Joint Committee on Human Rights - Twenty-Ninth Report

Joint Committee on Human Rights Twenty-Ninth Report

Annex 1: Outline of a UK Bill of Rights and Freedoms

This Annex sets out an outline Bill of Rights and Freedoms. The Bill broadly follows and adapts the basic structure of the Human Rights Act, which created a parliamentary model of human rights protection. The Bill aims to improve on that model, by giving Parliament an even more central role in the overall scheme. Annex 2 explains the clauses in the Outline Bill of Rights and Freedoms, and how its provisions might work in practice.

UK BILL OF RIGHTS AND FREEDOMS

Preamble

This Bill of Rights and Freedoms is adopted to give lasting effect to the values which the people of the United Kingdom of Great Britain and Northern Ireland, consider to be fundamental:

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

The Rights and Freedoms

1. In this Act the "rights and freedoms" means -

(a) the Civil and Political Rights and Freedoms set out in Schedule 1

(b) the Fair Process Rights set out in Schedule 2

(d) the Democratic Rights set out in Schedule 4

(5) the Rights of Particular Groups set out in Schedule 5.

Interpretation of the Bill of Rights and Freedoms

2. Any court, tribunal or other person or body interpreting this Bill of Rights and Freedoms

(a) must strive to achieve the purpose of the Bill and to give practical effect to the fundamental values underpinning it, as set out in the Preamble to the Bill;

(b) must pay due regard to international law, including international human rights law; and

Interpretation of legislation and common law

3. Any court, tribunal or other person or body interpreting any legislation (whenever enacted) or applying the common law (whenever laid down) must, so far as it is possible to do so, read and give effect to the legislation or common law in a way which is compatible with the rights and freedoms in this Bill and which promotes the purpose of the Bill as set out in the Preamble.

Power of Legislative Override

4. Parliament may expressly declare in an Act of Parliament that the Act or any provision in it shall operate notwithstanding anything contained in this Bill of Rights and Freedoms.

Limitation of Rights

5. The rights and freedoms contained in this Bill may be subject only to such reasonable limits, provided for by law, as can be demonstrably justified in a society based on the values of liberty, democracy, fairness, civic duty and the rule of law, and to the extent compatible with international human rights treaties to which the UK is a party, taking into account all relevant factors, including:

(a) the nature of the right;

(b) the importance and legitimacy of the purpose of the limitation;

(d) the relation between the limitation and its purpose; and

(e) the availability of less restrictive means to achieve the purpose.

Obligations

6. (1) The legislature, the executive, the judiciary, public authorities and any person or body in the performance of any public function must

(a) act compatibly with a right or freedom in this Bill of Rights and Freedoms and

(b) take active steps to respect, protect, promote and fulfil the rights and freedoms in this Bill.

(2) The factors which may be taken into account in determining whether a function is a public function include:

(a) the extent to which the state has assumed responsibility for the function in question

(b) the role and responsibility of the State in relation to the subject matter in question

(d) the nature and extent of any statutory power or duty in relation to the function in question

(e) the extent to which the state, directly or indirectly, regulates, supervises and inspects the performance of the function in question

(f) the extent to which the state makes payment for the function in question

(g) whether the function involves or may involve the use of statutory coercive powers

(h) the extent of the risk that improper performance of the function might violate a right or freedom in this Bill.

Impact assessments and statements of compatibility

7. (1) A member of Parliament who introduces a Bill into either House of Parliament must, before Second Reading of the Bill, lay before Parliament

(a) an impact assessment , assessing the impact of the Bill on the rights and freedoms protected in this Bill of Rights and Freedoms; and

(b) a statement of compatibility stating

(i) whether, in the member's opinion, the Bill is compatible with the rights and freedoms in this Bill and, if so, the reasons for that view; and

(ii) if, in the member's opinion, any part of the Bill is incompatible with any right or freedom in this Bill, the nature and extent of the incompatibility.

(2) The obligations in sub-section (1) also apply on tabling or making of

(a) Government amendments to Bills

(b) statutory instruments

Enforcement

8. Any person or body who has a sufficient interest in the matter may bring legal proceedings in the appropriate court or tribunal concerning the alleged breach of any right or freedom in this Bill of Rights and Freedoms.

Remedies

9. (1) Subject to (2) below, a court may grant to any person or body whose rights or freedoms under this Bill have been violated such remedy, within its powers, as it considers just and appropriate and necessary to provide an effective remedy.

(2) If a court is satisfied that a provision of primary legislation is incompatible with a provision of this Bill of Rights and Freedoms and cannot be interpreted compatibly, it must make a declaration of incompatibility.

(3) A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given.

Process following declaration of incompatibility

10. (1) Within 3 months of a final declaration of incompatibility, the Minister responsible for the relevant statutory provision must lay before Parliament a written statement explaining

(a) whether the Government agrees that the provision is incompatible with a right or freedom in this Bill;

(b) if it disagrees, its reasons for so doing;

(2) If the Government proposes to remedy the incompatibility, the Minister responsible for the relevant statutory provision must, within 6 months of the final declaration of incompatibility, lay before Parliament a written statement explaining in detail how the incompatibility will be remedied.

(3) A Minister of the Crown must, within six weeks of laying a statement under subsections (1) or (2) above, make a motion in both Houses to take note of the statement laid.

(4) The Minister may by order ("a remedial order") make such amendments to the legislation as are necessary to remove the incompatibility.

(5) The court which made the final declaration of incompatibility has the power to re-open the case in order to consider whether the incompatibility has been remedied.

