A UK Bill of Rights? The Choice Before Us Volume 2: Annexes December 2012
© Members of the Commission on a Bill of Rights 2012
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Table of Contents
Annex A: Organisations and individuals with whom the Commission met
3
Annex B: The Commission’s Interim Advice to Government on Reform of the European Court of Human Rights
9
Annex C: The Chair’s letter to Ministers on Reform of the European Court of Human Rights
17 Annex D: The Commission’s Discussion Paper, Do we need a UK Bill of Rights?,
August 2011
25 Annex E: The Commission’s Consultation Paper, A Second Consultation, July 2012
45 Annex F: List of Respondents to the Commission’s Discussion and Consultation Papers
75 Annex G: Consultation Summary
111 Annex H: Examples of Bills of Rights
199 Annex H1: The Institute for Public Policy Research, A British Bill of Rights, 1990
201
Annex H2: Joint Committee on Human Rights, Outline of a UK Bill of Rights and Freedoms, 2008
229 Annex H3: Links to Bills of Rights in other countries
241 Annex I: The European Convention on Human Rights
243 Annex J: The Human Rights Act 1998
257 A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 1
2 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Annex A Organisations and individuals with whom the Commission met A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 3
Organisations and individuals with whom the Commission met
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Age UK
David Anderson, QC
Dr Maggie Atkinson, Children’s Commissioner for England
Nick Barber, University of Oxford
Professor Christine Bell, University of Edinburgh
Birmingham Lesbian Gay Bisexual Transgender Community Trust
Birmingham Race Action Partnership
British Institute of Human Rights
British-Irish Parliamentary Assembly
Lord Blair of Boughton, QPM
British Academy Steering Group for the Human Rights and the UK Constitution
publication
Robert Broadhurst, Parliamentary Researcher
Chris Bryant, MP
Church of England Diocese of Birmingham
Citizens Advice Bureau
Lord Carlile of Berriew, CBE QC
Catholic Archdiocese of Birmingham
The Rt Hon Ken Clarke, QC MP, Former Secretary of State for Justice and Lord
Chancellor
The Rt Hon Nick Clegg, MP, Deputy Prime Minister
The Community Law Partnership
Jean-Paul Costa, former President of the European Court of Human Rights, The
Hon Sir Nicholas Bratza, former Deputy President and President of the Court, and
other Justices of the Court
Council of Birmingham and Midland Jewry
Council of Disabled People
Permanent Representatives to the Council of Europe from Turkey, Norway,
Germany, Netherlands, Sweden and France
David Cowling, BBC Political Research Editor
Professor Paul Craig, University of Oxford
Roseanna Cunningham, MSP, Minister for Community Safety and Legal Affairs,
Scottish Government
Professor Brice Dickson, Queen’s University Belfast
Professor John Eekalaar, Oxford Centre for Family Law and Policy
Equality Commission for Northern Ireland
Equality and Diversity Forum
Equality and Human Rights Commission
Department for the Execution of Judgments, European Court of Human Rights
Advisory Panel on the Selection of Judges, European Court of Human Rights
Professor David Feldman, University of Cambridge
Professor James Fishkin, Stanford University
4 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
 David Ford, MLA, Minister of Justice for Northern Ireland
 Professor Sandra Fredman, QC, University of Oxford
 Ambassador Eleanor Fuller, Former UK Permanent Representative to the Council
of Europe
 Professor Conor Gearty, London School of Economics and Political Science
 Blair Gibbs, Policy Exchange
 The Rt Hon Lord Gill, Lord President and Lord Justice General of Scotland and
other members of the Judiciary of Scotland
 Richard Glancey and students, Northumbria University Law School
 Gurdwara Guru Nanak Nishkam Sewak Jatha Birmingham
 Professor Colin Harvey, Queen’s University Belfast
 Tom Hickman, Blackstone Chambers
 Stephen Hockman, QC, 6 Pump Court Chambers and other members of the group
of signatories to a letter to The Times dated 15 September 2011
 Professor Christopher Hood, CBE FBA, Fellow of All Souls College, Oxford
 Theodore Huckle, QC, Counsel General to the Welsh Government
 Independent Monitoring Board, HMP Birmingham
 Ipsos Mori
 Irish Traveller Movement in Britain
 Professor John Jackson, University College Dublin
 Thorbjørn Jagland, Secretary General, Council of Europe and other senior
representatives of the Council of Europe
 Sir Bill Jeffrey, KCB
 Sir Paul Jenkins, KCB QC, Treasury Solicitor
 Joint Committee on Human Rights
 The Rt Hon Carwyn Jones AM, First Minister of Wales
 Professor Timothy H. Jones, University of Swansea
 Professor Sir Jeffrey Jowell, KCMG QC, Director of the Bingham Centre for Rule of
Law, Emeritus Professor of Public Law at University College London
 The Rt Hon Lord Judge, Lord Chief Justice of England and Wales and other
members of the Judiciary of England and Wales
 JUSTICE
 Dr Aileen Kavanagh, University of Oxford
 Sadiq Khan, MP, Shadow Lord Chancellor and Shadow Secretary of State for
Justice
 Professor Francesca Klug, OBE, Human Rights Futures Project at the London
School of Economics and Political Science
 John Larkin, QC, Attorney General for Northern Ireland
 Law Society of Scotland
 Dr Liora Lazarus, University of Oxford
 Sir Jeremy Lever, KCMG QC, Fellow of All Souls College, University of Oxford
 Liberty
 The Rt Hon David Lidington, MP, Minister of State for Europe
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 Professor Inge Lønning, Chair of the Norwegian Select Committee on Human
Rights in the Constitution
 Professor Vaughan Lowe, Chichele Professor of Public International Law and
Fellow of All Souls College, Oxford
 Kenny MacAskill, MSP, Cabinet Secretary for Justice, Scottish Government
 Professor Christopher McCrudden, Queen’s University Belfast
 The McKay Commission
 Lord McNally, Minister of State for Justice and Deputy Leader of the House of
Lords
 Professor Monica McWilliams, Ulster University
 Paul Mahoney, Justice of the European Court of Human Rights and former
Registrar of the Court
 Dr Austen Morgan, 33 Bedford Row Chambers
 The Rt Hon Sir Declan Morgan, QC, Lord Chief Justice of Northern Ireland and
other members of the Northern Ireland Judiciary
 Communities and Local Government Committee, National Assembly for Wales
 Constitutional and Legislative Committee, National Assembly for Wales
 Cross Party Group on Human Rights, National Assembly for Wales
 NHS Midlands and East
 Committee for the First Minister and deputy First Minister, Northern Ireland
Assembly
 Justice Committee, Northern Ireland Assembly
 Northern Ireland Human Rights Commission
 Northern Ireland Human Rights Consortium
 Michael O’Boyle, Deputy Registrar, European Court of Human Rights and other
senior officials of the Registry
 Colm O’Cinneide, University College London
 Baroness Nuala O’Loan of Kirkinriola
 Christine O’Neill, Convenor, Constitutional Law Committee, Law Society of
Scotland
 Political and Constitutional Reform Committee, UK Parliament
 Public Law Wales
 Geoffrey Robertson, QC, Doughty Street Chambers
 Scottish Human Rights Commission
 Cross Party Group on Human Rights, Scottish Parliament
 Justice Committee, Scottish Parliament
 Rt Hon Sir Stephen Sedley, Retired Lord Justice of the Court of Appeal of England
and Wales
 Dr Alice Siu, Stanford University
 South Wales Police, Cardiff Community Cohesion Group
 Staffordshire and West Midlands Police Joint Legal Services
 Staffordshire and West Midlands Probation Trust
 UK Delegation to the Parliamentary Assembly of the Council of Europe
 Lord Phillips of Worth Matravers, KG, Former President of The UK Supreme Court
and other Justices of the Court
6 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Councillor Alan Rudge, Birmingham City Council and senior officials of the Council
UK Border Agency
Unicef UK
Professor Guglielmo Verdirame, Kings College London
Walsall Magistrates Bench
Dr Grégoire Webber, London School of Economics and Political Science
Welsh Centre for International Affairs
West Midlands Later Life Forum
West Midlands Police
The Rt Hon Baroness Shirley Williams of Crosby
The Rt Hon the Lord Michael Wills of North Swindon
Women’s Help Centre, Handsworth, Birmingham
WWF-UK
Dr Alison Young, University of Oxford
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8 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Annex B The Commission’s Interim Advice to Government on Reform of the European Court of Human Rights A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 9
Sir Leigh Lewis KCB
Commission on a Bill of Rights
Post point 9.55
102 Petty France
London
SW1H 9AJ
T: 020 3334 2486
Rt Hon Nick Clegg MP
Deputy Prime Minister and Lord President of the Privy Council
70 Whitehall
London
SW1A 2AS
Rt Hon Kenneth Clarke MP QC
Lord Chancellor and Secretary of State for Justice
102 Petty France
London
SW1H 9AJ
28 July 2011
Dear Ministers
REFORM OF THE EUROPEAN COURT OF HUMAN RIGHTS OUR INTERIM ADVICE TO GOVERNMENT INTRODUCTION
1. The Commission is invited, by its terms of reference, to provide advice to the
Government on the Interlaken process for reform of the European Court of Human
Rights, including in advance of the assumption by the United Kingdom of the
Chairmanship of the Council of Europe.
