12. Memorandum from the Equality and
Human Rights Commission
DOES BRITAIN
ALREADY HAVE
A BILL
OF RIGHTS?
1. Before considering the opportunities and
challenges in formulating a bill of rights in the 21st century,
it is helpful to reflect on the rich tapestry of Britain's constitutional
arrangements. No consideration of this topic would be complete
without reference to, at least, the Magna Carta, the 1689 Bill
of Rights and the Human Rights Act 1998. Given this range of significant
constitutional documents, it is appropriate to ask: does Britain
already have a bill of rights? In answering this question, it
is helpful to refer to the jurist Philip Alston, an internationally
renowned bill of rights expert, who has outlined three common
characteristics for a bill of rights:
— it provides protection for those
human rights which are considered, at a given moment in history,
to be of particular importance;
— it is binding upon governments and
can only be overridden with significant difficulty; and
— it provides some form of redress
in the event that violations occur.[47]
2. Applying these criteria in the UK, the Magna
Carta and the 1689 Bill of Rights constitute bills of rights for
the UK. These instruments continue to inform values and legal
tradition even if they rarely provide a specific basis for litigation.
3. The modern law of rights in Britain is rooted
in the United Nations Universal Declaration of Human Rights (UDHR)
of 1948. The UDHR formed the basis for the European Convention
on Human Rights (ECHR), which was adopted by the Member States
of the Council of Europe in 1950.[48]
The ECHR represented the first step for the detailed enforcement
of many of the rights set out in the UDHR.
4. In 1966 the UK agreed to permit those alleging
breaches by the UK state the right of individual petition to the
European Court of Human Rights. At that moment, applying the Alston
criteria, arguably the UK had effectively established a bill of
rights, but it was off-shore.
5. Given that the enforcement of this bill of
rights lay in the hands of judges in Strasbourg, it is not difficult
to see why, by the end of the 20th century, it was recognised
that there was a need to provide domestic remedy for a breach
of these constitutional rights. The most recent public debate
on whether Britain needed a bill of rights was in the context
of the decision to incorporate the ECHR into British law and the
Parliamentary debate that led to the Human Rights Act. That bill
of rights debate was largely restricted to the need to create
a British framework with the ECHR at its core. Nevertheless this
facilitated the development of British jurisprudence on the EHCR
and maintained parliamentary sovereignty. The then Home Secretary,
Jack Straw MP, described the Human Rights Act as "the first
Bill of Rights this country has seen for three centuries",[49]
and it indeed meets the Alston criteria for a bill of rights.
6. The Human Rights Act is a meaningful and
substantial bill of rights. The constitutional operation of the
Act is generally regarded as a good model for any future British
bill of rights. Parliamentary sovereignty is retained, while a
dialogue about the legislation is permitted (as a result of the
courts being able to make "declarations of incompatibility").
There is scope for consideration of the values of the ECHR, while
also allowing British values and traditions to be recognised and
protected in the interpretation of ECHR rights. It has been noted,
however, that for a number of reasons the HRA has not been wholly
embraced by the British public as their bill of rights.
THE GOVERNANCE
OF BRITAIN
PROCESS, INCLUDING
THE 2008 DEBATE
ON A
FURTHER BILL
OF RIGHTS
7. In July 2007, the UK Government announced
a programme of constitutional renewal, addressing two specific
issues: how should we hold power accountable; and how should we
uphold and enhance the rights and responsibilities of the citizen.[50]
A future public consultation on a British Bill of Rights and Duties
was proposed in Chapter 4 of this Green Paper.[51]
8. That Green Paper notes that the Human Rights
Act provides a "contemporary set of common values to which
all our communities can subscribe" and provides the core
basis for the protection of human rights in the UK. The Green
Paper proposes that a bill of rights could "build upon the
basic principles of the Human Rights Act", to "give
people a clear idea of what we can expect from public authorities,
and from each other, and a framework for giving practical effect
to our common values".6[52]We
support this starting point. A future bill of rights should build
upon the significant constitutional changes introduced by the
Human Rights Act, adopting this Act and its mechanisms as the
minimum for affirming the constitutional protection of rights.
9. We understand that the Green Paper on a bill
of rights for Britain is likely to be published in early to mid
2008. The Lord Chancellor and Secretary of State for Justice,
Jack Straw MP has discussed the purpose and content of this Green
Paper in broad terms in two recent speeches.[53]
10. It has been recognised that the formulation
of a bill of rights to complement the Human Rights Act will require
extensive and wide consultation, including the development of
broad consensus on the core values underpinning the bill of rights.[54]
OPPORTUNITIES FOR
FURTHERING THE
PROTECTION OF
HUMAN RIGHTS
AND EQUALITY
11. The public consultation on a further bill
of rights is, in itself, a good opportunity to heighten public
understanding and support for the protection of human rights,
and an opportunity to continue to challenge some of the myths
and misinformation which have persistently circulated around the
Human Rights Act. We consider that this public debate, and the
contribution which the Equality and Human Rights Commission can
make to this debate, could mark a turning point in the perception
and understanding of our legal framework for the protection of
human rights.
