21. Memorandum from the Law Society
of Scotland
INTRODUCTION
The Bill of Rights Working Party has considered
the Call for Evidence from the Joint Committee on a British Bill
of Rights. The Working Party has the following comments to make.
The Working Party is unsure about the scope
and purpose of the Joint Committee's Inquiry. There is a debate
about the need for a Bill of Rights inspired by organisations
like Justice: "A bill of rights for Britain" (2007)
and The Constitution Unit: "Towards a New Constitutional
Settlement" (2007) however, the Inquiry Call for Evidence
does not explain why the Joint Committee is of the view that this
topic needs parliamentary attention. The Working Party notes that
the Inquiry does not consider changes in the Constitution of the
United Kingdom which have taken place since 1997 other than the
enactment of the Human Rights Act 1998.
Question 1: Is a British Bill of Rights needed?
In discussion whether a British Bill of Rights
is needed it is necessary to ascertain what a "British Bill
of Rights" would contain and what the definition of "British"
would be. Does "British" relate to the United Kingdom,
Great Britain or the constituent parts of the United Kingdom eg
England and Wales, Scotland and Northern Ireland? The citizen's
rights differ in each of the constituent parts due to the different
legal regimes which apply in each jurisdiction.
The Working Party is concerned about the scope
of such rights. Are political and unilateral rights included?
Is the Bill of Rights to be limited to legal rights only?
In a UK context a British Bill of Rights can
only relate to the constitution of the United Kingdom formed by
the Treaty of Union (1707) and the relevant Acts of the English
and Scottish Parliaments and the Union with Ireland Act 1801.
"British" Rights can only be identified as seen through
the prism of the Union instruments as built upon by 300 years
of legislation some of which applies only to England and Wales,
to Scotland and to Northern Ireland, or to Great Britain or to
the United Kingdom. Furthermore, the impact of EU legislation
in a variety of areas eg employment, equality, international treaties
and the application of other rights instruments should not be
forgotten.
The separate constitutional and rights structures
of England and Scotland prior to the Treaty of Union in 1707 create
different strands of constitutionality. For example Magna Carta
(1215) did not apply in Scotland nor did the Petition of Right
of 1628 or the Bill of Rights of 1689. The corresponding Scottish
Documents could be said to be the Declaration of Arbroath (1320)
and the Claim of Right (1689). However, as these documents are
limited to Scotland in their effect in much the same way as Magna
Carta and the Bill of Rights are limited to England, the Society's
contention is that analysing British rights emanates, at the very
best, from the Treaty of Union in 1707 and probably more properly
from 1801. Even then there are rights which reach from before
1707 and apply in each jurisdiction separately. Similarly there
are rights which have been enacted since then which are limited
to one jurisdiction of the other. Since the Scotland Act 1998,
the Government of Wales Acts 1998 and 2006 and the Northern Ireland
Act 1998 diversity of rights is more evident. Indeed in the case
of the Scottish Parliament, although the Parliament cannot amend
the Human Rights Act 1998 it can and does legislate positively
in the field of Human Rights.
A British Bill of Rights could be seen as entrenching
"British" values. The Working Party would question how
these "values" could be identified and articulated.
This has a political overtone.
A Bill of Rights for the United Kingdom would
be able to set out the expectations and rights of UK citizens
and the obligations of the executive, legislature and judiciary.
One substantial advantage of a Bill of Rights for the United Kingdom,
were it entrenched and the possibility of repeal restricted, would
be constitutional stability.
A Bill of Rights for the United Kingdom should
not be used as a mechanism for supporting a party political objective
but should be a citizen-centric mechanism for ensuring that human
rights are enhanced in the UK. A Bill of Rights should ensure
that the rights of British citizenship and the obligations of
the State to the individual are set out clearly. Whether a British
Bill of Rights would add to the protection of the Human Rights
Act 1998 would depend on its content, its enforcement mechanism
and its entrenchment.
Question 2: What should be in a British Bill
of Rights?
In the Society's view any proposed Bill of Rights
for the United Kingdom must build on and enhance the European
Convention on Human Rights.