2. This letter sets out our interim advice as a first step in fulfilling our terms of reference.
It sets out our preliminary advice on the need for reform and the priorities that might
guide the Government. The main thrust of our advice is that the United Kingdom is
uniquely well-placed to set the ball rolling on fundamental reforms and that it should
do so, with a view to achieving the well-being and effective functioning of the Court
over the long term.
3. In particular, we believe there is a need to ask two basic questions:
(i) what is the central purpose of the European Court of Human
Rights for the 800 million citizens of the 47 Member States; and
(ii) how is that purpose most likely to be achieved?
10 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
4. It is evident that the current structure and functioning of the Court, as it struggles with
a voluminous and ever-growing case-load, places it in an impossible situation. From
this, three areas of fundamental reform appear to us to be particularly pressing and
cannot be addressed by mere tinkering at the edges:
first, the need to reduce very significantly the number of cases that reach the
Court, by introducing new screening mechanisms;
second, the need to reconsider the relief that the Court is able to offer by way of
just satisfaction; and
third, the need to enhance procedures for the selection of well-qualified judges of
the Court.
BACKGROUND
5. By way of background, it is appropriate to mention that the Commission has taken
account of the considerable literature and advice that already exists on the subject of
Court reform, and all but one of its members visited Strasbourg on 4 and 5 July.
During that visit we met with many individuals closely involved in the working of the
Court, including the current President, the President-elect, other judges of the Court,
the Secretary General of the Council of Europe, the Registrar and Deputy Registrar of
the Court, and a number of officials from the Court and Council of Europe. We were
also able to discuss Court reform informally with a number of the Permanent
Representatives to the Council of Europe from other Member States. In this context,
we would like to record the Commission’s considerable thanks to the UK’s Permanent
Representative to the Council, Ambassador Eleanor Fuller, for hosting and facilitating
our visit. We should also note that following our visit, several members of the
Commission met with the Leader and other members of the UK Delegation to the
Parliamentary Assembly for a similarly wide-ranging and helpful discussion. We
anticipate that our meetings and discussions with individuals closely involved with the
operation of the Court will form part of a continuing dialogue in the course of our
work.
6. It is clear that a considerable programme of reform has already been undertaken. In
particular, the adoption of Protocol 14 to the European Convention on Human Rights
has allowed a number of reforms to be introduced, including the new procedure
whereby a single judge can decide on the admissibility of an application. The Court
has also introduced a pilot judgment procedure to deal with systemic and structural
weaknesses in national systems and repetitive applications. In addition, the Court has
introduced a system of prioritisation of the cases coming to it, so as to allow the Court
to hear urgent and substantial cases more quickly. These and other reforms have
improved the Court’s working and efficiency.
7. These reforms are not, however, sufficient to tackle the serious problems facing the
Court. This was a common theme amongst all of our interlocutors. Whilst recent
reforms may slow the rate of increase in the backlog of cases, which now stands at
over 150,000, no one believes that they offer any real prospect of addressing the
underlying issues. As a consequence, the number of well-founded cases that are not
urgent and that have been awaiting a decision for many years is continuing to
increase. The absence of any real prospect of grappling with this growing problem
raises the most serious concerns about the well-being of the Court and must be a
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 11
central part of the Government’s proposals for reform.
8. These challenges mean that fundamental reform is required. Over the next year, we
would like to revisit the various modalities for achieving necessary reforms, whether
by way of amendment of the Convention or otherwise. We were encouraged in that
view by many of those whom we met in Strasbourg who are clearly looking to the
Interlaken process and to the forthcoming United Kingdom Chairmanship of the
Council for renewed impetus to be given to the reform programme. The core of our
interim advice, is to urge that the necessary will be found among the governments of
the Council of Europe to reform the system so as to enable the European Court of
Human Rights to focus on its essential purpose: as the judicial guardian of human
rights across Europe. As the Court itself has explained, “the machinery of protection
established by the Convention is subsidiary to the national systems protecting human
rights”1, and “by reason of their direct and continuous contact with the vital forces of
their countries, the national authorities are in principle better placed than an
international court to evaluate local needs and conditions”2. It is essential for the
Court to be able to address cases involving serious questions affecting the
interpretation or application of the Convention, and serious issues of general
importance, where the Court’s intervention is justified. The Court should be a court of
last resort, and not a first port of call for all human rights issues. It should be
adjudicating hundreds of cases a year, not thousands, and certainly not tens of
thousands, and ensuring that the principle of subsidiarity is observed by national
institutions with the primary responsibility for the protection of human rights and the
provision of effective remedies for violations of the Convention rights.
Interim Recommendation 1: the Government should vigorously pursue the need
for urgent and fundamental reform to ensure that the European Court of Human
Rights is called upon, as an international court, only to address a limited number
of cases that raise serious questions affecting the interpretation or application of
the Convention and serious issues of general importance. It is essential to
ensure that the Member States and their national institutions – legislative,
executive and judicial – assume their primary responsibility for securing the
Convention rights and providing effective remedies for violations. Failure to put
in place the necessary machinery for compliance should itself constitute a
violation of the Convention.
Interim Recommendation 2: the Government should use its Chairmanship to
initiate a time-bound programme of fundamental reform.
9. We believe that a number of fundamental changes need to occur.
(1) Subsidiarity and screening
10. First, the Court must be able to decline to address cases that raise no serious
violation of the Convention or any issues of significant European public importance.
This change was recommended by the 2001 Evaluation Group to the Committee of
Ministers and it needs to be adopted as a matter of urgency.
1
2
Handyside v United Kingdom (1976) 1 EHRR 737, para. 48.
Buckley v United Kingdom (1996) 23 EHRR 101, para. 75.
12 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
11. The exponential increase in the Court’s caseload, arising from a particular group of
defaulting Member States, is unsustainable and poses a serious threat to the Court’s
viability and effectiveness. In 2001, the Court’s backlog stood at only 18,000 cases.
The Evaluation Group established by the Committee of Ministers concluded that:
“...the system is seriously overloaded and, with the relatively limited resources
available to it, the Court’s ability to respond is in danger. ....Immediate action is
indispensable if the Court is to remain effective and retain its credibility and
authority.”3
12. By 2006, the backlog stood at 86,000 cases. A Group of Wise Persons established by
the Committee of Ministers reported that:
“...the explosion in the number of cases...is now seriously threatening the
survival of the machinery for the judicial protection of human rights and the
Court’s ability to cope with its workload. This dramatic development jeopardises
the proper functioning of the Convention’s control system.”4
13. Against this background, the situation is even more serious today, with a backlog of
150,000 cases, increasing at a rate of 20,000 per annum. The Government should
use as a springboard for urgent reform the work of the Evaluation Group and the
Group of Wise Persons that sought to reinforce the founding aims of the Convention
and its cornerstone principle of subsidiarity. They recommended, inter alia,
fundamental reforms of the Court’s role which would allow the Court to return to its
essential role as final arbiter of human rights.
14. In 2006, the Group of Wise Persons recommended a number of reform measures,
including the pilot judgment procedure which the Court has since instituted. In so
doing, they pointed out that:
“(t)here is a fundamental conflict between the size of the population who have
access to the Court...and the Court’s responsibility as the final arbiter in human
rights matters for so many different states. No other international court is
confronted with a workload of such magnitude while having at the same time
such a demanding responsibility for setting the standards of conduct required to
comply with the Convention.”5
15. In 2001 the Evaluation Group made similar observations and affirmed that one of the
3
Council of Europe, Committee of Ministers, Report of the Group of Wise Persons to the Committee of Ministers, CM(2006)203 [2006 Report], Preface and Executive Summary. 4
Council of Europe, Committee of Ministers, Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights, EG Court(2001)1 [2001 Report], para. 26. 5
2006 Report, paras. 35-36. 6
2001 Report, Preface and para. 8. 7
2001 Report, para. 22. 8
2001 Report, paras. 92-93. 9
Paras. 94ff. 10
Letter from Mr Jean-Paul Costa, President of the European Court of Human Rights addressed to Member States’ Permanent Representatives (Ambassadors) on 9 June 2010, appended to Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights, National procedures for the selection of candidates for the European Court of Human Rights, Doc. 12391, 6 October 2010. A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 13
founding intentions of the Convention was to place “...primary responsibility for
securing the rights and freedoms....with the domestic authorities and particularly the
judiciary (of each Member State)”.6 The Strasbourg court, as the Group reported,
should play a subsidiary role, and particularly not the role of “court of appeal from
national courts”.7 The Commission respectfully endorses this approach. One of the
principal recommendations of the 2001 Evaluation Group was that the Court be given
a means of rejecting applications that raised issues of minor or secondary
importance. The Group recognised the objection that such a measure would deprive
some victims of a decision from the Court, but recognised that “the primary
responsibility for applying Convention standards lies with domestic courts and
authorities.” The Evaluation Group noted that:
“either the Court continues to attempt to deal in the same way with all the
applications that arrive (in which event it will slowly sink), or it reserves detailed
treatment for those cases which, in the light of its overall object and purpose,
warrant such attention.”8
16. The Commission agrees with the observations of the Evaluation Group and the
Group of Wise Persons about the Court’s essential function, and believes that the
eight-fold increase in the size of the Court’s caseload in the 10 years since it reported
confirms the irrefutable merit of this fundamental reform and the pressing need for
urgent action by the Committee of Ministers of the Council of Europe.
17. We note that the Interlaken and Izmir Declarations invite the Court to take fully into
account its subsidiary role in the interpretation and application of the Convention. The
Interlaken Declaration invites the Committee of Ministers to consider measures that
would enable the Court to concentrate on its essential role of final arbiter of human
rights and to adjudicate upon well-founded cases with the necessary speed, in
particular those alleging serious violations of human rights.
