Joint Committee on Human Rights Written Evidence

10.  Memorandum from Democratic Audit


  Democratic Audit failed to notice that the Joint Committee on Human Rights had issued a call for evidence on proposals for a British Bill of Rights. We apologise for the lateness of this submission which we have kept short to facilitate the Committee's consideration.

  Democratic Audit is a research organisation attached to the Human Rights Centre, University of Essex. Our primary function is to "audit" the quality of democracy and human rights in the United Kingdom against a democratic framework. This framework has been adopted by the inter-governmental International Institute for Democracy and Electoral Assistance (IDEA), and by the UNDP, governments, universities and civil society organisations in 24 countries around the world for the purpose of evaluating their democratic arrangements. Professor Paul Hunt, of the Department of Law, Essex, and the UN Rapporteur on the Right to Health, is chairman of the Audit Board; and Dr Todd Landman, of the government department at Essex, and head of the joint Essex-IDEA "State of Democracy" programme, is deputy chair.

1.   Is a British Bill of Rights needed?

  Yes. In our experience, the Human Rights Act has in practice been bedding down satisfactorily, except that both media and political comment have distorted public perceptions of its role. We also understand that research for the Equality and Human Rights has found that the idea of "human rights" is unpopular while there is public backing for the substance of the rights that the Act protects.

  It is established that the real protection of human rights, or civil liberties, depends ultimately on having the support of the public. Civil society organisations can of course act to promote and protect human rights, but they do not have the purchase on public opinion sufficient to counter ill-informed and biased commentary in popular sections of the media.

  The HRA was introduced almost by stealth. The then government shirked the task of explaining and popularising its contents, let alone consulting the public in advance and engaging their participation. Thus it never commanded sufficient popular support to withstand media campaigns and misrepresentations, nor the political view that it represents an alien curb on the UK's autonomy.

  There is therefore in our view an urgent need to create an informed and involved public engagement in framing a "Bill of Rights" so that it commands popular support; and the use of the familiar title, "Bill of Rights", and what it stands for in the popular imagination should facilitate this engagement. Opinion polls repeatedly show high levels of popular support for a "Bill of Rights". But it is important that there should be no dilution of present protections under the Act and that these protections should primarily be enforced in the British courts and not at Strasbourg.

  The purpose of a British Bill of Rights would be two-fold; in the first instance to gain public support for such an instrument through inclusive and extensive consultation; and secondly, through free and deliberative debate in Parliament to consider and act upon the wishes of those consulted in respect of the rights and freedoms that such an instrument should protect. Any future Bill of Rights should be a genuinely popular document that entrenches certain principles and values that Parliament cannot alter and yet affords the democratically elected legislature a key role in establishing the rights it contains.

  Democratic Audit has been "auditing" democracy in the UK since 1992 and has come to the conclusion, through three successive audits and a series of specific research reports, that the United Kingdom requires a written constitution. We therefore see an additional value in establishing a Bill of Rights as a major component of a written constitutional settlement in this country, especially if the measure were given a higher status than that of an ordinary statute.


  Democratic Audit has reservations about aspects of the government's approach. We are not sure how we should construe the addition of "British" to the rubric. We would be reassured if it is merely advanced as a way of giving an inclusive sense that the new measure is "owned" by the various publics and communities of the United Kingdom. However, we believe that it would be detrimental to social cohesion in this country if it becomes a signal of rejection of "European" or minority rights or values, and profoundly wrong if it in any way reduces the universality of human rights for non-citizens resident here.

  Equally, the addition of "responsibilities" or "duties" to he putative title gives rise to concern. Once again, if this is a way of signalling the significance of responsibilities in the existing Act and the European Convention, then so be it. Better still, it could encourage government to spell out the state's responsibilities to citizens and residents. However, though vaguely, the intention seems to be to go beyond the responsibilities inherent in the approach of the HRA and in human rights instruments generally and to set out the duties of citizens to "society" or in effect to the state. How such duties will be enforced is quite unclear. As Professor Keith Ewing has recently asked, Will they be directly enforceable against those who owe the duty, and if so by whom? Ewing reviews some examples of citizens' duties to the state, the most striking of which are set out in Articles 39 to 69 of the 1997 USSR Constitution.

2.   What should be in a British Bill of Rights?

  A British Bill of Rights must obviously continue to protect the civil and political rights set out in the Human Rights Act and not seek to resile from any of them through qualifications. But there are ways in which it could go further:

(a)   Traditional and common law rights

  As JUSTICE suggests in Informing the Debate, the right of access to the courts could be made more robust, given the differences between continental and British legal systems, and this right ought also to give protection to the legal aid scheme that is being dangerously undermined. Trial by jury is an archetypal "British right" that is not fully protected under the European Convention's provisions for "fair trial". It is of course the case that the great majority of criminal cases are heard by magistrates without juries, but parliamentary and public opinion strongly support trial by jury in serious cases (see, for example, the Rowntree State of the Nation poll, 2006).

(b)   Social, economic and cultural rights

  Democratic Audit's framework for assessing the quality of democracy in any country includes include social and economic rights, such as to health, housing and education, on the grounds that they are integral to modern liberal and inclusive democracy. This framework has been adopted by the International Institute for Democracy and Electoral Assistance and two dozen nations around the world. Civil and political rights, the building blocks for democratic engagement, require the existence of social, economic and cultural protections to be workable. The UK government's position is that "all human rights are universal, indivisible, interdependent and interrelated", but alas, it is a position for export only.