12. The public consultation is also an opportunity
to consider how we might continue to develop the protection of
human rights and equality law. An area of particular interest
to the Equality and Human Rights Commission is the introduction
of a constitutional guarantee of the right to equality. Equality
is recognised as the bedrock of a society built on fairness and
respect, and it is a key principle of human rights law. Such a
guarantee is found in bills of rights around the world, including
countries like Canada, with whom we have much in common, as well
as in numerous international and regional human rights conventions.
13. A constitutional guarantee of equality is
an effective way of embedding the promotion of substantive equality
in all functions of the State. As the Equalities Review 2007 reported,
we have a long way to go in achieving equality of opportunity
and attainment in British life, and efforts have to be significantly
"stepped up" in the coming years if we are to make progress.[55]
Structural barriers to equality have to be challenged, and anti-discrimination
laws alone will not achieve this. The values which underpin a
constitutional guarantee of equality include respect for the dignity
of the individual, achieving equal opportunity and equal participation,
and realising the significance and value of diversity within society.
The creation of this guarantee will mean that the right to equality
will be mainstreamed into government planning, policies and practices.
We need ambitious and far-reaching measures such as these if we
are to realise meaningful change.
14. In addition to a constitutional guarantee
of equality, there are some additional issues which a future bill
of rights could encompass. These include:
— Constitutional protection of the
positive duty on public bodies to promote equality, and the creation
of such a duty in respect of human rights, also accorded constitutional
protection (implementing Article 1 of the ECHR).
— A commitment to adhering to minimum
standards in international human rights law. The UK has shown
a strong and longstanding commitment to the international human
rights framework and has, over the past 60 years, signed and ratified
the vast majority of human rights instruments. Enshrining this
commitment in a bill of rights will ensure that these commitments
continue to inform the protection of human rights domestically,
for example, by requiring legislation to be read in a manner consistent
with the UK's treaty obligations, in so far as is reasonably possible
and in line with the purpose of the legislation.
15. There may also be scope for codifying a
right to good administration in order to set out what individuals
can expect in their everyday dealings with public authorities,
for example by imposing some express obligations on public authorities
to provide answers, to respond in time to requests, and to meet
reasonable expectations of service delivery. This would be a significant
contribution to a bill of rights for Britain, an appropriate emphasis
on meaningful procedural justice. Encapsulating some of the principles
of administrative law into an express constitutional right will
increase public confidence in accessing public bodies and underscore
the importance of continual improvement within public services.
16. Finally, we welcome a debate on possible
mechanisms for promoting socio-economic rights in Britain. Jack
Straw MP specifically addressed this issue in his speech on 21
January 2008,[56]
noted that such rights already receive constitutional protection
in a variety of ways. South Africa, Canada and India provide different
models for protection of socio-economic rights which could be
considered within the context of a public debate.
FUNDAMENTAL PRINCIPLES
TO GUIDE
THE BILL
OF RIGHTS
DEBATE
17. In revisiting the bill of rights debate,
it is important that developments are guided by the fundamental
principles grounding our human rights legal framework, and that
we maintain the legal protections already in place.
18. We emphasise the critical importance of
the universality of human rights protection, which is at the core
of the ECHR as well as all other international human rights instruments.
It has been suggested that a bill of rights should spell out "...
citizens' rights that British people can use in British courts".[57]
This proposition conflicts with a fundamental principle of human
rights standards, seeking to qualify every individual's entitlement
to protection of their human rights, regardless of their citizenship
status.
19. Another area of concern is a proposal of
"reciprocity". We understand this to mean there should
be a direct relationship between the rights to which an individual
is entitled, and the responsibilities that an individual owes
to his or her community and the State. We recognise that there
may be real value in articulating responsibilities which an individual
might owe to his or her community and the State and we discuss
this in greater detail below. But we are seriously concerned by
a proposal to make human rights protection conditional on an individual's
conduct. The human rights framework is expressly designed to strike
a balance between restrictions on rights in order to ensure the
protection of the rights of others and society at large—not
to restrict who is entitled to claim human rights protection.
The right to a fair trial illustrates the issue. Even where a
person is accused of the most appalling crime, we accept that
that person is still entitled to a fair trial in the determination
of that person's guilt or innocence prior to the imposition of
an appropriately sufficient penalty.
20. Another difficulty in making responsibilities
a qualifier on the content or availability of rights is the potential
to impact on individuals who are unable to assume responsibilities,
for reasons relating to an impairment or health condition or through
lack of support. This is an issue of serious concern to the Commission,
in respect of both our human rights and equality mandates.
21. For these reasons we recommend that the
idea of responsibilities is addressed with clarity. Fairly and
properly phrased, articulating responsibilities, as a discrete
concept, could play a useful role in fostering a greater sense
of greater social awareness, community cohesion and a culture
of respect for others. The notion of responsibilities is embedded
in international human rights law—the vast majority of human
rights are not absolute, they are subject to respect for the rights
of others and the public interest. There are a number of ways
in which responsibilities could be given greater prominence in
the context of a bill of rights, to complement individual rights
and freedoms in articulating an overall set of societal values.