Interim Recommendation 3: the Government should ensure that an urgent
programme of fundamental reform addresses the need to give practical
effect and meaning to the essential role of the Court, by establishing a
new and effective screening mechanism that allows the Court to decline to
deal with cases that do not raise a serious violation of the Convention.
2) Relief and ‘just satisfaction’
18. The second area for fundamental change concerns the way in which successful
Applicants are afforded financial redress. A considerable part of the Court’s work
relates to the calculation and award of ‘just satisfaction’ under Article 41 – i.e.
financial redress – in cases where a breach of a Convention right has been found:
some 1,500 such awards were made in 2010. In many cases the amounts awarded
are small, in some cases as low as €100. We understand that many cases brought
before the Court are motivated by a desire to obtain such compensation, rather than
to remedy any alleged serious violation of a Convention right.
19. The Commission recognises that the subject of relief and remedies raises important
and sometimes complex issues for any court. At this preliminary stage we wish to
raise an expression of doubt as to whether it is properly the function of an
14 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
international court of last resort to be entrusted with the task of calculating and
awarding just satisfaction, since Article 41 provides that it should only be awarded “if
necessary”.
20. We do not now express a concluded view as to how to address this issue, although
one option, as recommended by the Group of Wise Persons in 2006,9 would be for
the Court to remit such decisions to the Member State concerned but to retain the
power to award just satisfaction in certain cases. This could include cases of gross
violation. However, we recognise that it will continue to be important for the Court to
order defendant States to pay the assessed legal costs and expenses of successful
applicants so as to facilitate effective access to justice.
Interim Recommendation 4: the Government should ensure that a programme of
fundamental reform addresses the need to revisit the meaning and effect of
Article 41 of the Convention and the role of the Court in awarding ‘just
satisfaction’.
(3) Enhancing the nomination and appointment of judges
21. A third area of reform is reflected in the Interlaken Declaration, calling on Member
States and the Council of Europe to ensure, if necessary by improving the
transparency and quality of the selection procedure at both national and European
levels, full satisfaction of the Convention’s criteria for office as a judge of the Court.
The Commission acknowledges that the Convention system recognises the role of
national courts, and that a mutually respectful relationship between national courts
and the Strasbourg court is essential to the proper functioning of the system. This
observation is closely connected with President Costa’s statement that the Court, as
the ultimate arbiter of human rights issues, must be composed of persons of sufficient
standing and authority to command the full respect of national judges.10
22. The Commission welcomes the establishment by the Council of Europe of an
Advisory Panel of Experts to consider judicial nominations from Member States. We
believe that this will assist in ensuring that judges have appropriate experience and
standing. It does not, however, go far enough: for example, it is indefensible that the
Panel cannot interview all nominees before giving its advice to the Parliamentary
Assembly, apparently because of a lack of sufficient funds to support the Panel’s
work. We believe that the Advisory Panel provides only a first step, and its role should
as a matter of urgency be enhanced and upgraded. It is urgent because a number of
senior members of the Court will retire in the near future, and it is vital for their places
to be taken by worthy successors. In addition, we believe that there is an urgent need
to ensure throughout the Member States that national systems are in place involving
the advertising of vacancies and a process of independent scrutiny and
recommendation by a well-qualified nominating panel, applying objective criteria.
Interim Recommendation 5: the Government should seek to ensure that a
programme of fundamental reform establishes agreement on appropriate
objective and merit-based principles and rules, and adequate resources, for the
selection of judicial candidates at the national level, and for the appointment
process at the European level.
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 15
CONCLUSION
23. In accordance with your request to the Commission to provide advice to the
Government in advance of the UK assuming the Chairmanship of the Council on the
ongoing Interlaken process to reform the Strasbourg court, we hope that this interim
advice will be of assistance in focusing on a number of key issues.
24. We are intending to publish this interim advice – when Parliament returns in
September – so that others are able to comment upon it if they so wish.
25. Finally I should note that, as you might expect, a number of other areas for potential
reform of the Court have either been raised with the Commission by those with whom
we have discussed these issues or have been raised by individual members of the
Commission themselves. These include some further suggestions to address the
Court’s backlog; and a number of suggestions intended to address concerns
regarding the respective roles of the judiciary and the democratic institutions of the
Council of Europe and the Member States; and concerns regarding the case law of
the Strasbourg court which have been expressed not only in this country but in
others. We will be returning to these issues amongst many others in our work
programme. I am writing to you separately – on my own behalf rather than on behalf
of the Commission as a whole – simply to set out the main such areas which have
been raised with us, some of which we will undoubtedly wish to consider in greater
depth at a later stage in our work programme. However, because we have not yet
been able to do so, and because some of the proposals which have been raised with
us are ones which we may well decide not to pursue at all, we have not included a
discussion of them in this letter.
26. I am sending a copy of this letter to the Foreign Secretary and Lord McNally.
Yours sincerely
Sir Leigh Lewis KCB
Chair of the Commission
cc Rt Hon William Hague MP, Secretary of State for Foreign and Commonwealth
Affairs
cc Rt Hon Lord McNally, Minister of State for Justice and Deputy Leader of the
House of Lords
16 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Annex C The Chair’s letter to Ministers on Reform of the European Court of Human Rights A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 17
Sir Leigh Lewis KCB
Commission on a Bill of Rights
Post point 9.55
102 Petty France
London
SW1H 9AJ
T: 020 3334 2486
Rt Hon Nick Clegg MP
Deputy Prime Minister and Lord President of the Privy Council
70 Whitehall
London
SW1A 2AS
Rt Hon Kenneth Clarke MP QC
Lord Chancellor and Secretary of State for Justice
102 Petty France
London
SW1H 9AJ
28 July 2011
Dear Ministers
REFORM OF THE EUROPEAN COURT OF HUMAN RIGHTS
INTRODUCTION
1. I am writing in parallel to my letter of today’s date which sets out the
Commission’s interim advice on reform of the European Court of Human Rights
pursuant to the Commission’s terms of reference. I should note that for one
member of the Commission agreement to the interim advice was conditional on
the addition of a third question, namely: how can the democratic legitimacy of
the Court be assured while at the same time assuring its independence and
authority? I return to this question below.
2. As I note in paragraph 25 of the letter conveying our interim advice, a number
of other areas for potential reform of the Court have either been raised with the
Commission by those with whom we have discussed these issues or have
been raised by individual members of the Commission themselves. These
other areas include, but are not limited to, some further suggestions to address
the Court’s backlog; a number of suggestions intended to address the
respective roles of the judiciary and the democratic institutions of the Council of
Europe and the Member States, and considerations regarding the case law of
the Strasbourg Court which have been expressed not only in this country but in
others, including the perception among some but by no means all
commentators that the Court is at times too interventionist in matters that are
more appropriate for national legislatures or courts to decide.
18 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
3. In the time available to us to provide our interim advice, we have not been able
to consider these further suggestions, or the evidence relating to them, in any
depth and we have not therefore included any discussion of them in our interim
advice. However, since we are highly likely to return to some of these issues at
a later stage in our work programme in order to examine them further, I thought
it would be useful at least to list them for you at this stage simply so that you
are aware of them. In doing so I should stress that I am putting forward this
letter myself and that, unlike the letter conveying our interim advice, it does not
carry the endorsement of the Commission.
REFORM IDEAS RAISED WITH US OR BY INDIVIDUAL MEMBERS
4. Subject to the above very important caveats, I set out below a number of
suggestions for reform, emanating either from individuals with whom we have
spoken or from one or more members of the Commission. I set them out in no
particular order of priority or merit and no inference should be drawn from the
order in which the arguments for and against each are marshalled. The
suggestions, which may or may not be the subject of further consideration and
recommendations by the Commission, and some of which we may decide not
to pursue, are these:
 Using retired judges to determine admissibility; while the change which has
been introduced by Protocol 14 under which a single judge may now determine
admissibility has undoubtedly helped, much of the time of the Court’s judges is
still being spent on admissibility issues (inadmissible applications are estimated
to account for over 90% of the Court’s caseload). The Interlaken and Izmir
Declarations call on the Committee of Ministers to consider further filtering
mechanisms for inadmissible cases. In this context, one option could be to
engage either retired judges of the Court or of appellate courts in Member
States to undertake this work on a contract basis possibly as an emergency
task force to clear the current backlog. Similar proposals for appointing judges
or committees of judges solely to decide admissibility have in the past met with
concerns that few judges would be interested in carrying out such work and
that may well be true. Equally it is possible that there might be more interest in
such arrangements if they were to be introduced within the framework of a
dedicated time bound task-force. In any event, it would be important to
consider the extent to which such proposals would create additional
bureaucratic processes.
 Authorising officials of the Registry to take decisions on admissibility; a more
fundamental change, but with the same objective, would be to put the
responsibility for determining admissibility with the Registry rather than the
judiciary of the Court. We understand that this is effectively already occurring
under the supervision of a single Judge. While many might object to the
possibility of admissibility being determined by officials rather than judges, such
an approach would, in some ways, be similar to the system originally put in
place by the founders of the Convention by which the secretariat of the
Commission considered cases in the first instance, subject to oversight by the
legally-qualified Commissioners. Only cases that had passed the admissibility
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 19
test could ever reach the Court on a reference by the Commission.
