Annex 2: Explanatory Notes to the Outline
Bill of Rights and Freedoms |
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
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
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.
(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
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.
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.
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
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
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.
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
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.
This part of the Bill contains the substantive rights
The rights and freedoms could be divided into five
- Civil and political rights
- Fair process rights
- Economic and social rights
- Democratic rights
- Rights of particular groups