being limited by competing interests. That is already
provided for in the text of the ECHR and to the extent that it
is not appreciated, it is surely a matter for education of the
public rather than any attempt to amend the text or to redefine
in the text of any new Bill of Rights. (Paragraph 273)
59. We
are therefore strongly opposed to any UK Bill of Rights being
called either a Bill of Rights and Duties or a Bill of
Rights and Responsibilities. Rights should not be contingent
on performing responsibilities, nor should a Bill of Rights impose
enforceable duties on individuals or responsibilities which they
are already required by the general law to discharge. (Paragraph
274)
60. Responsibilities
often have some role to play in modern Bills of Rights, albeit
falling far short of directly enforceable duties. (Paragraph 279)
61. The
resolution of the YL problem in the HRA itself is relatively
straightforward and need not await the outcome of the Bill of
Rights process. (Paragraph 283)
62. Any
UK Bill of Rights should find a way of achieving what was originally
intended in the HRA, that is, binding private persons or bodies
performing a public function. (Paragraph 285)
63. We
recommend that any UK Bill of Rights should make clear the responsibility,
when performing a public function, to subordinate the manifestation
of a personal belief which would discriminate against, or undermine
the rights and freedoms of, others to the interests of those seeking
to access public services. (Paragraph 287)
64. We
recommend that any UK Bill of Rights should not include express
provision along the lines of the equivalent South African provision
giving full horizontal effect to the rights and freedoms in certain
circumstances. (Paragraph 292)
65. We
suggest two provisions which should ensure the indirect horizontal
effect of the rights and freedoms in the Bill. (Paragraph 293)
The first requires any court or tribunal interpreting any legislation
or applying the common law, so far as it is possible to do so,
to read and give effect to it in a way which is compatible with
the rights and freedoms in the Bill and which promotes the purpose
of the Bill. (Paragraph 294) The second includes the courts amongst
the bodies under a duty to act compatibly with the rights and
freedoms contained in the statement and to take active steps to
promote and fulfil those rights and freedoms. (Paragraph 295)
Process
66. 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. (Paragraph
301)
67. 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?
(Paragraph 303)
68. 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.
(Paragraph 316)
69. We
are impressed by the innovative approach to consulting on the
Victorian Bill of Rights, and in particular its focus on public
engagement. (Paragraph 324) 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. (Paragraph 325)
70. We
recommend that children and young people should be included in
the consultation on a Bill of Rights. (Paragraph 335)
71. A
number of different processes may need to be run in tandem, with
particular methods being used to target specifically harder to
reach groups. (Paragraph 335)
72. 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. (Paragraph
341)
73. 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. (Paragraph 344)
74. 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. (Paragraph 346)
75. 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. (Paragraph
349)
76. We
recommend that the Government lead the overall process for drafting
a Bill of Rights, but not for engaging with the public. (Paragraph
351)
77. We
consider that there are certain non-negotiables, such as no weakening
of existing human rights protection, 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. (Paragraph 353)
78. 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. Following the report of the independent
body, it would be a matter for the Government as to the next steps.
(Paragraph 354)
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