Alternatively, the objection could be overcome by investing a small number of
the Registry officials with judicial status as recommended by the Evaluation
Group in 2001.11
 Requiring applications to the Court to be signed by a lawyer or NGO; it was
clear from the Commission’s meetings in Strasbourg that proposals, originating
within the Court itself, are being considered for a requirement to be introduced
for lawyers or non-governmental organisations to have to sign applications to
the Court. The aim of this proposal would be to involve the legal profession and
NGOs in sharing responsibility for reducing the very high number of manifestly
inadmissible cases which currently arrive at the Court. The requirement would
not be for individuals to have full legal representation, and safeguards would
need to be considered to ensure that well-founded cases were not rendered
inadmissible simply because it was not possible or practical in the local
circumstance to gain a lawyer’s signature. Those who believe that this proposal
has merit consider that it might help to reduce the number of patently
inadmissible cases with which the Court has currently to deal, without
interfering with the right of individual petition. That would need, however, to be
balanced against the risk that such a requirement could make it too difficult for
those with admissible and serious allegations that their Convention rights had
been infringed to gain access to the Court.
 Enabling the Court to deliver advisory opinions; while some current reform
proposals, reflecting those made previously by the Group of Wise Persons in
2006, suggest forms of cooperation between the Court and national courts via
requests by the latter for advisory opinions, some believe that further thought
should be given to whether the Court might be given the power to deliver an
advisory opinion of its own initiative. Under this proposal, the Court could
choose to deliver, as an alternative to a finding that a breach of the Convention
has or has not occurred, an advisory opinion to the Member State concerned.
This, it is argued, could give the Court greater flexibility in those cases where it
believed that a case was essentially well-founded but not sufficiently serious or
clear cut as to require a specific and binding determination by the Court. On the
other hand there could be a risk of such opinions leaving the legal position in
the Member State uncertain and of the parties not being clear as to what was
or was not required of them. Further, some express concern that this proposal
would not be consistent with the Court’s task of adjudicating concrete cases
and where appropriate ordering effective remedies, while advising respondent
States about the measures needed to secure compliance with the Convention.
 Enabling preliminary references to be made from the highest national court; the
Izmir Declaration invites the Committee of Ministers to consider a “procedure
allowing the highest national courts to request advisory opinions from the Court
concerning the interpretation and application of the Convention that would help
clarify the provisions of the Convention and the Court’s case-law, thus
providing further guidance in order to assist States Parties in avoiding future
violations”. As noted above, and drawing upon the practice in European Union
20 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
law, it may be possible to consider whether, under certain well-defined
conditions, the highest national court might be able to refer to the Court a
question on a point of law arising under the Convention, leaving it to the
national court then to apply the legal conclusion to the facts of a particular
case. This, it is argued, would enhance the principle of subsidiarity and could –
potentially at least – remove some cases from the Court’s caseload. Others,
however, express concern that such a procedure, unless the Court in
Strasbourg were able to respond to such requests far more quickly than its
present case load would appear to allow, would delay the ultimate resolution of
the cases concerned to an unacceptable degree. They also note that the
Convention system presupposes that it is for the national court to decide the
facts and decide whether Convention rights have been infringed, recourse to
the Court being open only after all available and effective domestic remedies
have been exhausted.
 Introducing a Statute of the Court which would allow the working practices of
the Court to be changed more quickly; reform proposals in the Interlaken and
Izmir Declarations refer to a Statute for the Court as a possible means by which
to introduce a simplified procedure for amending provisions of the Convention
relating to organisational matters, possibly requiring only a resolution of the
Committee of Ministers for approval. The Evaluation Group and the Group of
Wise Persons also recommended such simplified procedures.12 Such a
measure could go some way to increasing the flexibility of Member States to
undertake future reforms where necessary. However, some consider that it
may be difficult to persuade the Governments of all 47 States to widen the
Court’s ability to manage its cases and exercise a wider area of discretionary
judgment. Some members of the Commission who share the views expressed
by some commentators that the Court is at times too interventionist are also
concerned that this tendency might be reinforced by a Statute conferring
greater independence on the Court in respect of procedural topics.
 Considering some form of ‘democratic override’ or dialogue; in order to
recognise the legitimate role of Parliaments and the democratic process in all
of the Member States. In states where there is a supreme court with powers to
strike down legislation there is always some mechanism, usually requiring an
enhanced majority or approval in more than one forum, whereby the
democratic will can ultimately prevail over court decisions. Section 33 of the
Canadian Charter of Rights and Freedoms is one such power. Some believe
that something equivalent should be considered within the Council of Europe
and that fundamental reforms of the Strasbourg Court need to balance greater
focus and efficiency on the one hand with greater democratic accountability on
the other. The Interlaken Declaration called for a simpler procedure to amend
Convention provisions of an organisational nature; an extension of that
approach could be to empower other institutions of the Council of Europe to
add qualifications to Convention rights. This could allow the effect of a Court
decision to be overridden if such was the will of the Parliamentary Assembly or
Committee of Ministers, or perhaps of both acting collectively. A variant of this
approach might be a power in the Committee of Ministers to determine that a
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 21
Court judgment should not be enforced if it considered that that course of
action was desirable and justifiable in the light of a clear expression of opinion
by the relevant Member State’s most senior democratic institution. Another
variant could be a requirement in respect of proposed ground-breaking findings
of violations for the Court first to consult the other Council of Europe institutions
and for the Court to take a collective expression of opinion into account.
Those opposed to this concept argue that any possibility of override is
fundamentally inconsistent with the Rule of Law inherent in the Convention
system and with the concept of the Convention as a charter of fundamental
rights and freedoms. They ask how, if a right or freedom is fundamental, it can
be right to allow any legislature, however democratic, to override it. They point,
for example, to the fact that there are examples in history of discriminatory laws
being passed by democratically elected assemblies. They note that the ECHR
as a judicial body is an essential protection against majorities voting to
discriminate against minorities.
For some members of the Commission, this area is a key issue and of sufficient
importance that, in the view of one member at least, they would have wished to
have added an additional principle to those mentioned as guiding the interim
advice: namely that the democratic legitimacy of the Strasbourg Court should
be better assured while at the same time ensuring its judicial independence.
This is, however, a matter which the Commission has yet to discuss and
address.
Others argue not that there should be a mechanism of democratic override but
that the absence of any such override should act as a check on “activism” on
the part of the Court. The jurisdiction of the Court should be defined in such a
way as to require it to respect the proper role of democratic institutions in
determining social and economic priorities, particularly those that involve
allocation of financial and other resources. However, those who question the
charge of judicial activism argue that there is no evidence that the Court can
fairly be criticised for over-reach and that the Court in fact allows the State
authorities a wide margin of appreciation or area of discretionary judgment
based on the principle of subsidiarity. They point to the fact that UK courts are
criticised in the same way when they interpret and apply the law in ways that
create controversy, but that a purposive approach to statutory interpretation,
which updates the law, is well established in the common law.
 Introducing subsidiarity reviews by analogy to the EU treaty; the Lisbon Treaty
introduced into the procedures of the EU the possibility of review by the
European Court of Justice of a proposal where a challenge to it on the ground
of infringement of subsidiarity is made supported by 25% (or in other cases
33%) of the parliamentary voting strength of the EU Member States. The
principle of one institution’s judgment on subsidiarity being open to challenge
by another might be adopted in the Council of Europe in various ways. One
could be a power in the Committee of Ministers to resolve that a judgment
should not be enforced on the ground that it infringed the principle of
subsidiarity. This would arguably reflect the Izmir Declaration which states that:
22 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
The Conference
2. ... invites the Committee of Ministers to apply fully the
principle of subsidiarity, by which the states Parties have in
particular the choice of means to deploy in order to conform
to their obligation under the Convention.
An alternative approach could be to leave the decision on subsidiarity with the
Court but to build in new arrangements for the submission to the Court prior to
a case’s final consideration of formal memoranda contending that the proposed
finding of violation is a matter on which democratic states should have a choice
of means to comply with the Convention. A third approach could be
acceptance of the jurisdiction of an external international body to determine a
challenge that the Strasbourg Court had exceeded its competence by an
infringement of the principle of subsidiarity.
A counter-argument to such an approach is that the Court and the Committee
of Ministers already give full effect to the principle of subsidiarity, and that the
Court requires no direction or guidance from the political branches of
international or national governments on how to interpret and apply Convention
law. A further counter-argument is that, unlike the EU, there is within the
institutions of the Council of Europe no directly elected body such as the
European Parliament to which such a role might be given.
CONCLUSION
5. I hope this letter is useful to you at least in indicating some of the further areas
into which the Commission may decide to enquire further as part of its future
work programme. As with my parallel letter conveying the Commission’s interim
advice on Court reform, I am intending to publish this letter, so that others are
able to comment upon it if they so wish, in parallel with that advice once
Parliament returns in early September.
6. I am sending a copy of this letter to the Foreign Secretary and Lord McNally.
Yours sincerely
Sir Leigh Lewis KCB
Chair of the Commission
cc Rt Hon William Hague MP, Secretary of State for Foreign and Commonwealth
Affairs
cc Rt Hon Lord McNally, Minister of State for Justice and Deputy Leader of the
House of Lords
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 23
24 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Annex D The Commission’s Discussion Paper, Do we need a UK Bill of Rights? August 2011 A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 25
26 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Discussion Paper
Do we need a
UK Bill of Rights?
