Joint Committee on Human Rights Written Evidence


24.  Memorandum from Ellie Palmer, Senior Lecturer, Department of Law, University of Essex

THE CONTENTS OF A BRITISH BILL OF RIGHTS

1.   The central question posed by the JCHR—"is a British Bill of Rights Needed?" is considered here in light of two subsidiary questions raised by the Committee:

  (i)  What would a British Bill of Rights add to the protection for human rights already provided by the Human Rights Act 1998? (Question 1. 3)

  (ii)  Specifically should it include social and economic rights such as health and education and if so which? (Question 1.6)

2.   Background and impetus for change

  2.1  Much has happened in the political landscape of the United Kingdom since the enactment of the HRA 1998. As Lord Lester and David Pannick observed in the second edition of their textbook Human Rights Law and Practice (2004)[126] "it had become clear six years after the election of the Blair government that it would not now have enacted the HRA 1998 if it were considering whether to do so afresh".[127]

  2.2  Commenting on New Labour's disenchantment with the role of courts under the HRA 1998, the authors noted that in a television interview on 5 February 2003, the Prime Minister Tony Blair had said that the position regarding asylum and illegal immigration was "unacceptable" and that if necessary the ministers would "fundamentally" re-examine Britain's obligations under the "Convention"[128]. Further, commenting on criticism by the Joint Committee of Human Rights of proposals for "fundamental changes to the asylum and review system"[129] by David Blunkett, then Home Secretary, (deemed by the Minister to be compatible with the Convention rights') the authors sternly concluded.

    "Unless the present and future administrations recognise the HRA 1998 as no ordinary law, but a constitutional measure that except in highly exceptional circumstances takes precedence over ordinary legislation the case will become overwhelming to entrench human rights by means of a new constitutional settlement and written constitution."[130]

  2.3  However, approximately two years before the end of New Labour's third term of office, the call for a new constitutional settlement has come from rather different quarters. David Cameron, leader of the Conservative opposition has said that if elected to government, he will introduce a new distinctively British bill of rights for the United Kingdom and Gordon Brown, before replacing Tony Blair as New Labour Prime Minister also expressed his commitment to a "new constitutional settlement".

  2.4  Thus, in light of emphasis on a bill of rights for the United Kingdom as opposed to one with a European focus, the possibility that the HRA 1998 might be repealed has become more than an idle threat.

  2.5  In the prolonged campaign, which preceded the HRA, little attention was paid to the content of the rights to be incorporated into UK law.[131] Indeed, it had been narrowly assumed by most campaigners that liberal democratic rights and freedoms of the kind enshrined in the ECHR would provide an entirely apposite foundation and that there would be no need to fashion a home grown Bill of Rights for the United Kingdom.

  2.6  Since then however, constitutional commentators have raised concerns, about the lack of balance reflected in the incorporation of an "outmoded" treaty such as the ECHR, into the fabric of UK constitutional law.[132] Thus, critical of what has been perceived as the limited potential of the ECHR rights, to protect at best, a very basic minimum standard of living,[133] appeals have been made for the International Covenant on Economic Social and Cultural Rights the (ICESCR) to be incorporated into UK law[134] or for the adoption of a novel constitutional framework which protects civil and political and socio-economic rights;[135] or for courts, in following the example of the Strasbourg organs, to have regard to other international treaties, to which the UK is signatory, such as the ILO Convention or the Council of Europe's revised Social Charter in their interpretation of the ECHR rights.[136]

  2.7  The extent to which orthodox perceptions about differences in the nature of civil and political rights and socio-economic rights[137] are embedded in the thinking of the political establishment, can be seen in a dismissive response by the Blair government, following the HRA, to a proposal that the ICESCR might be incorporated into UK law. When asked by the Joint Committee on Human Rights (JHCR), to comment on the concluding observations of the UN Committee on Economic Social and Cultural Rights (UNCESCR) following the UK's 4th periodic report in 2002,[138] in reply, the Minister said:

    "I think there would be real difficulties with full legal incorporation. To give you a flavour of what I mean by that, if you look at the rights of adequate food, clothing and housing, these are issues for which there is no absolute standard, and are rightly the business of governments and their electorates through general elections, to determine what standard we should achieve."[139]

  2.8  Thus, since the HRA it has been left largely to the efforts of strategic human rights campaigners and practitioners,[140] to determine the potential to protect socio-economic rights in accordance with developments in Strasbourg jurisprudence that have recognised the indivisibility of civil and political and socio—economic rights.

