Joint Committee on Human Rights Written Evidence

37.  Letter from the Rt Hon Jack Straw MP, Secretary of State for Justice and Lord Chancellor

  Thank you for your letter of 27 May 2008, following up on a number of issues not covered in the time available at the evidence session on the Bill of Rights and Responsibilities on 21 May.

  The Government looks forward to considering the JCHR's report on its inquiry into a Bill of Rights and drawing on its expertise in the forthcoming debate. My responses to your questions are as follows:

1.   Will the responsibilities [in a British Bill of Rights and Responsibilities] be enforceable in any way against individuals?

  The question of the legal effect to be given to responsibilities in any Bill of Rights is linked to the legal effect to be given to the Bill as a whole. Work on this is developing, but we are looking at the possibilities of framing certain responsibilities, for example the responsibility to respect the rights of others, as interpretive principles. Equally, we are aware that the law features numerous enforceable duties upon individuals, for example in relation to parents sending their children to school, and it is not our intention to cut across the existing statutory framework in such cases. As I said in my evidence before the Committee, there has always been an implicit, albeit asymmetrical balance between rights and responsibilities, and between liberties and duties. There may be value in articulating and elevating some of these responsibilities so that they sit alongside rights in one place. Responsibilities need not take enforceable form in order to achieve this objective.

2.   What will the relationship between any British Bill of Rights and the international human rights treaties to which the UK is a party? For example, would you expect it to include a provision similar to s.3 of the Human Rights Act, requiring it to be interpreted compatibly with the UK's international human rights obligations, or a similar provision to s.2 of the Human Rights Act, requiring courts to take into account other international and regional human rights standards when interpreting the Bill of Rights?

  I would not expect a Bill of Rights to affect the basic rule that international treaties to which the UK is a party have to be incorporated by Parliament in order to become part of domestic law. That said, of course, the courts can, and do, take international treaties into account in certain circumstances, and, again, I would not expect this to change.

3.   Can you provide further information on what the consultation process will entail?

  Details will be given in the Green Paper.

4.   What dedicated financial and human resources are available for the process?

  The Bill of Rights and Responsibilities is part of the broader Governance of Britain programme. The costs of the consultation process will be met from the resources allocated for the wider programme.

5.   What is the timetable for the consultation process on a Bill of Rights?

  We remain committed to publishing a Green Paper on a Bill of Rights and Responsibilities soon. We expect the engagement process to start from the date of publication and run for several months.

6.   How will you ensure that the process does not simply involve "the usual suspects" but is relevant to and involves members of the public (including harder to reach constituencies)?

  Deliberative mechanisms can help involve a broad range of members of the public and harder to reach constituencies, because they can include a general sample of the population, but they also allow for a more thematic approach; so specifically targeting those groups (or their representatives) who might not normally take part in a Government led consultation.

7.   What will be done to inform people about the process so that they can contribute in a meaningful way?

  We want the process to engage as many people as possible from all walks of life. Whatever mechanisms we adopt must be open and transparent and we will aim to ensure participants are aware in advance of the degree of influence they have. We will ensure there is a shared understanding of what is needed from the engagement mechanisms. It is worth noting that any consultation process must be consistent with representative democracy and feed into Parliamentary consideration of issues.

8.   Will the consultation only cover the content of a Bill of Rights, or will it be concerned also with enforceability, justiciability and implementation?

  I expect any consultation to be broadly based on the Green Paper's content in which we are likely to cover these issues, even if only in general terms.

9.   What degree of consensus will you be looking for and how will you ascertain whether there is such consensus?

  We anticipate informed and lively political debate in Parliament as well as a wide public debate. We believe the Government's proposals will command wide support as presenting a mature and progressive way of building upon the achievements of the Human Rights Act. And, like the Human Rights Act itself, we hope the Bill of Rights and Responsibilities will be passed into law with the support of all the main political parties.

10.   Do you propose that there will be a role for any body, independent of Government, in considering the range of options for a Bill of Rights and making recommendations?

  We have no plans to set up any new body. There is a wide range of independent statutory and non-statutory bodies in this field already.

11.   What role, if any, do you envisage for the Equality and Human Rights Commission in this process?

  We hope the Equality and Human Rights Commission will play a full and active part in the public debate around our proposals.