August 2011
revised September 2011
© Members of the Commission on a Bill of Rights 2011
You may re-use this information (not including logos) free of charge in any format or
medium, under the terms of the Open Government Licence. To view this licence, visit
http://www.nationalarchives.gov.uk/doc/open-government-licence/
Any enquiries regarding this publication and copyright should be sent to us at
[email protected]
This publication is available for download on the Commission’s website at
www.justice.gov.uk/about/cbr/index.htm
1
Contents
Introduction
3
Questions for Public Consultation
4
Background
5
The UK Constitution
5
Parliamentary sovereignty
5
The Rule of Law
5
International Human Rights Conventions
5
The Origins of the European Convention on Human Rights
6
Convention rights and freedoms
7
Giving effect to the Convention
7
How the Convention rights are given effect in UK law
8
The Human Rights Act 1998
8
The Joint Parliamentary Human Rights Committee
9
The Equality and Human Rights Commission
10 Scotland
10 Northern Ireland
10 Wales
11 European Union rights
11 We hope to hear from you soon.
11 Alternative formats
12 Confidentiality
12 Endnotes
13 2
Introduction
1. The Commission on a Bill of Rights is an independent Commission set up by the
Government1 and required by our Terms of Reference2
“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,
ensures that these rights continue to be enshrined in UK law, and protects and
extends our liberties.
“To examine the operation and implementation of these obligations, and
consider ways to promote a better understanding of the true scope of these
obligations and liberties.
“To provide advice to the Government on the ongoing Interlaken process to
reform the Strasbourg court ahead of and following the UK’s Chairmanship of
the Council of Europe.
“To consult, including with the public, judiciary and devolved administrations
and legislatures, and aim to report no later than by the end of 2012.”
2. The Commission has decided to begin to consult by seeking views from the
public on the four questions set out in paragraph 5.
3. As regards the need to reform the European Court of Human Rights, on which we
are also asked to give advice to the Government, we are not asking detailed
questions at this stage. The Government has asked for our preliminary views on
this within a limited timeframe, and our further views will be given at a later stage,
when we may consult further. Any views on this aspect of our work which you
would like to give us at this stage would, however, be welcome. As background
we include the text of the Interlaken Declaration and a subsequent Declaration
agreed by the forty seven Member States of the Council of Europe at Izmir.
4. The purpose of this Discussion Paper is to begin the process of public
consultation.
3
Questions for Public Consultation
5. The four questions on which we seek your views are:
(1) do you think we need a UK Bill of Rights? If so, (2) what do you think a UK Bill of Rights should contain?
(3) how do you think it should apply to the UK as a whole, including its four
component countries of England, Northern Ireland, Scotland and Wales?
(4) having regard to our terms of reference, are there any other views which you
would like to put forward at this stage?
6. The remainder of this paper sets out background to these questions, and is put
forward as an aid to understanding. It aims to describe the current position in
purely factual terms.
4
Background The UK Constitution
7. The United Kingdom is unlike most other democratic countries in Europe and the
Commonwealth (apart from New Zealand) in having neither a comprehensive
written constitution nor a constitutional charter of fundamental rights which is
supreme over ordinary law and able to be amended only by a special prescribed
procedure. We have no comprehensive constitutional charter which establishes
and gives limited powers to the institutions of government, or which confers and
protects the civil and political rights of citizens, or which restricts Parliamentary
sovereignty.
8. There are thus no British rights that are ‘fundamental’ in the sense that they
enjoy special constitutional protection against Parliament. The liberties of the
subject are implications derived from two principles. The first principle is that we
may say or do as we please, provided that we do not transgress the substantive
law or the legal rights of others. The second principle is that the Crown and
public authorities may only act if they have the power to do so. These powers
can derive from legislation, common law and – as far as the Crown is concerned
– the royal prerogative. Our laws are a combination of statute law and the
principles of the common law and equity developed by our courts. Our system is
based upon the constitutional principles of Parliamentary sovereignty and the
Rule of Law.
Parliamentary sovereignty
9. The principle of Parliamentary sovereignty means that the power to legislate may
be exercised only by Parliament. The principle of Parliamentary sovereignty also
means that Parliament cannot limit the power of a future Parliament to amend or
repeal legislation.
The Rule of Law
10. The Rule of Law means, among other things, that it is the responsibility of the
independent judiciary to interpret and apply the law impartially and fairly, free
from government influence or interference.
11. Our constitutional system is also different from that of some other countries in
that international treaties do not automatically become part of our law.
Parliamentary legislation, such as the European Communities Act 1972, is
passed to bring international obligations into domestic law.
International Human Rights Conventions
12. In December 1948, the UN General Assembly adopted the Universal Declaration
of Human Rights, recognising the universality of human rights. In 1976, two UN
International Covenants – a Covenant on Civil and Political Rights, and a
Covenant on Economic, Social and Cultural Rights – came into force. They are
reinforced by several UN human rights conventions, for example, against torture,
5
race and sex discrimination, and protecting the rights of the child and of the
disabled.
13. These international treaties are binding in international law on the UK, but they
have not been directly incorporated by legislation into UK law. However, their
reporting mechanisms and comments influence UK policy and practice and are
taken into account by our courts and lawmakers where relevant. Our courts
operate a presumption that where a treaty has been accepted by the Government
on behalf of the UK and its citizens, Parliament is presumed to legislate to give
effect to the terms of the treaty when introducing legislation in that area.
The Origins of the European Convention on Human Rights
14. The Convention was created in the aftermath of the Second World War which
convinced many European politicians and jurists of the need to guard against the
rise of dictatorships and to reduce the risk of relapse into another European war.
This led to the creation, in 1949, of the Council of Europe. Members of the
Council are obliged to accept the principles of the rule of law and the enjoyment
by all peoples within their jurisdiction of human rights and fundamental freedoms.
15. One of the Council of Europe’s first acts was to draft a human rights Convention
for Europe, conferring enforceable rights upon individuals against sovereign
states, intended to provide a European mechanism for the enforcement of
certain rights.
16. On 23 January 1951,3 in accordance with standard UK practice for the ratification
of treaties, the text of the Convention was laid before both Houses of Parliament
for 21 sitting days in accordance with the ‘Ponsonby Rule’.4 No member of either
House of Parliament prayed against it, thus there was no Parliamentary debate.
However, the Convention was discussed during a House of Commons debate on
the Council of Europe on 13 November 1950, one week after the UK’s signature
of the Convention.5 The UK was the first state to ratify the Convention, on 8
March 1951.
17. The Convention came into force on 23 September 1953. The Convention has
now been ratified by the forty-seven Member States of the Council of Europe, with
a population of over 800 million people, including Russia and the majority of
former countries of the Soviet bloc.
18. Subsequent to its introduction, the Convention has been amended or
supplemented by several Protocols. Additional rights to protection of property,
education and free elections were added by Protocol No.1 to the Convention,
ratified by the UK on 3 November 1952. The UK has since ratified Protocol No. 6
on abolishing the death penalty6 and Protocols Nos. 11 and 14 which have
amended the Convention enforcement machinery.7 It has not ratified Protocols
Nos. 4, 7 nor 12 which contain further rights.8
19. At its inception, only countries, and not individuals, could bring complaints under
the Convention. However, the right of individual complaint or petition to the
European Commission of Human Rights (as it then was) was accepted by the
UK in January 1966 without Parliamentary debate.
6
Convention rights and freedoms
20. The Convention identifies the following human rights and freedoms:
• Right to life (Article 2);
• Prohibition of torture or inhuman or degrading treatment or punishment
(Article 3);
• Prohibition of slavery or servitude, or forced or compulsory labour (Article 4);
• Right to liberty and security(Article 5);
• Right to a fair trial (Article 6);
• No punishment without law (Article 7);
• Right to respect for private and family life, home and correspondence (Article
8);
• Freedom of thought, conscience and religion (Article 9);
• Freedom of expression (Article 10);
• Freedom of peaceful assembly and association (Article 11);
• Right to marry (Article 12);
• Right to an effective remedy (Article 13);
• Prohibition of discrimination (Article 14).
21. Protocol No. 1 includes the following:
• Protection of property (Article 1);
• Right to education (Article 2);
• Right to free elections (Article 3).
Giving effect to the Convention
22. Article 1 of the Convention provides that contracting states must “secure to
everyone within their jurisdiction” the Convention rights. States and their public
authorities – legislative, executive, and judicial – are required to respect these
Convention rights and freedoms and have positive obligations to secure them
within their national legal systems. Article 13 of the Convention obliges States
and their public authorities to provide effective remedies for violations of the
Convention rights.
23. At the same time, Article 35(1) of the Convention provides that (unless they are
ineffective) domestic remedies must have been exhausted before an application
may be made to the Strasbourg Court. This is to provide the State with the
opportunity to remedy the matter itself. The Strasbourg Court is thus intended
mainly to be a supervisory Court of last resort, and the main responsibility for
enforcing human rights is meant to be that of the domestic authorities, who are in
the best position to do so.
24. Article 46 of the Convention also imposes a duty on contracting states to abide
by final judgments of the European Court of Human Rights where the Court
decides that there has been a violation of the Convention. The supervision of the
7
execution of final judgments of the Strasbourg Court is carried out by the
Committee of Ministers of the Council of Europe, which decides whether the
State has adopted sufficient individual and general measures to enable the case
to be closed.9 If a state were unwilling or unable to abide by a final judgment, it
would have the option of withdrawing from the Convention system. Article 58 of
the Convention provides that a state has to give six months’ notice in order to
denounce the Convention.