  2.9  Recognising the urgency of an informed debate, JUSTICE has established its own "Constitution Project" to examine issues surrounding a new domestic bill of rights.[141] The Committee, which is composed of leading academic lawyers, practitioners and constitutional scholars, who are likely to have very different views on the implications of such a bill of rights,[142] has published its first discussion paper.[143]

  2.10  Important issues to be considered by the Project Committee include: contents; amendability; enforcement; the process by which it might be agreed; relationship with a written constitution and most crucially the relationship of such a bill of rights with the European Convention on Human Rights and with the HRA 1998.[144]

  2.11  Against this background, in May 2007 the JCHR has called for evidence inter alia on whether a new bill of rights is needed; what such a bill of rights would add to the HRA; and specifically whether it should include "social and economic rights such as the right to health".

2.12  Conclusions

  2.12.1  A traditional distinction has been drawn between rights with an economic component, such as labour rights or social security benefits[145] and so- called social rights such as the right to health. In the call for evidence, question 1.6 refers to social and economic rights such as the right to health. However, as elsewhere, in this paper we have preferred the use of the composite nomenclature of socio- economic rights. This is not only because of its familiar deployment in human rights discourse by way of contrast with the traditional canon of civil and political rights, but also because its use reflects the inextricable link between the economic and social policy spheres intended by the drafters of the ICESCR. Moreover, this is an approach which can be contrasted with efforts in the post-welfare era to dissociate them.[146] Thus the nomenclature of economic rights is now often used with the purpose of asserting the ascendancy of unregulated market freedom over state obligations to protect public welfare.[147]

  2.12.2  It is beyond the scope of this paper to engage in detailed discussion about the well known difficulties of including justiciable socio- economic rights in a country's constitution; or to consider the possibility of an effective marriage between the goals of economic liberalism (so-called economic rights) and expressions of state responsibility for the protection of public welfare implicit in a right to health or to social housing.[148]

  2.12.3  However the attention of the Committee is drawn to the fundamental tension in modern constitutional arrangements, where so-called economic rights and freedoms are so often found sitting incongruously side by side with a set of protective social rights[149] such as the right to health or an adequate standard of living of the kind enshrined in the International Charter of Economic Social and Cultural Rights (ICESCR) 1996.[150]

  2.12.4  Thus, although welcoming the need for informed debate about the inclusion of social rights such as a right to health in a new bill of rights, and recognising the ostensible imbalance in the protection afforded by the HRA, this author questions how far the inclusion of an amorphous social right to health in a bill of rights, might assist courts in the adjudication of sensitive socio-political disputes concerning access to medical services in the post welfare landscape of the United Kingdom.

3.   What would a British Bill of Rights add to the protection for human rights already provided by the Human Rights Act 1998? (Question 1. 3)

  3.1  The following evidence considers the impact of the HRA on the protection of human rights in the socio-economic sphere. It draws on an extensive study of the role of courts in the protection of socio-economic rights following the HRA.[151] The project started with a paper entitled, "Can the Human Rights Act 1998 address inadequacies and inequalities in public services?" which I presented in 1992 at the 4th annual JUSTICE / Sweet & Maxwell conference, Making Human Rights Work. At that time, the administrative law courts had already begun to struggle with a number of subsidiary issues concerning the potential for protecting socio- economic rights through the HRA:

    (i)

    the relationship between article 6 of the European Convention on Human Rights (ECHR) and the role of courts in "ordinary" administrative law disputes over discretionary housing and welfare benefits;

    (ii)

    (ii)  dynamic interpretations of article 8 ECHR by the ECtHR, so as to impose positive obligations in welfare needs contexts;

    (iii)

    the interpretative limits of section 3 HRA 1998 in socio-political disputes; and

    (iv)

    the meaning of "public function" in section 6 HRA.

