2. Memorandum from the British Institute
of Human Rights
1. The British Institute of Human Rights (BIHR)
is an independent human rights charity with a UK-wide remit. Our
focus is on the value of human rights ideas, laws and practice
to tackle inequality and promote social justice. We have three
main aims: (i) to lead the development of a fresh and ambitious
vision of human rights that encompasses the full range of internationally
recognised rights and is relevant to everyone in the UK, especially
the most marginalised people; (ii) to build the capacity of other
organisations to develop their own human rights practice that
helps them deliver more effective services and campaigns; and
(iii) to influence people with power to make this broader vision
of human rights an integral part of their policies and plans.
We do a range of policy, research and influencing activities and
we develop and deliver practical human rights supports (including
information, consultancy and training) for voluntary, community
and public sector organisations.
2. There is no doubt that the concept of a "British
Bill of Rights" is highly topical in political circles currently.
The Conservative Party has pledged to replace the Human Rights
Act with a "British Bill of Rights" that "we can
write ourselves that sets out clearly our rights and responsibilities",
while the Government in its recent "Governance of Britain"
Green Paper has foreshadowed a "British Bill of Rights and
Duties" that "would build on the basic principles of
the Human Rights Act, but make explicit the way in which a democratic
society's rights have to be balanced by obligations".
Against this backdrop, we are not surprised that the Joint Committee
on Human Rights has decided to launch its inquiry into a British
Bill of Rights. Nevertheless, we believe that the debate as it
stands to date has not been informed by an understanding of the
"basics" about human rights: what they are, who they
are for, and how they relate to all of our lives in Britain today.
We therefore urge the Joint Committee to play a role in ensuring
that any debate about further human rights legislation is informed
by a foundation of this kind.
3. BIHR is deeply concerned by a number of core
premises of the current political debate. For example, assumptions
are made that the Human Rights Act is not British, that it is
not a Bill of Rights, and that it ignores responsibilities. We
hope that the Joint Committee will consider each of these assumptions
4. BIHR feels strongly that the starting point
for debate about legal protection of human rights for people in
Britain must be an honest commitment to building on the existing
foundations provided by the Human Rights Act. We are pleased to
see the "Governance of Britain" Green Paper recognise
that the Act "provides a contemporary set of common values
to which all our communities can subscribe" in accordance
with "British values as old as Magna Carta".
It cautions against repealing the Act on the basis that it would
dilute British control over the application in Britain of rights
set out in the European Convention on Human Rights, which, the
green paper reminds us, was principally drafted by British lawyers.
This follows the Government's 2006 "Review of the Implementation
of the Human Rights Act" which concluded that the Act has
had "a positive and beneficial impact".
5. Reacting to a controversial human rights
case involving a man convicted of murdering head teacher Philip
Lawrence, the leader of the Conservative Party recently threatened
to "abolish" the Human Rights Act, warning, somewhat
inexplicably, that it "bypasses humanity".
However, an internal Conservative Party Commission continues to
examine a range of human rights issues, and we hope to see a more
sophisticated analysis emerge of the role that the Human Rights
Act plays in safeguarding individuals from an overweening state.
6. The value of the Human Rights Act is therefore
still contentious politically. In our view, this is symptomatic
of a deeper problemvery low public awareness of human rights
and the Human Rights Actand must be understood as such.
7. The Human Rights Act is a relatively new
piece of legislation and is still far from embedded. There are
many reasons for this. Unlike in many other countries, the Human
Rights Act was not born out of public debate. Instead of being
driven by demands from civil society, the Act emanated from a
commitment by a newly elected Government. CEHR Commissioner Jane
Campbell describes this as a "peculiar position" of
having "solid human rights foundations on paper" that
"do not seem to have reached people's hearts'.
8. The passing of the Act was not followed by
the establishment of a statutory body tasked with promoting the
Act and the core values it protects. Little guidance or support
has been available to those seeking to put the Act into practice.
As a result, the Human Rights Act has languished in the legal
domain, fuelling misperceptions that it is only useful for lawyers,
or for "chancers" seeking to frustrate our justice system.
