Joint Committee on Human Rights Written Evidence


19.  Memorandum from JUSTICE

  I am pleased to respond on behalf of JUSTICE to the call for evidence by the Joint Committee on Human Rights (JCHR), concerning its inquiry into a British bill of rights.

  JUSTICE is an all-party organisation, largely of lawyers, dedicated to advancing access to justice, human rights and the rule of law. We are also the United Kingdom section of the International Commission of Jurists.

  JUSTICE has recently completed its own inquiry into a British bill of rights. Our report is due to be published in November 2007. We published an interim discussion paper "A bill of rights for Britain?" in March 2007, which is attached to this letter[67]. In response to the call for evidence, this letter summarises and supplements what is covered in more detail in the discussion paper and in our forthcoming report.

  JUSTICE welcomes the JCHR's inquiry and the wider debate on a British bill of rights. We are conscious that the continuing hostility towards the Human Rights Act 1998 (HRA) creates a fragile atmosphere in which to explore the issues. We wish to stress that while the debate is ongoing, and at least up until the enactment of any new bill of rights, the current HRA must stay firmly on the statute book. Frequent misunderstandings of the HRA's application on the part of the public (and Parliamentarians), perpetuated by inaccurate press coverage, mean that informed and constructive discussion is all the more crucial.

Is a British bill of rights needed?

  A British bill of rights which respects the minimum level of protection for fundamental rights afforded by the European Convention on Human Rights (ECHR) and which engages the British public in shaping its content is a potentially worthwhile and valuable project.

  Many view the HRA as our current bill of rights. There is not strictly a "need" for a new bill of rights in the same way that there was a "need" for the HRA. In making EHCR rights justiciable in domestic courts and in laying the ground for a human rights culture which would frame policy decisions and guide public services, the HRA performed a function which arguably has rendered a British bill of rights unnecessary.

  However, a domestic bill of rights which builds on the substance of the ECHR, as incorporated in the HRA, can also serve an important symbolic role. At a time when national identity and cohesion are a political priority, a bill of rights presents the opportunity for debate and consensus on a core set of common principles appropriate for a modern British democracy.

Purpose

  A British bill of rights may serve a number of purposes. It may give greater constitutional protection to fundamental rights;[68] it may increase the scope of rights provided for in the HRA; it may emphasise the constitutional principle of the rule of law;[69] it may have the educative function of building public awareness of constitutional rights and enhancing its legitimacy through public consultation; it may also draw attention to the rights and duties of citizenship and the positive duties of the state towards all individuals in its jurisdiction.[70].

  Beyond the protection for human rights already provided by the HRA, a domestic bill of rights might therefore "entrench" fundamental rights, making it more difficult to amend its provisions; it might increase protection by guaranteeing a broader range of rights, for example including a right to free healthcare or to a clean environment. A more concrete suggestion is to go beyond the HRA by incorporating Article 13 ECHR, which provides that everyone whose rights and freedoms under the Convention have been violated are entitled to "an effective remedy" before the domestic courts.

Content[71]

  There is scope for enhancing the protection of existing rights as well as protecting rights not previously recognised in British courts. JUSTICE does not prescribe a list of rights for inclusion. We believe that a range of rights should be debated, paying attention to the experience of other countries" bills of rights, while focusing on the British context. Beyond the rights already protected by the HRA, we should consider common law constitutional rights which expand on the EHCR, such as the right to a trial by jury (as part of the right to a fair trial in serious criminal cases). While there is a network of equality legislation which has a hugely beneficial impact in many areas, there is scope for a single, freestanding right to equality.[72] Economic, social and cultural rights are more controversial, prompting disagreement over whether such entitlements, crucial as they are, should be the subject of judicial rulings. Their inclusion might be limited to guiding "principles" rather than justiciable rights.[73] Much can also be learnt from international rights instruments and foreign bills of rights, some of which encompass children's rights and "third generation" rights such as the right to a clean environment.

Rights and responsibilities[74]

  Much of the discussion about a British bill of rights has emphasised responsibilities as a necessary counterpart to rights. One option is to include the notion of responsibility in a preamble to the bill of rights.[75] The essential point is that moral responsibilities are incumbent on all of us so that society functions cohesively. Already, most rights require balancing with other rights and the interests of the community as a whole. However, to argue that the enjoyment of rights should be legally contingent on the exercise of responsibilities is to misunderstand the concept of universal and inalienable rights.

Relationship of a British bill of rights to other rights instruments[76]

  In relation to international obligations, the UK's "dualist" legal system means that while the state is bound by international obligations in treaties it has ratified, the courts are not bound to apply (although they tend to interpret in line with) their provisions in the absence of incorporating legislation. Given the UK's broad network of international obligations and their increasing importance in domestic law, a British bill of rights might draw from the South African model, which obliges courts to consider international law and permits them to consider foreign law.[77] In addition, there is scope for including a requirement that new legislation being considered for compatibility with the ECHR (and which requires a S19 certificate of compatibility by the relevant minister) is also examined for compatibility with the UK's other international obligations.

  As for the relationship of a British bill of rights to the HRA, there are a number of possibilities, which will clearly depend on the scope and the terms of the bill of rights. A bill of rights may explicitly repeal the HRA. Given the recognised constitutional importance of the HRA, such an occurrence may prove a constitutional upheaval and the bill of rights will inevitably have to provide a new and comprehensive framework for interpretation, addressing the status of the ECHR and the jurisprudence of the ECtHR. Another option is for both documents to exist side by side, with the new bill of rights as a supplement to the rights guaranteed by the HRA. The risk here is causing confusion in the courts. There is also the fact that S3 HRA will still apply and so the HRA will be used to interpret the provisions of the new bill of rights. A further possibility is that the HRA may simply fall into disuse, though again its constitutional significance indicates that reference to its status on enactment of the new bill of rights must be made explicit.