  3.2  Since then, the House of Lords has had opportunity to address many of the issues raised in my 1992 conference paper—most recently the interpretation of section 6(3) (b) in the long awaited decision of YL v Birmingham City Council and Others [2007] UKHL 27. Disappointingly however, contrary to the expectations of many commentators, the majority in the House of Lords has applied a restrictive interpretation to the meaning of public function in section 6(3)(b) thereby, excluding many elderly and vulnerable persons from the human rights protection afforded by the HRA.[152]

  3.3  Thus, despite the protracted efforts by academic commentators, campaigning lawyers and the JCHR to persuade courts in the UK of the constitutional propriety of a more expansive compassionate "human rights" response to the interpretation of section 6(3)(b), the majority in the House of Lords has allowed itself to be persuaded by powerful strands of economic liberal thought which are hostile to the regulation of private power through public law mechanisms.[153]

  3.4  Thus, at the heart of the decision in YL v Birmingham City Council lies a fundamental tension (See above 2.12-13) between the prevailing ethos of economic liberalism which now dominates the political landscape of the United Kingdom and the welfarist connotations of social rights such as a right to health or housing embodied in the International Covenant on Economic Social and Cultural Rights (ICESCR).

  3.5  In light of the disappointing decision by the House of Lords in YL v Birmingham City Council and Others [2007] UKHL 27 it is suggested that the following questions may be pertinent when considering whether an express right to health should be included in a British bill of rights:

    "Would the majority in the House of Lords have been more readily persuaded to demonstrate a compassionate human rights response to the interpretation of public function in section 6(3)(b) had the House been required to interpret the provisions of the HRA in light of an express right to health included in a British Bill of Rights?

    Does a general right to respect for human dignity provide a more apposite basis for the protection of human rights of vulnerable individuals in the social sphere?"

4.   The protection of human rights under the HRA—recognising the indivisibility of civil and political and socio- economic rights

  4.1  The European Convention on Human Rights (ECHR) is a repository of core liberal values such as respect for dignity, equality and personal autonomy which have increasingly been relied on by the Strasbourg organs for the protection of human rights in the socio- economic sphere.

  4.2  Thus, a dynamic interpretation of the ECHR rights by the ECtHR has been used (albeit sporadically) for the protection of socio- economic rights such as the right to health or to an adequate standard of living.

  4.3  Therefore, in taking account of Strasbourg jurisprudence, courts in the United Kingdom have accepted that, in addition to protecting the traditional canon of negative freedoms such as the right not to be tortured or to be killed, there is important potential to protect socio- economic rights of vulnerable individuals through the development of positive obligations in the ECHR rights; particularly in articles 3 (a right to be treated with human dignity, and article 8 (a right to personal and physical integrity) Thus, there have been significant developments in which courts in the United Kingdom have recognised the potential to protect human rights of vulnerable and disadvantaged individuals in the socio economic sphere. (See Bernard and Another v Enfield LBC [2002] EWHC 2282, [2003] HRLR 4 Anufrijeva v Southwark London Borough Council [2003]EWCA Civ 1406; R (on the Application of Limbuela) v Secretary of State for the Home Department [2005] UKHL 66.

  4.4  However, consistent with traditional institutional and constitutional barriers to the adjudication of disputes where questions of resources may be at issue, developments have been constrained by judicial deference to the authority of the executive and other public authorities.[154]

    4.4.1  Thus, despite carefully drafted collaborative constitutional safeguards embodied in the HRA, courts have resisted the use of section 3 HRA for the scrutiny of health and welfare legislation. (See for example the approach of courts to the interpretation of section 17 of the Children Act 1989. (R (on the Application of G) v Barnet LBC [2003] UKHL 57; [2004] 1 All ER 97-214.))[155]

    4.4.2  Despite suggestions to the contrary, in sensitive political disputes such as national security and immigration, courts have been slow to intrude on the authority of the executive or other public authorities in performing their obligations under section 6 HRA.31 Thus, in highly controversial political disputes, since the HRA courts have defined the boundaries of their legitimate intervention in accordance with a context-sensitive doctrine of deference, whereby attempts have been made to exercise a constitutionally appropriate degree of restraint, without ceding questions about the legality of decisions under scrutiny to public authorities themselves.

