Angela Patrick, a qualified barrister and director of human rights at JUSTICE, discusses the report of the Commission on a Bill of Rights for the UK:
Before the 2010 general election, the Conservative party and the Liberal Democrat party were about as far apart as they could be on human rights issues. The coalition agreement promised the Commission on a Bill of Rights to plaster over that rift. It was tasked to ‘investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights [‘the convention’], ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties’.
The views of the majority
A majority of seven members (including the chairperson, Sir Leigh Lewis, Lord Lester QC, Jonathan Fisher QC, Anthony Speaight QC, Martin Howe QC, Lord Faulks QC and Professor Sir David Edward) concluded, after over a year’s work, that: ‘there is a strong argument in favour of a UK Bill of Rights’ (Vol 1, para 78).
The majority noted that other Council of Europe states have a written constitution, a national bill of rights or both. This would, they explained, be of little consequence. However, since there is little ownership of the Human Rights Act (HRA) 1998 by the people of the UK, they concluded: ‘it is this lack of ownership by the public which is … the most powerful argument for a new constitutional agreement’ (Vol 1, para 80).
The majority’s limited agreement was affected significantly by the following:
•They held very different views on the content or purpose of any Bill of Rights. This is illustrated by the number of individual papers, which did not form part of the agreed conclusions of the report, submitted by members of the majority, all expressing very different views on the purpose of any Bill of Rights. It is clear that for at least two of the majority, the purpose of this exercise would be to provide the foundation for withdrawal from the jurisdiction of the European Court of Human Rights (ECtHR). For another member of the majority, Lord Lester QC, no bill would be acceptable unless it built on both the protections of the convention and the HRA, including recognition of the role of the ECtHR.
•There was agreement that the conclusion of the majority should not provide an immediate basis for constitutional reform, but rather be a contribution to a continuing national debate, which should not conclude until after the referendum on independence for Scotland timetabled for 2014.
The last of these caveats is particularly warranted, but a number of aspects of the commission’s work undermine the majority’s broad-based support for a new Bill of Rights.
•The commission was appointed as a predominantly political exercise. Its membership was unrepresentative, being dominated by white, male lawyers based in the South of England. The majority accepted that the public perception of human rights was very different outside England and that in Northern Ireland, Scotland and Wales there appeared to be support for the status quo. (This has since been confirmed by the Scottish Government’s response to the report, which has committed to resist any change as part of the debate on independence.) Baroness Kennedy and Professor Philippe Sands QC, the commissioners who were in the minority, regretted that the conclusion of the majority had been unduly London-centric.
•Its members had adopted clear positions before undertaking their task. It is obvious that these positions influenced the conduct of their work. From the outset, the members’ clear disagreements were public knowledge, with some openly hostile to the existing arrangements for the protection of human rights in the UK, and to the role of the ECtHR. Some members of the commission regretted openly that the terms of reference bound them to building on the protection offered by the convention.
•Reviewing its consultation exercise, the commission concluded that it would not be ‘bound by the outcomes’ of its consultations and members should apply their own judgment to its terms of reference (Vol 1, para 64). The commission felt able to dismiss some submissions as ‘tactical’ rather than based on ‘fundamental beliefs’ (Vol 1, para 7.33).
JUSTICE’s evidence to the commission was pragmatic, not tactical. Even if a Bill of Rights could be designed to better suit the UK, the current adversarial debate makes enhancing protection of fundamental rights highly unlikely in the current climate. The HRA fulfils the key functions of a Bill of Rights for the UK, together with the oversight of the ECtHR. If the only gain to be achieved from reform would be greater public understanding and ownership of human rights, this should be achieved through public engagement and education before any rational nationwide discussion on further constitutional change can take place.
The views of the minority
Baroness Kennedy QC and Professor Philippe Sands QC refused to support the majority conclusion. They published a devastating critique in their minority report:
It is impossible to speak of principle when the true purport is not being addressed explicitly and would include, for some at least, a reduction of rights. We consider that the moment is not ripe to start moving towards a UK Bill of Rights until the parameters of such proposals are clearly set out. We note in this regard that our colleagues in the majority have, in our view, failed to identify or declare any shortcomings in the Human Rights Act, or in its application by our courts (Vol 1, p222).
JUSTICE shares these concerns. The commission’s majority endorsement of the case for a Bill of Rights neglects the political, and increasingly toxic, nature of the current debate on rights protection in the UK. It is regrettable that this might be used as justification by some to begin stripping away the protection offered to us all by both the HRA and the convention.
That the report fails to provide reasoned support for its principal conclusion has been transparent to most commentators. Unfortunately, as a result of the untidy, but convenient, compromise reached by the majority of the commission, members of each party in the coalition government remain free to see what they want to see in its work.
This article reflects the author’s personal views.