A Bill of Rights for the UK could also include
rights which have commonly been characterised as constitutional,
for example, the right to access to justice, however, arriving
at consensus on this proposition may be difficult.
The Society is cautious about including other
rights which are characteristically considered as rights within
one legal system in the United Kingdom, such as, "the right
to trial by jury". In Scotland there is no such right as
whether a case goes to jury trial is determined by the forum which
is at the instance of the prosecutor.
A UK Bill of Rights could include i) rights
which are contained in EU and UK legislation ii) economic and
social rights iii) rights contained in other international treaties,
for example the Convention on the Rights of the Child or the International
Covenant for Civil and Political Rights and iv) the EU Charter
on Fundamental Rights.
On the question of whether the Bill of Rights
should include identification of the citizens" responsibilities
the Society is of the view that the fundamental purpose of a Bill
of Rights is to ensure that certain human rights are guaranteed
and protected against the State's capability to legislate in a
way which is contrary to those rights. These rights can be limited
only to the extent which it is absolutely necessary in order to
protect the common good and the rights of others. Inclusion of
responsibilities is fundamentally a political question. The Working
Party recognise the call to enhance the responsibilities of the
citizen but do not hold to the view that a Bill of Rights is the
correct place for such a statement. Many rights in eg ECHR have
qualifications which provide a balance of the rights of the individual
with competing interests. Including responsibilities is conceptually
difficult in a Bill of Rights.
Question 3: What should be the relationship
with the Human Rights Act and International Human Rights Obligations
A Bill of Rights for the United Kingdom should
add to the ECHR rather than subtract from it. The concept of parliamentary
sovereignty as applicable to the UK Parliament creates difficulties
in respect of the role of the judiciary in striking down incompatible
legislation. The Human Rights Act 1998 only allows for declarations
of incompatibility in respect of Westminster legislation, relying
upon Ministers to take the initiative to change the law in the
light of a declaration of incompatibility.
This, however, is not the only way of dealing
with Human Rights legislation or the ECHR. Under the Scotland
Act 1998 ECHR compliance is a pre-requisite for the legality of
Scottish parliamentary legislation. The Scottish Parliament is
not a sovereign legislature but is subject to the powers and capabilities
provided for in the Scotland Act 1998. Nevertheless, if the Scottish
Parliament or Scottish Ministers enact or carry out actions which
are contrary to ECHR the courts can nullify the legislation and
the actions involved.
This seems to be a much stronger way of dealing
with non compliance with ECHR than that which the Human Rights
Act 1998 provides for the UK Parliament and UK Ministers.
Accordingly, a stronger judicial role would
be needed if a Bill of Rights for the United Kingdom were enacted.
That stronger judicial role would imply restrictions on the concept
of Parliamentary sovereignty and allow for the judiciary to strike
down legislation which was incompatible with the Bill of Rights
for the United Kingdom. In other words a Bill of Rights would
need to be constitutionally superior to other statutes.
This also brings into view the necessity for
a Bill of Rights for the United Kingdom to be entrenched. The
Society favours procedurally entrenching the Bill of Rights for
the United Kingdom by way of the creation of a special majority
voting system for both Houses of Parliament and an amendment to
the Parliament Acts requiring both Houses to consent to the Bill
subject to the special majority.
Question 4: What should be the impact of
a British Bill of Rights on the relationship between the executive,
Parliament and the courts?
If a Bill of Rights were enacted in the manner
suggested eg as an entrenched piece of legislation with a superior
constitutional status it would lead to a re-alignment and re-balancing
of the relationship between the executive, Parliament and the
courts.
Inevitably, the executive and Parliament would
be limited in their powers and the courts would accrue a role
as the guardian of the constitution, holding the balance of power
between the other two branches of government. The adoption of
a Bill of Rights would reinforce the separation of powers in the
United Kingdom. The distribution of powers which has until recently
characterised the British Constitution would fade away as the
courts would exercise a role to strike down non compliant legislation.
This would shift the focus of the British constitution considerably.
August 2007
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