    4.4.3  Moreover, although there has been a division of opinion among senior members of the judiciary as to the manner and extent of judicial deference, the need for utmost deference to the executive or other public authorities has been almost consistently defended when courts are exercising their powers of scrutiny under section 6 HRA in socio-political disputes raising issues of resource allocation.[156]

    4.4.4  Courts have also adopted a restrictive approach to the meaning of public authority in section 6(3)(b) despite the cogency of arguments for a more generous interpretation. Thus, the decision by the House of Lords in YL v Birmingham has clearly gone against the grain of government thinking in the drafting of section 6(3) (b).

4.4.5  Conclusions

  4.4.5.1  Clearly there is potential to protect socio- economic rights through the development of core liberal values of dignity and personal autonomy embodied in the ECHR.

  4.4.5.2  Courts in the UK have accepted the potential to impose positive obligations on government and public authorities to in the socio- economic sphere- particularly in socio economic disputes where articles 3 and 8 ECHR are engaged.

  4.4.5.3  However, despite the carefully drafted collaborative constitutional safeguards in the HRA, a consistently deferential approach has been adopted by courts in relation to their interpretative powers under sections 3 and 6 HRA.

  4.4.5.4  Moreover, the majority in the House of Lords has interpreted section 6(3)(b) in light of a prevailing ethos of economic liberalism which is antithetical to the ideals of social protection embodied in the International Covenant on Economic Social and Cultural Rights; or the revised Economic Social Charter (1996) European regional counterpart to the ECHR.

5.   Courts and the development of a culture of human rights under the HRA

  5.1  On a more positive note however, during the past six years, a sophisticated understanding has grown among senior members of the judiciary, that their responsibility under the HRA 1998 is to develop a "domestic code of human rights jurisprudence" which should not only be "in tune with Strasbourg jurisprudence", but also "fully reflect where it is appropriate to do so, our own cultural traditions and perhaps unique historic perspective of the importance of individual freedom in society".[157]

  5.2  Thus, in the context of socio- economic rights, as in other areas of jurisprudence, confidence in what it means to take account of, without necessarily following Strasbourg jurisprudence has grown. For example, in Limbuela)[158] in order to affirm its own dynamic interpretation of the scope of Article 3 ECHR, the House of Lords placed emphatic reliance on what they identified as a strong line of Article 3 jurisprudence. By contrast however, in cases such as Begum[159] Carson[160] and Kay[161] a delicate balance has been struck by the House of Lords between adhering to dynamic interpretations of Articles 6, 8 and 14 ECHR in Strasbourg, and the constitutional mandate of courts in the United Kingdom to interpret and to develop the ECHR rights in a morally defensible and culturally appropriate manner.

6.   Should people have a say in the content a British bill of rights?

  6.1  There is indeed much to be said for informed participative debate, of a kind that did not precede the HRA 1998, about a bill of rights for the United Kingdom. For example, should a bill of rights in which citizens have "a say" include civil and political and socio-economic rights, such as a right to housing or a right of access to health? If so, what would be the anticipated role of courts in protecting those rights?

    (i)

    For example, if an express right to health were included in a bill of rights, would courts be expected by citizens to have a greater role than they have cautiously assumed under section 3 HRA 1998 in reviewing legislation for the provision of health or welfare services to vulnerable individual caught up in the care system? What would the right to health mean in the privatised post welfare political landscape of the United Kingdom? (See the Canadian case of Chaoulli v Quebec [2005] SCC 35; [2005] 1 SCR 791.

    (ii)

    Would citizens anticipate that the inclusion of an express right to health might more successfully prevent the closure of local hospitals—a matter of widespread public concern over which courts currently have little control?

  6.2  In sum, would citizens expect that a bill which included express socio- economic rights (such as the right to health) allow courts more effectively to hold government to account for failure to meet the basic health and welfare needs of citizens?

CONCLUSIONS

  This is not the place to second-guess the outcome of the JUSTICE project, or indeed the likely contents of a new constitutional settlement for the United Kingdom, whether of David Cameron's or Gordon Brown's design.

