Joint Committee on Human Rights Written Evidence

21.  Memorandum from the Law Society of Scotland


  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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