Joint Committee on Human Rights Twenty-Ninth Report


Annex 2: Explanatory Notes to the Outline Bill of Rights and Freedoms


Preamble

The purpose of the Preamble is twofold:

(1) to state the purpose of adopting a modern UK Bill of Rights and Freedoms, and

(2) to articulate the values on which the Bill of Rights and Freedoms is founded, and to give those values a nationally distinctive interpretation.

1. The Rights and Freedoms

The Bill of Rights and Freedoms contains the provisions concerning how it operates in practice, and the Schedules contain the Rights and Freedoms themselves. The schedules contain indicative lists of the rights and freedoms which might be included in a UK Bill of Rights.

2. Interpretation of the Bill of Rights and Freedoms

This clause would require a purposive interpretation of the Bill of Rights and Freedoms by requiring anybody interpreting the Bill itself (including judges) to strive to achieve its purpose and to give practical effect to the values underpinning it, as set out in the Preamble.

The interpretation clause could also seek to further the UK's tradition of internationalism by requiring anybody interpreting the Bill of Rights and Freedoms to pay due regard to international law, including international human rights law, and to consider relevant foreign and international judgments.

3. Interpretation of legislation and common law

A strong interpretation clause could seek to make the values underlying the Bill of Rights and Freedoms the touchstone of all law, by requiring anybody interpreting other law (e.g. statutes and case-law) to do so in a way that is compatible with the Bill of Rights and Freedoms, so far as it is possible to do so.

4. Power of Legislative Override

This clause could make explicit (in a way that the Human Rights Act 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 and Freedoms. The Canadian Charter of Rights and Freedoms has an equivalent provision.

5. Limitation of Rights

The Bill of Rights and Freedoms could have a "general limitation clause" which makes clear that rights can be limited in the general interest, but only if such limitations are shown to be justified by reference to the underlying values identified in the Preamble. It also spells out the relevant factors which are to be taken into account when carrying out the balancing exercise that the clause requires.

6. Obligations

(1) would impose an obligation to act compatibly with the Bill of Rights and Freedoms on the legislature, the executive, the judiciary, public authorities and any person or body in the performance of a public function.

(2) would define "public function" in a way which ensures that private organisations providing services under a contract with a public authority are caught by the obligation, and so closes the loophole opened up by judicial interpretation of the Human Rights Act contrary to Parliament's clear intention at the time. It retains the approach in the HRA of a functional test to be applied by the courts on the facts of each case, but tries to provide more explicit guidance for that exercise by listing the factors that may be taken into account by courts when deciding whether a function is a public function. The factors listed are taken from the dissenting judgments of Lord Bingham and Baroness Hale in YL and from the judgment of Lord Nicholls in the Aston Cantlow case. This is the approach which has been adopted by the Australian State of Victoria in its 2006 Charter of Rights and Responsibilities (though the factors listed there are different).

The clause could also seek to give better effect than the Human Rights Act does to the "positive obligations" imposed by rights: that is, the requirement that the State take active steps to ensure that the rights in the Bill of Rights and Freedoms are effectively secured for everyone. The clause does this by imposing an obligation on the State to take appropriate steps to secure effective protection for the rights and freedoms in the Bill.

7. Impact assessments and statements of compatibility

The Bill of Rights and Freedoms could take the opportunity to improve on the information provided to Parliament about whether a measure is compatible with the Bill. Under s. 19 of the Human Rights Act ministers merely have to sign a certificate of compatibility. There is no requirement to give reasons for the minister's view. To enhance democratic scrutiny of the compatibility of a Government measure with the Bill of Rights and Freedoms, this clause could require any member of Parliament introducing a Bill to provide an impact assessment and a full statement of compatibility, containing the reasons for the member's view that a measure is compatible with the Bill of Rights and Freedoms, and extend its application to Government amendments to Bills and to other legislative measures such as statutory instruments and Orders in Council.

8. Enforcement

This clause would define who would be entitled to bring legal proceedings concerning the alleged breach of any provision in the Bill of Rights and Freedoms. The Human Rights Act restricts this to those who are "victims" of Convention violations. Other jurisdictions (e.g. South Africa) use a wider test closer to the "sufficient interest" test which governs who can apply for judicial review against public authorities. This clause could use the same test as already applies to judicial review, in the interests of making the rights contained in the Bill more practically accessible to those without the resources to litigate on their own behalf.

9. Remedies

This clause would define the remedies available to a person whose rights or freedoms in the Bill have been unjustifiably interfered with. The clause could broadly follow the equivalent provisions of the Human Rights Act, giving courts and tribunals the discretion to award such remedy, within its powers, as it considers just and appropriate and necessary to provide an effective remedy. It could also provide for a declaration of incompatibility where primary legislation is incompatible, and for such legislation to continue in force notwithstanding the declaration of incompatibility.

10. Process following declaration of incompatibility

The Bill of Rights and Freedoms could seek to enhance Parliament's role following a declaration of incompatibility. Under the Human Rights Act it is up to the Government to decide whether to remedy a judicially declared incompatibility and if so, how. This clause could give Parliament a greater role by requiring the Government to bring forward a formal response to Parliament within a defined timetable, to guarantee Parliament an opportunity to express its view. It could also provide for the court which made the declaration of incompatibility to re-open the case to consider whether the incompatibility has been remedied.

11. Relationship with European Convention on Human Rights

This clause would address the relationship between the Bill of Rights and Freedoms and the ECHR, making clear that where rights or freedoms in the Bill correspond to rights in the ECHR they must be interpreted as having at least the same scope as the ECHR rights, but that rights or freedoms in the Bill can be interpreted as providing more extensive protection than corresponding ECHR rights: in other words, that the ECHR is "a floor not a ceiling."

The clause would also make clear that limitations on rights or freedoms in the Bill under the general limitation clause could not be more extensive than limitations which are permissible under the ECHR.

12. Relationship with other existing rights

This clause would address the relationship between the Bill of Rights and Freedoms and other existing rights, making clear that nothing in the Bill denies the existence or restricts the scope of existing rights or freedoms already recognised by statute, common law or customary international law.

13. Emergencies

The purpose of this clause would be to make clear that certain rights in the Bill of Rights and Freedoms can be derogated from in situations of emergency, but the clause could seek to enhance the role of Parliament in the process by requiring that a state of emergency must first be declared and confirmed by Parliament before any derogations from rights or 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.

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).

14. Responsibility not to abuse rights

This clause would lay down a clear responsibility on the holders of rights not to abuse those rights by making clear that nothing in the Bill of Rights and Freedoms implies any right to do anything aimed at the destruction of any of the rights and freedoms in the Bill or at their limitation to a greater extent than is provided for in the Bill. The ECHR contains a similar provision which has been relied on by the Court of Human Rights when upholding, for example, convictions for the offence of incitement to racial hatred.

15. Parliamentary review

This clause provides for an independent review of the operation of the Bill of Rights and Freedoms after five years, to be laid before Parliament.

Schedules

This part of the Bill contains the substantive rights and freedoms.

The rights and freedoms could be divided into five broad groups:

  • Civil and political rights and freedoms
  • Fair process rights
  • Economic and social rights
  • Democratic rights
  • Rights of particular groups



 
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