  However, we wish to express a degree of scepticism that in the post-welfare landscape of the United Kingdom, a future Conservative or indeed New Labour government would allow a greater role for courts in the scrutiny of health and welfare legislation in accordance with human rights values than currently afforded by the collaborative safeguards under the HRA 1998.

  A useful contrast can be drawn with the role of courts in socio- economic rights under the South African constitution. The extent to which the historic rejection of the divisive past of South Africa provided concerted political will for the meaningful protection of socio-economic and civil and political rights in the transformative South African constitution is well documented.

  By contrast, we have seen the continuing resistance of New Labour government during the past seven years to what has proved to be the measured and enlightened constitutional review by our senior courts, of government's interference with fundamental human rights, whether designated as civil and political or socio- economic rights.[162]

6 September 2007








126   2nd ed. (Butterworths, Oxford 2004) Back

127   Ibid 20, 1.64 Back

128   Ibid 20 1.64 Back

129   See Clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003, Fifth Report, Session 2003-04 (HL 35, HC 304) 10 February 2004. The purpose of Clause 11 was to replace the existing immigration and asylum appeal and review systems with a single level of appeal from a decision of an immigration officer in most cases. It also sought to "oust" judicial review where it was claimed that the Immigration Appeal Tribunals decision was a nullity by reason of lack of jurisdiction, or irregularity or error of law, breach of natural justice or any other matter. Back

130   L. Lester and D. Pannick above at note 1 at 1.67 Back

131   In the UK, socio-economic rights have continued to be viewed as policy matters of discretionary entitlement which are subject to democratic change, inherently non-justiciable and therefore different from civil and political rights. Back

132   See K D Ewing "Constitutional Reform and Human Rights: Unfinished Business" (2001) Edinburgh Law Rev 297; G. Van Beuren, "Including the Excluded: the Case for an Economic Social and Cultural Rights Act" [2002] PL. p. ? Back

133   Eric Metcalfe, Justice Response to the "Inquiry into the Concluding Observations of the UN Committee on Economic Social and Cultural Rights" (E/C.12/1/Add.79) by the Joint Committee on Human Rights (JHCR) www.justiice.org (2003) at para 17 Back

134   Eric Metcalfe ibid Back

135   G Van Beuren above, at note 8. Back

136   K. Ewing, "The Unbalanced Constitution" in Sceptical Essays in Human Rights above at n. 5.where the author highlights use made by the Strasbourg organs of other international treaties, such as the ILO Convention or the Council of Europe's Social Charter of 1961. Thus, although remaining highly sceptical, he suggests that when taking account of relevant Strasbourg jurisprudence under section 2, UK courts should engage with other international treaties, which reflect social values as well as liberal constitutional values enshrined in the ECHR. Back

137   The composite term socio- economic rights has been used throughout the paper to highlight the inextricable link between social and economic facilitative labour rights intended in the amorphous drafting of the International Covenant on Economic Social and Cultural Rights. Back

138   The concluding observations were made on 5 June 2002, following an unfavorable periodic report, (the UK's 4th under the International Covenant on Economic Social and Cultural Rights), in which the Committee (CESCR) expressed its regret that "the Covenant has still not been incorporated in the domestic legal order and that there is no intention by [the UK] to do so in the near future". Back

139   Evidence of Bill Rammell MP, then Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, 15 September 2003. Reply to Q24. Back

140   Campaigning lawyers with the support of Justice and large pressure groups such as Shelter, Help the Aged, and the Public Law Project, had for the previous decade been active in the pursuit of socio economic rights protection, through ordinary principles of public administrative law. Back

141   See http://www.justice.org.uk/parliamentpress/index.html Back

142   The Committee members include: Francesca Klug and Lord Lester, who played leading roles in the promulgation of the HRA 1998; Professors Carole Harlow and Maurice Cranston and the political scientist Professor Vernon Bognador. Back

143   For the discussion paper, "A British Bill of Rights for the United Kingdom?" held on 23 March 2007. See JUSTICE above at note 15. The Committee invited JUSTICE members to partake in a public meeting on grounds that: "Gordon Brown talks of a "new constitutional settlement" and the Labour Party originally saw the Human Rights Act as the first step to establishing a deeper human rights culture. David Cameron wants a new bill of rights.' (IbidBack