22. We note here that there may be a distinction
between the language of "responsibilities" against the
language of "duties", and we consider that the language
of "duties" may imply legal obligation. For this reason,
we prefer the language of "responsibilities".
23. The African Charter on Human and Peoples'
Rights usefully illustrates the issue. The Charter contains both
legally enforceable rights, as well as a series of non-enforceable
social responsibilities which individuals owe to their family,
their community and the State.[58]
The Charter elevates core social values to the status of constitutional
protection in their own right, without compromising the relationship
between the individual and the State in respect of individual
rights and freedoms. This is a model of how values of mutual respect
can be expressed in a bill of rights.
24. We also consider that the creation of responsibilities
can be viewed in a positive light, in respect of furthering the
statutory duty imposed upon the Equality and Human Rights Commission
to promote and encourage a society in which:
(e)
there is mutual respect between groups based on understanding
and valuing of diversity and on shared respect for equality and
human rights.[59]
25. Turning to another issue of particular note,
the Equality and Human Rights Commission is also concerned by
the suggestion that the state should be able to take national
security into account when considering the deportation of foreigners
to countries where they may face torture or inhuman or degrading
treatment. Article 3 of the ECHR prohibits torture or inhuman
or degrading treatment or punishment. In contrast to the other
provisions in the ECHR, Article 3 is cast in absolute terms, without
exception or proviso. No derogations from Article 3 are permitted
in times of war or other public emergencies, unlike in respect
of other Articles. There are no circumstances in which torture
or inhuman or degrading treatment can be performed in the interests
of the State; and there is no balancing of the right against public
interest.
26. The European Court of Human Rights (ECtHR)
has specifically confirmed that where a proposed deportation runs
a risk of ill-treatment which would violate Article 3, then the
deportation must not proceed.[60]
In a unanimous judgment in February 2008, the Grand Chamber of
the ECtHR affirmed that the Article 3 prohibition in respect of
the removal of individuals must remain unqualified.[61]
27. The UK Government has intervened in the
forthcoming case of Ramzy v The Netherlands seeking a reconsideration
of this principle by the ECtHR.[62]
We note that the Joint Committee on Human Rights considers that
the grounds of the Government's intervention "sit uneasily"[63]
with the Government's statement that it does not wish to tamper
with the absolute nature of the prohibition of torture, or deportation
to face torture:
... in arguing for deportations of terrorist
suspects despite a real risk of torture on their return, [this]
may send out a signal that the absolute prohibition on torture
may in some circumstances be overruled by national security considerations....
... even if the Government were to succeed, the
absolute prohibition on torture, and on expulsion to face a real
risk of torture, would in any event remain binding on the Government
under the Convention Against Torture, and any expulsion carried
out despite a real risk of torture or inhuman or degrading treatment
would be likely to breach these obligations.[64]
CONCLUSION
28. The Equality and Human Rights Commission
has sought to identify and comment upon some of the key issues
likely to arise in the public consultation on a future bill of
rights for Britain. We welcome the Committee's initiative in fostering
debate on this key issue and confirm our willingness to provide
oral evidence to the Committee if called upon to do so.
20 March 2008
47 Promoting Human Rights through Bills of Rights,
OUP, 1999, p10. Back
48
The full name of the Covenant is the Convention for the Protection
of Human Rights and Fundamental Freedoms, although it is commonly
referred to the European Convention on Human Rights. Back
49
Jack Straw MP, Speech to Institute for Public Policy Research,
13 January 2000. Back
50
The Governance of Britain, July 2007, Cm 7170. Back
51
Ibid, paras 204-10. Back
52
Ibid, para 209-10. Back
53
See Jack Straw MP, "Modernising the Magna Carta", Speech
at George Washington University, Washington DC, 13 February 2008;
and "Towards a Bill of Rights and Responsibility", Speech
at JUSTICE/Guardian public debate, 21 January 2008. Back
54
Note 4, para 213. Back
55
"Freedom and Fairness: the final report of the Equalities
Review", February 2007. The Equalities Review was commissioned
by the (then) Prime Minister in February 2005 to investigate the
causes of persistent discrimination and inequality in British
society. Back
56
See note 7 above. Back
57
David Cameron MP, British Bill of Rights, Speech to Centre for
Policy Studies, 26 June 2006. Back
58
African Charter on Human and Peoples' Rights, Articles 27¸29. Back
59
Equality Act 2006, s 3. Back
60
Chahal v United Kingdom (1996) 23 EHRR 413. Back
61
Saadi v Italy, judgment 28 February 2008, Application No.
37201/06.The UK Government intervened in this case. Back
62
Application No. 25424/05. The UK Government advanced the same
argument in its intervention in Saadi v Italy. Back
63
Joint Committee on Human Rights, Report on the UN Convention
Against Torture, 26 May 2006, para 24. Back
64
Ibid, paras 26¸7. Back
| 
