A Bill of Rights for the UK? - Human Rights Joint Committee Contents

1.  A Bill of Rights for the UK? The Government's Response

Introduction

1. We received the Government's Response to our Twenty-ninth Report of Session 2007-08, A Bill of Rights for the UK? (HL Paper 165-I, HC 150-I) in the form of a memorandum from Michael Wills MP, Minister of State at the Ministry of Justice, dated 18 December 2008.

2. We publish the memorandum with this Report. We are pleased to see that the Government agrees with a number of our observations. We comment briefly on some of the more significant points of agreement and disagreement. We will be taking evidence from the Secretary of State for Justice and the Human Rights Minister on 20 January 2009, when we intend to pursue some of these issues and we intend to return to this subject in the near future.

3. We also publish with this Report:

i.  A letter dated 15 October 2008 from the Institute of Directors responding to our Report A Bill of Rights for the UK?

ii.  Dame Nuala O'Loan's lecture commemorating the 60^th anniversary of the Universal Declaration on Human Rights, which we hosted on 10 December 2008.

ECHR-plus

4. We welcome the Government's reiteration of its commitment not to detract or resile from the rights in the European Convention on Human Rights (ECHR). We also welcome the Government's acknowledgment that there would be scope for including in a new constitutional document a range of rights which go beyond those in the ECHR.

5. We agree with the Government that the Human Rights Act (HRA) only paints part of the picture of the rights we enjoy and the values we share. The rights and values protected by the Human Rights Act are a very important part of the picture, but, as we noted in our Report, there are other important rights and values which are clearly considered fundamental in this country, which means there is considerable scope to supplement those already protected by the HRA.

Social and economic rights

6. We welcome the Government's acknowledgment that the case for developing domestic formulations of economic and social rights should not be excluded from any future process of consulting on a new constitutional document concerning rights, responsibilities and shared values. We are also pleased to see that the Government would expect to learn from overseas experience in this respect. We welcome the Government's acknowledgment that there may be ways of recognising rights, including social and economic rights, which already exist but are not enunciated as rights in UK law.

7. We also welcome the positive tone of the Prime Minister's speech on human rights to the Equality and Human Rights Commission on the occasion of the 60^th anniversary of the Universal Declaration on Human Rights. We were particularly pleased to hear his acknowledgment of the indivisibility of civil and political rights and social and economic rights.

8. We note, however, that the Government remains concerned about the possibility of any new constitutional document resulting in increased judicial intervention in areas involving resource allocation in the socio-economic sphere. In our Report, we made clear that we agree that resource allocation decisions should remain primarily for democratically elected decision-makers. We do not agree that any judicial role in these areas inevitably means that decisions about the allocation of scarce resources become less democratically accountable, and we sought to spell out a very tightly circumscribed judicial role that would not give rise to this risk. This is a question to which we may return.

Environmental rights

9. We welcome the Government's recognition that sustainable development should feature in the debate about how best to frame our rights and responsibilities, particularly in relation to future generations. The Government accepts that the inclusion of sustainable development principles in some form in an enduring constitutional document might help to foster collective responsibility for our environment.

"Britishness" and universality

10. We welcome the Government's express recognition, echoed in the Prime Minister's speech, that human rights are universal. We also welcome the Government's acknowledgment that the articulation of the common values and principles that bind us together is separate from the fact that certain more specific rights and entitlements within the UK may depend on nationality and immigration status. We look forward to the debate about the rights and duties of citizens being separated from the debate about what should be contained in any UK Bill of Rights.

Bills of Rights and devolution

11. We welcome the Government's agreement with our observations that the UK's devolved governance arrangements do not present any insuperable obstacle to the adoption of a UK Bill of Rights and that it is desirable to have bills of rights at both the national and the devolved levels, provided the level of protection at the devolved level does not fall below the minimum floor at the national level.

12. We note that on 10 December 2008 the Northern Ireland Human Rights Commission delivered its advice to the Government concerning the scope for a Bill of Rights for Northern Ireland, more than ten years after that process was set up by the Good Friday Agreement.[1] We welcome the fact that a number of the Commission's recommendations, including the basic legislative model of human rights protection, correspond quite closely to the recommendations in our Report, and that there is no incompatibility between the Bill of Rights for Northern Ireland recommended by the Commission and the Bill of Rights for the UK that we have recommended. We recommend that, in view of the amount of time that has elapsed, the Government should now move swiftly to consult on its response to the Commission's advice, with a view to introducing in the current parliamentary session a Bill of Rights for Northern Ireland in Westminster legislation, as envisaged in the Good Friday Agreement in 1998.

The parliamentary model of rights protection

13. We welcome the Government's agreement that any enforcement mechanism in a UK Bill of Rights ought to complement our system of parliamentary democracy. We suggested a number of specific ways in which the role of Parliament could be enhanced under any future Bill of Rights and we welcome the Government's commitment to give "careful consideration" to these ways of enhancing democratic scrutiny in any future debate about a Bill of Rights.