How the Convention rights are given effect in UK law10
25. The obligation to provide effective remedies under Article 13 of the Convention is
met in the UK by a combination of common law and statute law.
26. Statutes and other documents such as Magna Carta in 1215 and the Declaration
of Arbroath in 1320, the later Bill of Rights and Scottish Claim of Right in 1689,
and the Reform Acts of the 19th and early 20th centuries, hand in hand with
developments of the common law reflect the traditions of liberty on which our
current framework of rights and responsibilities is built. The Convention sought to
reflect that tradition. Our courts have recognised constitutional rights inherent in
the common law as matching some Convention rights, including a right of access
to justice, a right to freedom of expression, a right to respect for private life, and
a right to equal treatment without discrimination.
27. Apart from specific legislation giving direct or indirect effect to particular
Convention rights, the main legislative ways in which the Convention rights have
been given effect is by means of the Human Rights Act 1998 and the devolution
legislation for Northern Ireland, Scotland and Wales.
The Human Rights Act 1998
28. The Human Rights Act provides legal remedies for violations of Convention
rights while adhering to the doctrine of Parliamentary sovereignty by withholding
from our courts the power to strike down Acts of Parliament that are held to be
incompatible with Convention rights.
29. The Act requires our courts and tribunals to take into account judgments of the
European Court of Human Rights where they are relevant. So far as possible, it
also requires legislation to be read and given effect in a way which is compatible
with the Convention rights. Where a specified higher court considers that a
provision in an Act of Parliament is not compatible with a Convention right, the
Human Rights Act empowers the court to make a declaration of incompatibility.
30. A declaration of incompatibility does not affect the validity, continuing operation
or enforcement of the provision in respect of which it is given. So the relevant
legislative provision continues to have force and effect, despite its incompatibility
with Convention rights, until such time as it is amended. It is for the Government
to decide whether to seek to amend the law. If it decides not to do so, the
alleged victim of a violation may have recourse to the European Court of Human
Rights, but has no further remedy under UK law.
31. The Human Rights Act also makes it unlawful for any public authority (which
includes courts and tribunals but excludes Parliament) to act in a way which is
8
incompatible with a Convention right (apart from where they are required by
primary legislation to act in that way).
32. A person who claims that a public authority has acted or proposes to act in a
manner made unlawful by the Act may bring proceedings provided that the
claimant is a victim within the meaning of the Convention. The Act empowers a
court or tribunal to grant appropriate remedies when it finds that a public
authority has acted or proposes to act in a way which is incompatible with
Convention rights and has therefore acted unlawfully. However, no award of
damages may be made unless it is necessary, having regard to any other
remedy, to afford ‘just satisfaction’ to the claimant. When deciding whether to
award damages, or the amount of an award, the court or tribunal must take into
account the principles applied by the Strasbourg Court in awarding
compensation under Article 41 of the Convention.
33. The Act provides that a person’s reliance on a Convention right does not restrict
any other right or freedom conferred on him by or under any law having effect in
any part of the UK. The purpose of this is to safeguard more generous rights
which may be enjoyed apart from the Human Rights Act, whether at common law
or under other legislation.
34. Section 19 of the Act requires a Minister in charge of a Bill to make a statement
before the second reading of the Bill that in his or her view its provisions are
compatible with Convention rights, or, if unable to make such a statement of
compatibility, that the Government nevertheless wishes the House to proceed
with the Bill. The purpose is to ensure that in the preparation of a Bill and its
passage through Parliament, consideration is given to any implications the Bill
may have in relation to Convention rights, and to ensure that any relevant issues
are identified at an early stage so that they can be the subject of informed
debate in Parliament.
The Joint Parliamentary Human Rights Committee
35. So far as the work of Parliament is concerned, an independent cross-party Joint
Parliamentary Committee of both Houses of Parliament (the JCHR) enables
systematic Parliamentary scrutiny of government measures for their compatibility
with the Convention rights and the other human rights conventions to which the
UK is party.11 The JCHR scrutinises proposed legislation for compatibility with
the UK’s obligations under the Convention and other human rights treaties by
which the UK is bound. Where necessary it questions Ministers. The JCHR also
monitors the Government’s response to judgments on human rights from the
European and UK courts, and conducts thematic inquiries into particular human
rights issues (for example, deaths in custody, care for the elderly, business and
human rights, human trafficking, extradition and deportation procedures, the
operation of anti-terrorist legislation, and the right of disabled people to
independent living).
9
The Equality and Human Rights Commission
36. The Equality and Human Rights Commission (EHRC) was set up by the Equality
Act 2006 with duties not only as regards equality and diversity, but also as
regards Convention and other human rights.12 It has monitoring and advisory
powers. The EHRC may institute or intervene in legal proceedings, and may rely
in judicial review on alleged breaches of the Convention rights, even though it is
not a victim or potential victim.13
Scotland
37. Scotland is a separate jurisdiction from England and Wales and from Northern
Ireland, with its own distinctive legal history and traditions, its own body of
common law and statute law, its own system of courts and its own legal
profession. However, the Human Rights Act applies to Scottish public authorities
in the same way as it applies to public authorities elsewhere in the UK.
38. The Convention has been given further effect in Scotland by virtue of the
devolution settlement. Under the Scotland Act 1998, actions by members of the
Scottish Government14 and legislation enacted by the Scottish Parliament15 must
be compatible with the Convention. Legislation or actions which are found to be
incompatible by the courts are liable to be declared to be beyond the powers
conferred and to be held invalid.
39. A Scottish Commission for Human Rights was set up by Act of the Scottish
Parliament in 200616 with a general duty to promote human rights and to
encourage best practice in relation to human rights, including not only the
Convention rights but those in other human rights treaties ratified by the UK.17
Northern Ireland
40. Under the terms of the Northern Ireland Act 1998, Ministers and Northern Ireland
departments are not permitted to act in a way which is incompatible with the
Convention.18 Similarly the Northern Ireland Assembly does not have
competence to legislate in a manner incompatible with the Convention.19
41. The Northern Ireland Human Rights Commission (NIHRC) is an independent
statutory body set up in 1999 with wide functions, including giving assistance to
individuals in court proceedings, and bringing proceedings itself. It is required by
statute to advise the Secretary of State for Northern Ireland on the scope for
defining, in a Bill of Rights for Northern Ireland to be enacted by the Westminster
Parliament, rights supplementary to those in the Convention. The Belfast (Good
Friday) Agreement of 1998 states that the Bill should reflect the particular
circumstances of Northern Ireland, drawing as appropriate on international law
and experience.
42. On 10 December 2008, the NIHRC presented its Advice on a Bill of Rights for
Northern Ireland to the Government. It made a number of recommendations for
inclusion in a Bill of Rights.20
43. The Government published its paper “A Bill of Rights for Northern Ireland: Next
Steps” for consultation, and the NIHRC made a written response to that paper on
17 February 2010.21
10
Wales
44. The Laws in Wales Act 1535 provided that England and Wales were united and
the Welsh and the English were to be subject to the same laws and have the
same privileges. Since that time, there has been one legal system for England
and Wales. However, the Government of Wales Act 1998, which has since been
modified by the Government of Wales Act 2006, provides an additional route for
the application of the Convention to Wales.
45. The devolution arrangements set out in the Government of Wales Act 2006
place a requirement upon the National Assembly for Wales22 and the Welsh
Ministers23 to act compatibly with the Convention. Following a referendum, the
legislative competence of the Assembly was extended in May 2011 to enable the
Assembly to enact primary legislation on its own initiative within the subject
areas listed in Schedule 7 to the Government of Wales Act 2006.24 Legislation
that is incompatible with Convention rights is outside of the legislative
competence of the Assembly and is liable to be held invalid.25
European Union rights
46. In 2007 the institutions of the European Union proclaimed the EU Charter of
Fundamental Rights.26 This includes a number of social, economic and political
rights and principles that do not appear in the Convention. The Charter applies to
the institutions of the European Union, and to the Member States “only when
they are implementing Union law”.27 The Charter, where it applies, has the same
legal force as the Treaties.28 Under Protocol 30 to the Lisbon Treaty, the Charter
does not contain any new justiciable rights applicable to the United Kingdom or
Poland. The Treaties also provide that fundamental rights guaranteed by the
Convention and the common constitutional traditions of the Member States are
general principles of EU law.29
We hope to hear from you soon.
47. We hope to begin hearing your views on a Bill of Rights for the UK and the
related issues raised by our Terms of Reference. We would like to receive your
views by 11 November 2011. Unless you specifically request otherwise, all
responses will be made public.
48. All responses should be sent to the inbox or address below:
[email protected]
Commission on a Bill of Rights Postpoint 9.55 102 Petty France London SW1H 9AJ 11
Alternative formats
If you require this information in an alternative language, format or have general
enquiries about the Commission on a Bill of Rights, please contact us by email at
[email protected], telephone us at 020 3334 2486 or
write to us at:
Commission on a Bill of Rights
Postpoint 9.55
102 Petty France
London
SW1H 9AJ
Confidentiality
All written representations and evidence provided to the Commission will, unless
publication is unlawful, be made public unless specifically requested otherwise. If you
would like any of the information provided in your response to be treated
confidentially, please indicate this clearly in a covering note or e-mail (confidentiality
language included in the body of any submitted documents, or in standard form
language on e-mails, is not sufficient), identifying the relevant information and
explaining why you regard the information you have provided as confidential. Note
that even where such requests are made, the Commission cannot guarantee that
confidentiality will be maintained in all circumstances, in particular if disclosure
should be required by law. If you have any particular concerns about confidentiality
that you would like to discuss, please contact the Commission at:
[email protected]
The Commission is not subject to the requirements of the Freedom of Information Act
2000. However once the Commission has completed its work its papers are likely to
be passed to the Government. In these circumstances information formerly held by
the Commission may then be subject to the requirements of that legislation.