144   ibid Back

145   A group of rights, the majority relating to employment, which precede those relating to health and welfare, have generally been regarded as the economic rights. These include rights, freely to give and be remunerated for the fruits of one's labour (articles 6 to 8), and the right to social security in article 9. It is notable that no mention has been made of the right to property in this cluster of rights, which does however makes its appearance elsewhere in the International Bill of Rights, for example in the ECHR and in the UDHR. Back

146   See T Daintith, "The constitutional protection of economic rights" ICON Vol. 2 No1 in (2004) pp 56-59. Back

147   See S. Fredman, "Social Economic and Cultural Rights" in English Public Law, D Feldman ed. (OUP 2004) at p. 534-536. For further discussion of this tension see Chapter 2. Back

148   See E Palmer, Judicial Review Socio- economic Rights and the Human Rights Act 1998 (Hart, Oxford 2007), 8-9 On the difficulties of effectively protecting the goals of economic liberalism by the drafting of so-called economic rights in a bill of rights see T Daintith, "The constitutional protection of economic rights" ICON Vol. 2 No1 (2004) pp 56-59. Back

149   See for example the amalgam of rights in the Charter of Fundamental Rights of the European Union 2000. Back

150   A group of rights: to an adequate standard of living (article 11) to health (article 12); to education (articles 13 and 14), (not confined to persons who are economically active) have generally been viewed as the "social rights" referred to in the title to the ICESCR. Back

151   Generally see E. Palmer op.cit. above at note 23 Back

152   For the view that the HRA was not generally intended to have direct horizontal effect see M. Hunt, "The Horizontal Effect" of the Human Rights Act [1998] P.L. 423-443. However, compare HWR Wade, "Horizons of Horizontality" (2000) 116 L.Q.R. 217, who appealed for maximum horizontality and R. Buxton, "The Human Rights Act and Private Law" (2000) 116 L.Q.R 48, who argued that the effect of the HRA should be "vertical" only. Back

153   For a discussion of the impact of economic liberal theory on the interpretation of section 6(3) (b) see E Palmer opus cited above at note Back

154   Generally see E Palmer op. cit. above at note 23, 165-196 Back

155   See E Palmer, Courts Resources and the HRA: Reading Section 17 of the Children Act 1989 Compatibly with Article 8 ECHR [2003] EHRLR Issue 3 Back

156   For the controversy over deference under the HRA see E Palmer op cit above at note 23, 175-173 Back

157   The Rt Hon Lord Woolf of Barnes, Foreword, in L. Lester and D. Pannick (eds), Human Rights Law and Practice, 2nd edn (London, Butterworths, 2004) page vi Back

158   R v Secretary of State for the Home Department, ex parte Limbuela [2005] UKHL 66, [2006] 1 AC 396. Back

159   Runa Begum v Tower Hamlets London BC [2003] UKHL 5, [2003] 1 ALL ER 689 Back

160   R (on the Application of Carson) v Secretary of State for Work and Pensions; [2005] UKHL 37, [2005] 2 WLR 1369, [2005] 4 All ER 545 Back

161   R (on the Application of Kay and Others) v London Borough of Lambeth [2006] UKHL 10 Back

162   See the Guardian Unlimited 23 May 2007, http://www.guardian.co.uk/international/story/0,,2086261,00.html reporting the historic decision of the Court of Appeal on the previous day to allow families expelled from the Chagos Islands in order to make way for the Diego Garcia US airbase 30 years ago, to return home: "Explaining the court's decision, Lord Justice Sedley said that `while a natural or man-made disaster could warrant the temporary, perhaps even indefinite, removal of a population for its own safety and so rank as an act of governance, the permanent exclusion of an entire population from its homeland for reasons unconnected with their collective well-being cannot have that character and accordingly cannot be lawfully accomplished by use of the prerogative power of governance'. After the ruling, a Foreign Office spokesman said ministers were `disappointed' that judges had not granted the department leave to appeal the decision. `We now have one month to lodge an appeal with the House of Lords,' he added." Back


 
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