HRA-plus

14. In our report we went further than recommending that there be no resiling from the rights contained in the ECHR. We also recommended that there be no weakening of the mechanisms for protecting those rights in the HRA. In its response to our Report the Government indicates that it has no intention of diluting the strength of the interpretive obligation in the HRA and we welcome that commitment.

15. However, we note that elsewhere in its response the Government is rather more equivocal. For example, it says that consideration could be given "to the degree to which it would be possible to underline to the courts, in more explicit language, the fullest extent of their discretion to factor in the fulfilment of the parties' duties and responsibilities." It also appears to disagree with our conclusion that the Government's interest in "responsibilities" is misconceived to the extent that it is an attempt to "rebalance" human rights law by increasing the weight to be given to considerations such as safety and security.

16. We consistently criticise the Government when ministers send equivocal messages about the Human Rights Act, including in our Report on a Bill of Rights.[2] The same equivocation was shown by the Secretary of State for Justice in his interview with the Daily Mail on 10 December 2008 in which he is reported as being "'frustrated' by some of the judgments which have caused voters to consider the Act a 'villain's charter'". The Secretary of State defended his stance in a letter dated 11 January.[3] He said he remained "firmly supportive of the Human Rights Act 1998 and the way in which it has improved protection for human rights in the UK." He attributed negative public perceptions of the Act to "public unease about the limits placed by the European Court of Human Rights on the Government's ability to return terrorist suspects to their country of origin". We will return to this issue in oral evidence.

Responsibilities

17. The Government believes that there is a worthwhile debate to be had about giving certain responsibilities that we owe each other, and to our community, greater prominence in any new constitutional document. It regards responsibilities as a cornerstone of our democratic society and as such they merit a prominent place in any future Bill of Rights . It appears to have in mind "a wide range of responsibilities in the legal, social and moral spheres." We acknowledged in our Report that responsibilities have some role to play in bills of rights, but we pointed out that they fall far short of being directly enforceable duties. We remain unclear as to which precise responsibilities the Government has in mind for inclusion in any Bill of Rights and as to the form which such inclusion might take and this is one of the issues that we will be taking up with the Ministers in oral evidence.

Process

18. We recommended in our Report that an independent body, whether an ad hoc committee or an existing body with specialist expertise, be appointed to conduct a consultation exercise and to make recommendations to the Government within six months to a year.

19. We welcome the fact that the Government has studied the consultations which took place in both Northern Ireland and the State of Victoria in Australia, and the Government's recognition that many aspects of each process would usefully inform any such process in the UK. However, the Government says that it "would be cautious about referral to an independent body, and would ultimately wish to refer the decision and enactment of any Bill of Rights and Responsibilities to Parliament."

20. We agree that the ultimate decision whether or not to adopt a new UK Bill of Rights and Freedoms should be for Parliament. We also agree that any new Bill of Rights should be in the form of an Act of Parliament. However, we do not see any inconsistency between this and setting up an independent committee to conduct a national consultation about a UK Bill of Rights and to make recommendations to the Government. As we said in our Report, it would then be for the Government to decide what to do in the light of the recommendations of the independent committee. In our view, however, the consultation process must be conducted by a truly independent committee in order for there to be public confidence in both the process and the committee's recommendations.

21. We note with interest that, since we reported, the Australian Government has set up an independent national process of exactly the kind we recommended in our Report.[4] On 10 December 2008 it launched a National Human Rights Consultation, "to seek the views of the Australian community on how human rights and responsibilities should be protected in the future." The national consultation is to be carried out by an independent committee which will conduct a six month consultation and make recommendations to the Government by 31 July 2009.

22. The Australian Attorney General, announcing the consultation, said "In this, the year of the 60^th anniversary of the Universal Declaration on Human Rights, it is appropriate to reflect on the effectiveness of our current system of human rights protections, to see if gaps exist, and to explore a range of ways in which human rights protections could be enhanced." He expected there to be robust discussion about whether or not Australia should adopt a national charter of rights and encouraged community consideration of a broad range of options for future human rights protection - not only a national charter.

23. We recommend that the Government follow the recent Australian example of appointing an independent committee to conduct a national consultation on the whole range of options for a Bill of Rights for the UK.

Green Paper

24. The publication of the Government's long awaited Green Paper on a Bill of Rights has now been postponed a number of times. Further postponement will severely undermine confidence in the seriousness of the Government's intent or the clarity of its thinking. It is now 18 months since the possibility of a consultation on a UK Bill of Rights was first suggested in the Prime Minister's statement to Parliament on constitutional reform. Although the issues are complex, it should not be beyond the wit of a well-resourced Government to produce an intelligent discussion paper if it knows its own mind. The recently elected Australian Government has shown that where there is a clear political will there is a way. We call on the Government to publish its Green Paper without further delay.

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1  http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/51/A_Bill_of_Rights_for_Northern_Ireland_%28December_2008%29.pdf Back

2   Twenty-Ninth Report, Session 2007-08, A Bill of Rights for the UK?, HL Paper 174, HC 1079 Back

3   See Letter from the Justice Secretary to the Chairman (11 January 2009), p 32 Back

4   Our recommendation was strongly influenced by the process which had been followed in the Australian state of Victoria. Back

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Prepared 19 January 2009