12.   Do you see any ways to strengthen the role given to Parliament in a Bill of Rights and Responsibilities, compared to the Human Rights Act? For example, should the Bill provide for a power of legislative override by Parliament, such as that contained in the Canadian Charter? Should it go beyond the s.19 of the Human Rights Act by requiring that reasoned statements of compatibility accompany every Bill, as does the Victorian Charter of Rights and Responsibilities? Should it require the relevant Minster to lay before Parliament, within a prescribed time, a detailed written response to a judicial declaration of incompatibilty with the Bill (as also required by the Victorian Charter)?

  As I made clear in evidence, I am proud of the architecture of the Human Rights Act in that it strikes the balance between protection of fundamental rights whilst preserving Parliamentary sovereignty. Section 19 of the HRA provides a sound mechanism by which Parliament can examine the compatibility of proposed legislation with Convention rights. Whether any new rights should be subject to the same requirement is one of the issues on which we would welcome views.

13.   How important is a diverse judiciary to the success of any British Bill of Rights?

  A more diverse judiciary with increased understanding of the communities it serves will contribute to increased public confidence in the justice system. This will be especially important in the context of a Bill of Rights and Responsibilities, which is of fundamental importance to our liberties and to our constitutional settlement.

14.   How could the pool of people from whom judicial appointments are currently made be widened in practice?

  The Ministry of Justice, judiciary and the JAC are committed to increasing the diversity of the legal profession and the judiciary at all levels. The Ministry of Justice is working closely with the Judicial Appointments Commission and the Judiciary to increase the diversity of the judiciary through a trilaterally agreed Judicial Diversity Strategy. Work underway as part of the strategy includes legislative chances to widen the pool of those eligible for judicial appointment; judicial workshadowing and mentoring schemes; the JAC's Diversity Forum; outreach events by the JAC; and work to support Diversity and Community Relations Judges in engaging with communities The statistics for the JAC's Selection Exercises for 2007-08 demonstrated that the JAC had successfully attracted a higher proportion of applications from women and those from BME groups than ever before (35% of applicants for legal judicial posts were women, and 12% were from BME groups).

  The Tribunals Courts & Enforcement Act 2007 widened the pool of candidates even further, by reducing the number of years of practice/qualification in law needed to be eligible. However, it is clear that we still have a long way to go before we have a judiciary that fully reflects the communities it serves. All measures that could help to improve diversity in the judiciary are being considered. This will ensure that we maintain the highest possible standards of those appointed.

15.   Can you confirm that the UK Government had no discussions with the Scottish Government about the Bill of Rights prior to 10 March 2008?

16.   What discussions have the UK Government had since March 2008 with the Scottish Government about the Bill of Rights?

17.   How does the UK Government plan to involve the devolved assemblies (Northern Ireland, Scotland and Wales) in future discussions on a Bill of Rights?

  The Government had a number of exchanges at official level prior to the 10 March and officials met with their counterparts in Edinburgh in April, where they also had an informal discussion with the new Scottish Human Rights Commissioner. My officials went to Northern Ireland in March for a meeting with the then Chair of the Bill of Rights Forum, Chris Sidoti, and Professor Monica McWilliams, the Northern Ireland Human Rights Commission's (NIHRC) Chief Commissioner. Professor McWilliams and a number of her commissioners have since met Michael Wills. My officials plan to meet their counterparts in the Welsh Assembly Government shortly.

  We will continue to engage with the devolved administrations and legislatures given the important contribution they can make to a discussion about rights and responsibilities and I hope that they will be involved in the consultation process over the coming months.

18.   Do you foresee any problems with having a national Bill of Rights alongside separate Bills of Rights for Northern Ireland and Scotland?

19.   How would this work in practice?

  The Government believes it is possible to take forward work on a Bill of Rights and Responsibilities in such a way as to respect the UK's governance arrangements. There could, for example, be a principled framework on rights and responsibilities but still with freedom of choice on those subjects that are within the legislative competence of the devolved legislatures. A real benefit of this approach is that human rights would be better and more consistently understood and received across the UK, emphasising the shared nature of the important principles which bind us together. These are of course matters on which we wish to consult and so it would be premature to go into detail on how such an approach might work in practice at this stage.

17 June 2008

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