The salience of these misperceptions in parts of the media, their
endorsement by some politicians, and poor provision to the public
of practical, accessible, and accurate information about human
rights make a dangerous context in which to hold a debate about
alternatives to the Human Rights Act. There is therefore a risk
that we end up with less rather than more protection.
9. BIHR therefore has grave concerns about the
context of the current Bill of Rights debate. We want to play
our part in ensuring that further discussions are informed by
evidence about the current state of human rights protection, promotion
and fulfilment in Britain today. Below we address some of the
specific questions asked by the Joint Committee.
Is a British Bill of Rights needed?
10. What we need is for people's human rights
to be promoted, protected and fulfilled in Britain. The UK has
worked hard internationally in the post- World War II period to
elaborate a set of universal human rights spanning the full set
of civil, political, economic, social and cultural rights. The
key question then is how best to implement these in the unique
11. The UK has no written constitution and for
many decades we had no specific human rights legislation. Pioneering
human rights work nevertheless occurred, but it lacked a broad
social traction in the absence of a domestic legal framework.
Individuals who felt their human rights had been breached in the
UK had to travel all the way to Strasbourg, France to have their
cases heard by the European Court of Human Rights, applying the
European Convention on Human Rights to which the UK is a party.
12. The Human Rights Act, adopted by Parliament
in 1998, was a milestone in efforts to "bring rights home"
by incorporating into domestic law most of the rights protected
by the European Convention. It offered a uniquely British solution
to the "dilemma" of parliamentary sovereignty, via a
mechanism that saw primary responsibility for human rights protection
shared across all three branches of government.
This "democratic dialogue" between the executive, the
courts and Parliament has been much lauded for its innovation
and effectiveness to date.
13. When the Human Rights Act was passed, the
Government described its hope that in addition to permitting human
rights cases to be heard in our domestic courts, the Act would
support a culture of respect for everyone's human rights. The
idea was that human rights would become a feature of everyday
lifeprinciples such as dignity, equality, respect, fairness
and autonomy would be used by individuals and groups to negotiate
improved public services, and by public service providers as a
tool to improve the quality of their services. Thus the Human
Rights Act would have its greatest impact not in our courts of
law, out of the reach of the public at large, but in the wider
community, especially in the hands of those who provide public
services and those who use them. Through this process, a culture
of respect for human rights would take root in the UK.
14. For this ambition of the Government's to
be realised, it was essential that practical information about
the Human Rights Act be made widely available to the public and
voluntary and community sectors, and the general public. In the
absence of a statutory body tasked with promoting human rights,
when the Act was introduced in 2000 there was some important activity,
but not enough. The Department for Constitutional Affairs (now
Ministry of Justice) developed guidance for public authorities,
and voluntary sector organisations such as BIHR provided capacity-building
and other crucial supports to public and voluntary and community
sector organisations. Over the past seven years, work has gradually
begun to develop but not to the extent needed to have an impact
across our society. The advent of the Commission for Equality
and Human Rights (CEHR) brings opportunities to build on this
work and for it to attain the necessary prominence and scale.
15. The CEHR represents a turning point in the
promotion, protection and fulfilment of human rights in Britain,
remedying the institutional vacuum at the statutory level that
has existed since the Human Rights Act entered into force. The
CEHR has responsibilities, among other things, to:
promote understanding of the importance
of human rights;
encourage good practice in relation
to human rights;
promote awareness, understanding
and protection of human rights; and
encourage public authorities to comply
with the Human Rights Act.
16. We believe it is premature to draw conclusions
now about what type of legal instrument will best protect human
rights in Britain when the work of exploring the potential of
the Human Rights Act is at such an early stage.
17. For example, a national consultative roundtable
meeting of voluntary and community sector leaders held jointly
by BIHR and the National Council for Voluntary Organisations (NCVO)
in November 2006 confirmed the enormous potential benefit of human
rights to the voluntary and community sector as a whole, but also
low levels of awareness and human rights capacity.
Until the general human rights capacity of the voluntary and community
sector is built, meaningful involvement of these organisations
and those they seek to work with and for in a specific human rights
debate about a Bill of Rights will be severely hampered. In so
far as this sector can also be a vital link to some of the most
excluded people, these groups" opportunities to take part
in such a discussion will also be limited.
