Joint Committee on Human Rights Written Evidence


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",[2] 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".[3] 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 very critically.

  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".[4] 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]

  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".[6] 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 problem—very low public awareness of human rights and the Human Rights Act—and 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 British context.

  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.[7] 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 life—principles 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.[8] 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 Act—Changing 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 and exclusion.[9] These examples provide a glimpse of how a culture of respect for human rights, supported by the Human Rights Act, might begin to take root.

  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 providers.[10] 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".[11]

  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 domestic law.

  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 now.

  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 individuals—equipped with practical, accessible and accurate information—have 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 social change.

  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.[12]

  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 jurisdiction—as 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 rights—their universality—is 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

3   The Governance of Britain (July 2007), p 61. Back

4   The Governance of Britain (July 2007), p 60. Back

5   Review of the Implementation of the Human Rights Act (July 2006) p 4. Back

6   "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

7   See in particular sections 3, 4 and 19 of the Human Rights Act 1998. Back

8   The report of this meeting is available at http://www.bihr.org/downloads/NCVO.pdf. Last accessed 29 August 2007. Back

9   Available at http://www.bihr.org/downloads/bihr_hra_changing_lives.pdf. Last accessed 29 August 2007. Back

10   Available at http://www.bihr.org/development/health.html. Last accessed 29 August 2007. Back

11   Joint Committee on Human Rights, The Human Rights of Older People in Healthcare, Eighteenth Report of Session 2006-07, p 38. Back

12   This was famously affirmed by the United Nations in the Vienna Declaration and Programme of Action (1993). Back


 
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