The Commission is a data controller within the meaning of the Data Protection Act
1998. Any personal data provided will be held and processed by the Commission and
its Secretariat only for the purposes of the Commission’s work, and in accordance
with the Data Protection Act 1998. Once the Commission has completed its work
then any personal data held is likely to be passed to the Government for the purpose
of public record-keeping.
12
Endnotes
1
The Commission’s creation was announced by Mr Mark Harper MP (Parliamentary
Secretary, Cabinet Office) on 18 March 2011 in a written Ministerial Statement (HC
Deb 18 March 2011 c 32WS) as follows:
“The Government have established an independent Commission to investigate the creation of a UK Bill of Rights, fulfilling a commitment we made in our Programme for Government. The Commission will explore a range of issues surrounding human rights law in the UK and will also play an advisory role in our continuing work to press for reform of the European Court of Human Rights in Strasbourg. “The UK will be pressing for significant reform of the European Court of Human Rights, building on the reform process underway in the lead up to our Chairmanship of the Council of Europe later this year. We will be pressing in particular to reinforce the principle that states rather than the European Court of Human Rights have the primary responsibility for protecting Convention rights. “The Commission will be chaired by Sir Leigh Lewis KCB, a former permanent secretary at the Department for Work and Pensions with a long career in public service. He will be joined on the Commission by Jonathan Fisher QC, Martin Howe QC, Baroness Kennedy of The Shaws QC, Lord Lester of Herne Hill QC, Philippe Sands QC, Anthony Speaight QC, Professor Sir David Edward QC and Dr Michael Pinto-Duschinsky. “The Commission members have, between them, extensive legal expertise and experience, and we expect the Commission to take into account a broad range of views as it fulfils its remit. In addition, an advisory panel will be established to provide advice and expertise to the Commission on issues
arising in relation to Scotland, Wales and Northern Ireland. The Commission will report jointly to the Deputy Prime Minister and the Secretary of State for Justice. The Commission will be supported by a small secretariat of civil servants.” 2
The Coalition’s Programme for Government said: “We will establish a Commission
to investigate the creation of a British Bill of Rights that incorporates and builds on
all our obligations under the European Convention on Human Rights, ensures that
these rights continue to be enshrined in British law, and protects and extends
British liberties. We will seek to promote a better understanding of the true scope of
these rights and obligations.” See Cabinet Office:
http://www.cabinetoffice.gov.uk/sites/default/files/resources/coalition_programme_for_government.pdf
3
See HC Deb 5 February 1951 vol 483 cc 159-60W.
4
The power to make treaties is a Prerogative power vested in the Crown, but under
the Ponsonby Rule, the Government lays all treaties subject to ratification (with
limited exceptions) before both Houses of Parliament for 21 sitting days before
13
ratification (or its equivalent) is effected: Foreign Office, “Ponsonby Rule”, http://www.fco.gov.uk/resources/en/pdf/pdf4/fco_pdf_ponsonbyrule. See also Gardiner, Richard K., International Law (Edinburgh: Pearson Education Limited, 2003), pp. 148-9. 5
See HC Deb 13 November 1950 vol 480 cc 1392-504.
6
The UK signed Protocol No. 4 on 16 June 1963 but has yet to ratify. Protocol No. 4
entered into force for the other signatories from 2 May 1968. The UK signed
Protocol No. 6 on 27 January 1999 and ratified it on 20 May 1999. Protocol No. 6
entered into force for the UK on 1 June 1999.
7
The UK signed Protocol No. 11 on 11 May 1994 and ratified it on 9 December
1994. Protocol No. 11 entered into force on 1 November 1998. The UK signed
Protocol No. 14 on 13 July 2004 and ratified it on 28 January 2005. Protocol No. 14
entered into force on 1 June 2010.
8
The full text of the Convention and its Protocols can be found at:
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/EnglishAnglais.pdf
9
See generally, Supervision of the execution of judgments of the European Court of
Human Rights, 4th Annual Report (2010), Council of Europe, Committee of
Ministers, April 2011.
10
We refer to “UK law” for convenience, while recognising that there are different
laws and courts of England, Northern Ireland, Scotland and Wales.
11
See http://www.parliament.uk/commons/selcom/hrhome.htm
12
Sections 8 and 9.
13
Section 30.
14
Section 57(2).
15
Section 29.
16
The Scottish Commission for Human Rights Act 2006 (2006 asp 16).
17
See http://www.scottishhumanrights.com
18
Section 24(1)(a).
19
Section 6.
20
These included:
• right to equality and prohibition of discrimination;
• right to health;
• education rights;
• freedom from violence, exploitation and harassment;
14
• right to identity and culture;
• right to civil and administrative justice;
• rights to liberty and fair trial;
• language rights;
• rights of victims;
• democratic rights;
• right to an adequate standard of living;
• right to accommodation;
• right to work;
• environmental rights;
• children’s rights.
21
See http://www.nihrc.org/bor
22
Section 94.
23
Section 81(1).
24
The Government of Wales Act 2006 (Commencement of Assembly Act Provisions,
Transitional and Saving Provisions and Modifications) Order 2011 (SI2011/1011).
25
Section 108, Government of Wales Act 2006 (c. 32).
26
The text of the Charter can be found at
http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:303:SOM:en:HTML
27
Article 51.1.
28
Treaty on European Union, article 6(1), 2010/C 83/01.
29
Treaty on European Union, article 6(3), 2010/C 83/01.
15
©Members of the Commission on a Bill of Rights 2011
Alternative format versions of this report are available on request from
[email protected]
16
Annex E The Commission’s Consultation Paper, A Second Consultation, July 2012 A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 45
46 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
July 2012
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 47
© Members of the Commission on a Bill of Rights 2012
You may re-use this information (not including logos) free of charge in any format or
medium, under the terms of the Open Government Licence. To view this licence, visit
http://www.nationalarchives.gov.uk/doc/open-government-licence/
Any enquiries regarding this publication and copyright should be sent to us at
[email protected]
This publication is available for download on the Commission’s website at
www.justice.gov.uk/about/cbr/index.htm
48 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Contents
Chair’s Foreword
50 Background
51 A UK Bill of Rights?
52 Incorporation of the Convention
54 Should the Human Rights Act be replaced, or might any UK Bill of Rights sit alongside the Human Rights Act?
55 How should the rights in any UK Bill of Rights be written?
55 Additional rights?
56 A Right to Equality
56 A Right to Administrative Justice
57 A Right to Trial by Jury
58 Rights in criminal and civil justice
59 Rights for victims
59 Socio-economic rights
60 Children’s rights
61 Environmental rights
61 Balancing certain rights
62 Definition of ‘public authority’
63 Responsibilities
64 The duty to take Strasbourg case law into account
66 Declaration of incompatibility
66 Northern Ireland, Scotland and Wales
67 Other issues
69 We hope to hear from you soon.
69 Alternative formats
69 Confidentiality
70 List of Questions in this Consultation Paper
71 Endnotes
73 A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 49
Chair’s Foreword
Our Commission is now at a significant stage in its work. Over the last 15 months we have
consulted widely, met with numerous groups and individuals from around the UK, including
Northern Ireland, Scotland and Wales, and held a series of seminars at which we have
asked for views on the key questions in our terms of reference.
Now we have to decide what to recommend. In particular, we have to decide whether to
recommend a UK Bill of Rights and, if so, what form and content it should have.
I want to stress as the Commission’s Chair that we have reached no conclusions on this key
question at this stage. If we do decide to recommend a UK Bill of Rights we will want to
explain why and set out what form we think such a Bill might take. If we decide not to
recommend a Bill of Rights we will equally want to explain our reasons for arriving at that
conclusion though we may still want to make some observations about such a Bill against
the possibility that the Government nevertheless decides to introduce one.
This second public consultation gives you a further opportunity to influence our deliberations
by giving us your views both on the fundamental question of whether you believe that a UK
Bill of Rights would or would not be beneficial and on what form you believe any such Bill
might take. It poses a set of questions on both of these issues on which we would greatly
welcome your views.
Time is now important in that we are committed to reporting our recommendations to the
Government by the end of this year. So we are asking for your views by the end of
September at the latest to ensure that we can take them into account in reaching our final
conclusions.
If you were one of the over 900 organisations and individuals who responded to our first
public consultation last summer, you do not need to repeat what you said then which we
have already taken into account in our work. But we would like to hear from you again on the
questions set out in this paper. Equally if you did not respond to our first consultation that is
no bar whatsoever to giving us your views now which we would greatly welcome.
The questions which our Commission is asked to consider go to the heart of the kind of
country we want to be. You can help us to give the best answers we can by replying to this
consultation. Thank you.
Sir Leigh Lewis
Chair of the Commission on a Bill of Rights
50 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Background
1. The Commission on a Bill of Rights was established by the Government in March 2011
to investigate the creation of a UK Bill of Rights and to provide advice on reform of the
European Court of Human Rights.1
2. In July 2011 we provided interim advice to Government and a parallel letter to Ministers
on reform of the Court (see http://www.justice.gov.uk/about/cbr). In August 2011 we
published a discussion paper that sought views on certain key questions including: Do
we need a UK Bill of Rights? If so, what should it contain? How should it apply to the
UK as a whole, including its four component countries of England, Northern Ireland,
Scotland and Wales?