18. Despite the large amount of work required,
there are already positive signs that diverse groups across society
are beginning to explore the potential of the Human Rights Act.
BIHR's work over the years to build the capacity of both public
and voluntary and community sector organisations to raise awareness
of the Act and, beyond this, to develop wider human rights based
approaches in their work (ie putting human rights principles into
practice), has consistently revealed an appetite for information
and practical support. We know from this experience that when
the ideas behind the Human Rights Act and its potential "beyond
the courtroom" are explained, any negative attitudes that
people may have about the Human Rights Act and human rights more
generally are quickly transformed.
19. Our recent report "The Human Rights
ActChanging Lives" showcases a range of ways in which
the Act has been used in practical, non-legal ways to secure positive
outcomes for younger people, older people, victims of domestic
violence, parents, asylum seekers, people living with mental health
problems, disabled people, and others facing discrimination, disadvantage
These examples provide a glimpse of how a culture of respect for
human rights, supported by the Human Rights Act, might begin to
20. The first "green shoots" of good
practice in relation to the Human Rights Act are also emerging.
Our "Human Rights in Healthcare" framework, developed
in partnership with the Department of Health and five NHS Trusts,
is one example of a practical human rights tool for public service
It has been very enthusiastically received in the healthcare sector
and beyond, and was recently described by the Joint Committee
as "one of the best pieces of practical guidance on the impact
of the HRA on public services that we have seen".
21. BIHR is actively engaged in developing,
with partners, a range of other projects aimed at "bringing
rights to life". These include a Human Rights in Schools
project and "Principles to Practice", a three year programme
aimed at building the capacity of voluntary and community sector
organisations to use human rights as a tool to be more effective
in delivering services, policy and campaigns. The positive responses
that are emerging from this work show a different side to the
"human rights story". In particular they demonstrate
the potential for human rights ideas, laws and practice to be
harnessed by organisations, helping them to achieve their goals
and especially to have an impact on discrimination and disadvantage.
22. We therefore believe that the pressing issue
is how to embed the Human Rights Act and achieve the culture of
respect for human rights it was meant to inspire. Only then can
we have a positive, meaningful debate about how best to build
upon the human rights protection it affords, via a new Bill of
Rights or otherwise.
What should be in a British Bill of Rights?
23. It is absolutely crucial that any new British
Bill of Rights does not fall below the minimum protections provided
by the Human Rights Act. To do so would cause an impractical "disconnect"
between our domestic system and our international obligations
under the European Convention on Human Rights, since a right to
take cases to the European Court of Human Rights would remain
in relation to any human rights "amputated" from our
24. It is worth reminding the Joint Committee
that these European obligations are "not negotiable"
as they are a term of our membership of the European Union. Nor
should they be negotiable, since the UK played a central role
in the development of these human rights standards and we have
campaigned long and hard for their adoption and realisation in
other states. It is inconceivable that we would renounce them
25. Ultimately, the question of which additional
rights to include in any British Bill of Rights must be decided
via a broad and participatory public debate. However, as explained
above, we believe that an effective debate of this sort is only
possible once organisations and individualsequipped with
practical, accessible and accurate informationhave had
more time to explore and assess what human rights are, how they
relate to their lives, and the potential of the Human Rights Act
not only in individual cases but more widely to bring about positive
26. Disquiet in the media and elsewhere that
the Human Rights Act promotes rights at the expense of responsibilities
and the interests of the community is emblematic of low levels
of awareness (and misinformation) currently. In fact, the notion
of responsibilities is central to the concept of human rights.
It is self-evident that human rights cannot be truly effective
unless "rights holders" fulfil their corresponding duties
to uphold the human rights of others. These duties are reinforced
by "positive obligations" on the state to protect people
from human rights violations caused by individuals and other non-state
actors. Indeed the interrelationship between human rights and
responsibilities is explicitly recognised in Article 29 of the
Universal Declaration of Human Rights which states that "Everyone
has duties to the community in which alone the free and full development
of his personality is possible".