Relationship with European Convention on Human Rights

11. (1) Rights and freedoms in this Bill which correspond with rights guaranteed by the European Convention on Human Rights shall be interpreted as having at least the same scope as the Convention rights.

(2) Nothing in this Article shall prevent rights and freedoms in this Bill being interpreted as providing more extensive protection than the corresponding Convention rights.

Relationship with other existing rights

12. Nothing in this Bill of Rights and Freedoms denies the existence or restricts the scope of any other rights or freedoms recognised or conferred by common law, statute or customary international law, to the extent that they are consistent with the rights and freedoms contained in this Bill.

Emergencies

13. (1) No derogation from any of the rights and freedoms in this Bill shall be lawful unless a state of emergency has first been declared and confirmed by Parliament.

(2) A state of emergency may be declared only when there is a public emergency threatening the life of the nation.

(3) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from any right or freedom in this Bill only to the extent that the derogation is strictly required by the emergency and is consistent with the UK's other international obligations.

(4) Any person or body who has a sufficient interest in the matter may bring legal proceedings in the appropriate court or tribunal challenging the validity of:

(a) a declaration of a state of emergency; or

(b) any legislation enacted, or other action taken, in consequence of a state of emergency.

(5) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, shall be effective only

(a) prospectively from the date of the Act of Parliament making the declaration; and

(b) for no more than three months from the date of the declaration.

(6) No legislation enacted in consequence of a declaration of a state of emergency may permit or authorise any derogation from the non-derogable rights listed in Schedule 1.

Prohibition of abuse of rights

14. Nothing in this Bill of Rights, Freedoms and Responsibilities may be interpreted as implying for any person, group or body any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth in this Bill or at their limitation to a greater extent than is provided for in this Bill.

Parliamentary Review

15. (1) The Secretary of State for Justice shall appoint an independent panel of reviewers of the operation of this Bill of Rights and Freedoms.

(2) The independent panel shall conduct a review of the first 5 years of operation of this Bill of Rights and Freedoms and lay its report before Parliament.

Schedule 1 - Civil and Political Rights and Freedoms

Equality
Dignity

Life
Physical and mental integrity
Freedom from torture and inhuman or degrading treatment or punishment
Freedom from slavery and forced labour
Liberty
Private and family life, home and communications
Freedom of thought, conscience and religion
Freedom of expression
Freedom of association
Right of assembly and demonstration
Right to marry
Right to found a family
Property
Freedom of movement and residence
Right to asylum

Schedule 2 - Fair Process Rights

Rights of arrested and detained persons
Right to a fair criminal trial
Right of access to court
Right to legal representation
Right to a fair hearing
Right to effective remedy
Right of access to information
Right to fair and just administrative action

Schedule 3 - Economic and Social Rights

Duty of progressive realisation

The Government must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the rights in this schedule.

Duty to report to Parliament

The Government shall report annually to Parliament on the progress made during the previous year in realising the rights in this schedule.

Parliament to determine eligibility

Eligibility for the rights in this schedule on grounds of nationality, residence or other status shall be determined by Parliament in primary legislation, subject to the rights in schedule 1.

Justiciability

(1) The rights in this schedule are not enforceable by individuals against the Government or any public authority.

(2) The rights in this schedule are justiciable only to the extent that they are relevant to:

(a) the interpretation of other legislation, or

(b) the assessment of the reasonableness of the measures taken to achieve their progressive realisation.

Judicial review

When evaluating the reasonableness of the measures taken by the Government to achieve the progressive realisation of the rights in this schedule, the courts shall have regard to the following relevant considerations:

(a) the availability of resources

(b) the latitude inherent in a duty to achieve the realisation of the rights progressively

(d) the fact that a wide range of measures is possible to meet the Government's obligations

(e) the availability of an alternative means of realising the rights is not, of itself, an indication of unreasonableness

(f) whether the measures include emergency relief for those whose needs are urgent

(g) whether the measures are discriminatory

(h) whether the measures have been effectively made known to the public

(i) whether the measures are capable of facilitating the realisation of the relevant rights

(j) whether any deprivation of existing rights is demonstrably justifiable in accordance with s. 5 of this Bill (Limitation of Rights).

Health care

Everyone has the right to have access to appropriate health care services, free at the point of use and within a reasonable time

No one may be refused appropriate emergency medical treatment

Education

Everyone of compulsory school age has the right to receive free, full-time education suitable to their needs.

Everyone has the right to have access to further education and to vocational and continuing training.

Housing

Everyone has the right to adequate accommodation appropriate to their needs.

Everyone is entitled to be secure in the occupancy of their home.

No one may be evicted from their home without an order of a court.

An adequate standard of living

Everyone is entitled to an adequate standard of living sufficient for that person and their dependents, including adequate food, water and clothing

Everyone has the right to social assistance, including care and support, in accordance with their needs.

No one shall be allowed to fall into destitution.

A healthy and sustainable environment

Everyone has the right to an environment that is not harmful to their health.

Everyone has the right to information enabling them to assess the risk to their health from their environment.

Everyone has the right to a high level of environmental protection, for the benefit of present and future generations, through reasonable legislative and other measures that -

(i) prevent pollution and ecological degradation;

(ii) promote conservation and

(iii) ensure that economic development and use of natural resources are sustainable.

Schedule 4 - Democratic Rights

Right to free and fair elections
Right to vote and to stand as a candidate at elections
Right to participate in public life
Citizenship

Schedule 5 - Rights of Particular Groups

Children
Minorities
People with disabilities
Victims of Crime



© Parliamentary copyright 2008	Prepared 10 August 2008