Joint Committee on Human Rights Twenty-Ninth Report

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)


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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