27. The notion of responsibilities is also deeply
embedded in the Human Rights Act, for example in the requirement
that decision-makers (including the courts) consider the rights
and freedoms of others and the interests of the community, for
example the need to protect national security and public order,
when applying a wide range of rights including the right to respect
for private and family life, the right to freedom of expression,
and the right to manifest one's religion or belief. Poor understanding
of this must be tackled in any serious public debate about a British
Bill of Rights.
28. We have argued above that any British Bill
of Rights must build upon the minimum protections in the Human
Rights Act, and that any additional rights should be determined
via a public debate that is properly informed and inclusive. Without
pre-empting the outcome of such a process, there are strong arguments
for strengthening the minimum protections afforded by the Human
Rights Act. For example, to use a phrase coined by Stuart Weir,
Director of the Democratic Audit, the Human Rights Act is only
"half built" since it focuses on civil and political
rights and almost completely neglects economic, social and cultural
rights, in defiance of the international recognition that all
these rights are indivisible, interdependent and interrelated.
29. In our extensive experience of delivering
human rights supports including training to a wide range of public
bodies and voluntary and community organisations, economic, social
and cultural rights have a very strong resonance for people in
Britain. During the human rights training sessions we provide,
people from a range of backgrounds refer very frequently to rights
such as the right to health and an adequate standard of living
when asked what human rights are and what they "mean"
to them. They typically react with surprise and disappointment
when they learn that the UK's Human Rights Act does not in the
main protect these rights and that the UK has not otherwise "brought
these rights home" by making them part of domestic law. Grassroots
consultation in relation to a Northern Ireland Bill of Rights
has likewise confirmed the popular attachment to economic, social
and cultural rights. We believe on this basis that any truly participatory
public debate about a British Bill of Rights will result in calls
for domestic protection of economic, social and cultural rights.
30. It is very important to stress that human
rights by definition apply to all human beings. In the context
of the UK, this means they protect everyone within the UK's jurisdictionas
the former Lord Chancellor once remarked, to qualify for human
rights in the UK "you need to be human, and you need to be
here". It is crucial that this fundamental tenet of human
rightstheir universalityis not corrupted by an improper
conflation of human rights with citizenship rights.
31. BIHR believes that we need a public debate
about human rights and that this must involve a very wide range
of people in society, including, most importantly, people on the
margins whose human rights are often most at risk yet who have
the least say. Our programme, "Changing the Face of Human
Rights" is to be launched later in the year. Critically it
will involve a participatory inquiry that explores the relevance
and value of human rights and the Human Rights Act to people in
the UK generally. Partnership with a broad spectrum of organisations
capable of facilitating meaningful participation will be essential
to its success. In giving people the chance to have the far-reaching
public debate that did not happen when the Human Rights Act was
introduced, we hope to stimulate discussion and gather evidence.
This will help provide a foundation for a meaningful debate both
about how to make existing legal protections real and the scope
for further protections to be introduced.
31 August 2007
2 "Conservatives would abolish the Human Right
Act" 21.08.07 available at http://www.conservativefuture.com/news/conscom.cfm?obj_id=138115.
Last accessed 29 August 2007. Back
The Governance of Britain (July 2007), p 61. Back
The Governance of Britain (July 2007), p 60. Back
Review of the Implementation of the Human Rights Act (July 2006)
p 4. Back
"Conservatives would abolish the Human Right Act" 21.08.07
available at http://www.conservativefuture.com/news/conscom.cfm?obj_id=138115.
Last accessed 29 August 2007. Back
See in particular sections 3, 4 and 19 of the Human Rights Act
The report of this meeting is available at http://www.bihr.org/downloads/NCVO.pdf.
Last accessed 29 August 2007. Back
Available at http://www.bihr.org/downloads/bihr_hra_changing_lives.pdf.
Last accessed 29 August 2007. Back
Available at http://www.bihr.org/development/health.html. Last
accessed 29 August 2007. Back
Joint Committee on Human Rights, The Human Rights of Older People
in Healthcare, Eighteenth Report of Session 2006-07, p 38. Back
This was famously affirmed by the United Nations in the Vienna
Declaration and Programme of Action (1993). Back