  In relation to the EHCR, it is important that the provisions in a British bill of rights (which distinguishes itself from the HRA) are "ECHR-plus" and not "ECHR-minus". As to their interpretation by British judges, there is an argument that the scope of rights should not exceed the parameters set by the European Court of Human Rights (ECtHR) at Strasbourg.[78] Even under the HRA, however, there seems little reason why British judges should not go further than the ECtHR in protecting certain rights, particularly in areas where there is little guidance or no Europe-wide consensus and where they can use their knowledge of the application of rights in the British context. Such an approach is in line with the government's intention on enacting the HRA.[79] A specifically British bill of rights may give judges more impetus to depart from Strasbourg where the core ECHR rights are concerned and generally to develop a "British" body of human rights jurisprudence.

Impact of a British bill of rights on relations between Parliament, government and judiciary

  Discussions on a British bill of rights should be seen against the backdrop of the broader process of constitutional change in Britain.[80] The effective maintenance of the constitution and the rule of law depend on constructive relationships between the three branches of government. The nature of relations between these branches has changed in recent years, partly as a result of changes in the system of governance and partly because of changing attitudes and perceptions.[81] The role of the judiciary has become more prominent since the HRA, with judges being required to decide issues with highly sensitive and often political implications. There have also been moves to establish a more explicit separation of powers, most notably between the executive and the judiciary.

  The consequence of a more prominent judiciary with greater autonomy has created a more dynamic relationship between the branches of government in which the judiciary have a more structured and active role in defending their decisions from criticism. A British bill of rights, in the same vein as the HRA, should heighten the awareness of each branch of government in relation to its distinctive role in protecting fundamental rights and upholding core principles. It should also emphasise the joint responsibility of all branches in this respect and should prompt consideration of better means of communication between them. A degree of cross-institutional tension is natural and productive. However, a renewed effort to ensure fundamental rights in Britain will benefit from increased interaction and mutual understanding of institutional perspectives.

30 August 2007







67   Not published here Back

68   For example, by requiring special Parliamentary or other procedures for amendments to its provisions. Back

69   In the sense that it can renew government accountability against a core set of principles. Back

70   Though a British bill of rights can have special significance for British citizen, its application to non-citizens with the British jurisdiction is just as important, particularly for some vulnerable (and unpopular) minorities such as asylum seekers who are unable to vote and therefore have no political voice in the electoral process. Back

71   See paras 16-30 of the discussion paper. Back

72   As seen, for example, in Article 26 of the International Covenant on Civil and Political Rights and Article 15 of the Canadian Charter of Fundamental Rights and Freedoms. Back

73   See paras 25-27 of the discussion paper. It should be noted that the right to education is already guaranteed in Art 2, Protocol 1 ECHR. Otherwise, the right to free healthcare is most frequently prioritised for a bill of rights in public opinion polls on the question. Back

74   See paras 31-33 of the discussion paper. Back

75   The Victoria Charter of Human Rights and Responsibilities 2006 has a preamble stipulating that "human rights come with responsibilities and must be exercised in a way that respects the human rights of others". Back

76   It is assumed here that a British bill of rights will take the form of an Act of Parliament, albeit with a special status attached. Should the government decide to draw up a less substantial document in the form of a "statement of values" then of course this will have little or no practical effect other than a requirement that its principles are taken into account by public authorities, policy makers and judges. If a bill of rights forms part of a written constitution, it may be that, as in Germany for example, the domestic constitution ranks as supreme over international law; or that, as in France, the constitution is taken to comply with international law and automatically incorporate ratified treaties. Back

77   Article 39 (1) (b) and (c) respectively, Constitution of the Republic of South Africa. Back

78   Lord Bingham stated that "the duty of the national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less", R (Ullah) v SS Home Dept [2004] UKHL 26 at para 20. See also R (Countryside Alliance) v HM Attorney General [2006] EWCA Civ 817; R (Clift v SSHD) [2006] EWCA Civ 817. Back

79   Judges are required under S2 HRA to "take account of" the European Court case-law, but are not bound by it. It was, in fact, the Conservative front bench who tabled amendments in the House of Lords, during the passage of the HRA, aimed at binding the domestic courts to Strasbourg jurisprudence. These were rejected by Lord Irvine, then Lord Chancellor, rejected conservative amendments aimed binding UK courts to Strasbourg jurisprudence on the grounds that there could arise occasions when it would be right for UK courts to depart from Strasbourg. He anticipated that UK courts would "give a lead to Europe as well as...[be] led", 583 HL debates, 515 (18 November 1997). A well known example of departure from previous Strasbourg authority is found in Ghaidan v Mendoza [2004] UKHL 30, where LJ Buxton explicitly departed from S v UK (1986) 47 D&R 247 to provide protection for homosexual partnerships. Back

80   The last decade has seen a number of major constitutional reforms, including the Human Rights Act 1998 (HRA); devolution; the abolition of the traditional role of the Lord Chancellor; the judicial-executive "concordat" which led to the Constitutional Reform Act 2005; the creation of a new Supreme Court; and, most recently the creation of a Ministry of Justice which came into being on 9 May 2007. Back

81   Relations between the executive, the judiciary and Parliament, House of Lords Constitution Committee, Sixth report of session 2006-07, HL 151. Back


 
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