  It is increasingly recognised in this country that social and economic rights are vital to democratic well-being; the JCHR's report on compliance with the United Nations Covenant on Economic, Social and Cultural Rights made an important contribution to this growing recognition. We do not mean here to travel again on the roundabout of argument in the face of the government's intransigence on their incorporation into British law (see Unequal Britain, Politico's, 2006 for our full statement). But we do wish to make several comments:


    A series of ICM polls for the Joseph Rowntree Reform Trust's State of the Nation have shown public support for the inclusion of social and economic rights in a Bill of Rights; and the experience of consultations in Northern Ireland on a Bill of Rights for the province has borne these indicative findings out in practice;


    It is said that social and economic rights are not "justiciable", but this is evidently not the case:

      —  Some social and economic rights are already guaranteed in the UK by EU laws and directives, with the European Court of Justice as the final arbiter; and a range of domestic statutes and the HRA itself provide limited protection to such rights in the public sphere;

      —  Certain social and economic rights, especially those relating to trade union and workplace matters, do not engage major issues of provision (ie, state investment in education or housing) are not fully protected currently in the UK, although they are equally as "justiciable" as protected civil and political rights;

      —  As under the UNCESCR doctrine of progressive realisation, employed in South Africa, the courts are not asked to issue immediate orders that would usurp the government's role, but instead pass judgment on the seriousness of government plans over time to provide for housing, education, health care, etc. This provision encourages the type of "dialogue" between the executive and courts that is developing slowly under the HRA; and

      —  It is said that judges do not have the knowledge or expertise to rule on often complex and costly public programmes for housing, education, etc. The South African judge Albie Sachs has one answer to such arguments—that is, they are experts on human "dignity", the law and human rights; and they can of course develop judicial review to hear expert evidence.


    It is argued that giving the courts the power to review and protect social and economic rights would replace the democratic rule of elected government with rule by unelected judges. This is a crude and wrong-headed argument. The point of giving people social and economic rights is to give them some power over public decisions that affect their lives. Our imperfect electoral and other arrangements tend to deny the majority of people any such power or influence. At best it may be said that the most vulnerable groups in our society—those who most need social and economic provision—have to rely upon the good will of the governing party at any one time. The recognition of social and economic rights may empower the judiciary, but more importantly, it would empower citizens, who may be in need of redress; or sufficient state provision, to use the courts to assert their rights to housing, education, health, care, etc; or simply to the basic necessities of life.


    Debate about the effects of the HRA and its extension into social and economic rights concentrates almost wholly on what happens in the courts and in Parliament. The British Institute for Human Rights has demonstrated in practice that the HRA's provisions can be used outside the court-room to protect the dignity and rights of vulnerable people (see the BIHR report, The Human Rights Act—Changing Lives).


    The right to a clean and healthy environment has become an increasingly important social and economic issue that affects not only the current population of the United Kingdom, but through the phenomenon of global warming and pollution, the citizens of nations around the world; and it is of course an issue that affects future generations as well as our own. France and South Africa are two nations that have given constitutional protection to the environment.

(c)   Children's rights

  The JCHR has already addressed the question of children's rights in a report on the UJN Convention on the Rights of the Child (CRC). The European Convention, and hence the HRA, and gave support for the CRC's incorporation into British law. As the JUSTICE report, cited above, states, the current legal framework in the UK fails to protect children's rights adequately.

(d)   Weaknesses in the HRA

  Judicial rulings have in part weakened the beneficial effects of the HRA. Two rulings are of particular significance and their negative effect could be remedied in any revision of the HRA. First, the law lords held in the case of Marper and LS, July 2004, that the inclusion of innocent people on the national DNA register does not violate their right to privacy, as the "interference" is "very modest indeed". The "interference" is made worse by the fact that an unspecified may be able to access the database over time. This is one aspect of privacy that is of far greater importance than media reports on the lives of the rich and famous. In our view the CHR ought to initiate a debate on how far Article 8 of the Convention is able to protect the privacy of the individual in relation to surveillance and data protection. Secondly, in Southern Cross Nursing Homes, June 2007, the law lords ruled that the Human Rights Act does not apply to private care homes in England and Wales, even when they are performing a public function. This ruling leaves unprotected large numbers of people requiring care who are placed by public authorities in private care homes.

  Finally, there is the issue of derogation. Most bills of rights and international human rights instruments give executives the power to suspend certain human rights obligations in a national emergency. Such a time is also of course when civil liberties are most at risk. Most bills of rights therefore lay down strict conditions and safeguards in the derogation process. In the UK, the government can turn to its royal prerogative powers to derogate from its obligations under the European Convention without any form of parliamentary control, as it did in its derogation from Article 5, the right to liberty, after 9/11 (the only Council of Europe member state to have done so). The government's green paper, The Governance of Britain, recognises that this anachronistic hang-over from monarchical rule is in need of reform. A British Bill of Rights should strengthen protections against amendment of its provisions and set in place a parliamentary process for the acceptance or rejection of proposed derogations with clear rules for the conditions in which derogation may be permissible. But we also urge the JCHR to take up this issue in relation to the European Convention and Human Rights Act in any consultations about the royal prerogative.

13 March 2008

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