Joint Committee on Human Rights Written Evidence

12.  Memorandum from the Equality and Human Rights Commission


  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.


  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]


  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.


  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:


    people's ability to achieve their potential is not limited by prejudice or discrimination;


    there is respect for and protection of each individual's human rights;


    there is respect for the dignity and worth of each individual;


      each individual has an equal opportunity to participate in society; and


    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]


  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

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