3. We received over 900 responses to this discussion paper which have been very
valuable to us in our consideration of the many issues raised by our inquiry. We have
posted a list of respondents, as well as copies of all the responses we received, on
the Commission’s webpages (see http://www.justice.gov.uk/about/cbr/consultation­
prog). We are very grateful for the effort and thought that went into providing these
contributions to us.
4. In addition to our review of these responses, we have been carrying out a substantial
programme of consultation on a UK Bill of Rights and on reform of the European
Court of Human Rights. We have held meetings in Belfast, Cardiff, Edinburgh,
Birmingham, Oxford, Strasbourg and in London; and we have met with a wide range
of people and organisations from across the UK, including Parliamentarians from all
of the legislatures in the UK, senior members of the judiciary, community and human
rights organisations and members of the wider public. We have held three major
seminars – the outcomes of which you can read on our website – and held many
meetings with interested organisations, public authorities and academics. We have
also regularly placed on our website information which we hope will help people to
see the work we have been engaged on including:
a. minutes of all of the Commission’s monthly meetings;
b. detailed summaries of our discussions on the issues of Parliamentary sovereignty,
hypothetical options for a UK Bill of Rights and issues relating to Northern Ireland,
Scotland and Wales (see the minutes of the Commission’s meetings for November
2011, December 2011 and January 2012 respectively:
http://www.justice.gov.uk/about/cbr/meetings); and
c. detailed summaries of the seminars that we co-hosted with the Arts and Humanities
Research Council on 23 February 2012 and with All Souls College, Oxford on 21
March 2012, as well as a transcript of our seminar held in Birmingham on 13 June
2012 (see http://www.justice.gov.uk/about/cbr).
5. Our consultations to date have been valuable and have contributed to our
deliberations and our thinking. Our consideration of the many issues that we face has
evolved considerably in the 15 months since we started our work. We are now at the
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 51
point where we would like both to provide a final opportunity for people to give us their
views on the key issue of whether they believe the UK should have a Bill of Rights
and, if so, to ask some further questions about the kind of UK Bill of Rights that
people might want to see if we were to recommend one. We wish to stress, however,
that we have reached no decisions yet on whether to recommend such a Bill. Asking
these questions should not in any way be assumed to mean that we are likely to
make such a recommendation or that we are inclining towards doing so. But to help
us make up our minds we do want to know more about people’s views both on
whether they favour a UK Bill of Rights or not and, if so, on what form they think such
a Bill might take.
6. We are conscious that many respondents have already given us their views on some
of these issues in their replies to our first discussion paper. We have already taken
careful note of these replies, and we do not need respondents to write to us again
with the same reply. But if your thinking has evolved or changed since your earlier
reply or you did not respond to our earlier consultation this is a further opportunity to
let us know what you think.
7. We are due to report to Government no later than December of this year. We not only
welcome your contributions to these issues, but we consider them vital to our
deliberations.
8. We therefore request that responses to this consultation should reach us by no later
than 30 September 2012.
A UK Bill of Rights?
9. In the discussion paper that we published in August 2011, we asked whether you
thought that we needed a UK Bill of Rights, which is the core question that we are
asked to investigate in our terms of reference. We also asked what you thought any
UK Bill of Rights should contain, how it should apply to Northern Ireland, Scotland,
Wales and England, and whether there were any other matters on which you wished
to provide your views. These are questions on which we have also received views
throughout our consultations.
10. Of the respondents to our first consultation paper approximately a quarter advocated
a UK Bill of Rights; just under half opposed such a Bill; with the remainder being
neither clearly for nor against such a Bill.
11. A variety of models for a UK Bill of Rights were envisaged both by those advocating,
and by those opposing, such a Bill. In particular, a section of those who were against
a Bill of Rights opposed it because they considered that a UK Bill of Rights would be
“HRA (Human Rights Act) minus”, whilst a proportion of those supporting such a Bill
did so because they envisaged it as building on the Human Rights Act by the
inclusion of additional rights.
52 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
12. Views were expressed by opponents of a UK Bill of Rights in particular that the
Human Rights Act 1998 was already a legally enforceable bill of rights and that it was
working well, and that, even if it had flaws, a UK Bill of Rights was not the answer
because it would pose risks to rights protections in the UK. These risks, in the view of
some, stemmed from a political motivation to dilute human rights protections and to
reduce the powers of the European Court of Human Rights.
13. Some respondents, in particular in Northern Ireland, Scotland and Wales, were also
concerned that any attempt to introduce a UK Bill of Rights at this time could have
adverse constitutional and political consequences for the UK, particularly if it were
undertaken to the exclusion of a Bill of Rights for Northern Ireland or if it were
undertaken without regard to the implications of the independence debate in
Scotland. It was also argued by many of these respondents that there was little or no
call for a UK Bill of Rights from people in Northern Ireland, Scotland or Wales. It was
also argued by some that the protection of rights was now a matter for the devolved
legislatures rather than for the UK Parliament. We discuss these issues later in this
paper.
14. Finally, some respondents thought that, even if there were problems or perceived
problems with the Human Rights Act, or its adjudication by the courts, there were
other ways to address these, such as improved public education, and through
amendments to the Human Rights Act or to other existing statutory or regulatory
provisions.
15. Views were expressed by those who favoured a UK Bill of Rights that the Human
Rights Act was negatively perceived, that it often resulted in decisions that were
unpopular, and that a UK Bill of Rights would increase public confidence in the legal
protection of their civil rights and liberties against the misuse of public powers.
16. Others who favoured a UK Bill of Rights thought that such a Bill would provide an
opportunity to distance our fundamental rights from the European label which they
have under the European Convention on Human Rights. Some believed that such
rights should be called fundamental or constitutional rights and could be written in
language that better reflected their UK heritage. Some thought such rights should be
entrenched as part of a written constitution while others thought that it would be
sufficient for such a bill of rights to be declaratory.
17. Either way, it was viewed by many of these respondents that a UK Bill of Rights would
have an important symbolic and emotional appeal to the public that they believed that
the Human Rights Act has lacked. Some also thought that a UK Bill of Rights would
provide an opportunity to create or enshrine other constitutional rights and give them
the same status as Convention rights.
18. As noted above we have reached no decisions on what we might recommend on the
issue of a UK Bill of Rights. But through this consultation paper we want to provide a
further opportunity to hear your views on the issue of whether changes to the existing
arrangements are needed and whether a UK Bill of Rights might be desirable, in
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 53
particular by seeking views on the main arguments that have been put to us opposing
or supporting a UK Bill of Rights. We would like to reiterate that if you have already
addressed these issues in your first reply to us, you do not need to reply again.
However, if you would like to elaborate or change your earlier views, or if you did not
respond to our first discussion paper, we would welcome knowing whether you
believe that the UK would benefit or not from having a UK Bill of Rights, and whether
you think there are alternatives to such a proposition. Against that background we
would welcome your views on the first three questions below. The remaining
questions ask about the form and content of a Bill of Rights if there were to be one.
Q1: What do you think would be the advantages or disadvantages of a UK Bill of
Rights? Do you think that there are alternatives to either our existing
arrangements or to a UK Bill of Rights that would achieve the same benefits?
If you think that there are disadvantages to a UK Bill of Rights, do you think
that the benefits outweigh them? Whether or not you favour a UK Bill of
Rights, do you think that the Human Rights Act ought to be retained or
repealed?
Incorporation of the Convention
19. One of the principal effects of the Human Rights Act 1998 was that it ‘incorporated’
the rights in the European Convention on Human Rights which the UK had ratified.
This meant that individuals in the UK could, for the first time, bring claims in domestic
courts for alleged breaches of their Convention rights. Prior to the Act coming into
force, individuals could only seek remedies in the European Court of Human Rights
for breaches of their Convention rights.2
20. If a UK Bill of Rights were to be adopted, some have argued that the UK should return
to the position prior to the Human Rights Act whereby individuals would have to
petition the Strasbourg Court in order to seek a remedy for a breach of their
Convention rights. Others argue that, since the UK would remain bound by its treaty
obligations under the Convention, it would be regressive to remove the right of
individuals in the UK to seek redress for alleged breaches of their Convention rights
directly in UK courts.
Q2: In considering the arguments for and against a UK Bill of Rights, to what
extent do you believe that the European Convention on Human Rights should
or should not remain incorporated into our domestic law?
54 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Should the Human Rights Act be replaced, or might any UK Bill
of Rights sit alongside the Human Rights Act?
21. A related question is whether a UK Bill of Rights should replace the existing Human
Rights Act or sit alongside it. Some people believe that the existing Human Rights Act
is working well and that a UK Bill of Rights should at most supplement that Act,
perhaps by adding further rights to it, or by adding declaratory provisions which would
not be enforceable but could play an important symbolic role. Others suggest that the
negative perceptions of the Human Rights Act and the European Convention on
Human Rights are such that a UK Bill of Rights should replace it.
Q3: If there were to be a UK Bill of Rights, should it replace or sit alongside the
Human Rights Act 1998?
How should the rights in any UK Bill of Rights be written?
22. At the moment, the rights in the Human Rights Act 1998 are written in identical words
to those used in the European Convention on Human Rights. Many of those we have
met have argued that if there were to be a UK Bill of Rights the rights it contained
should still be written in these words to avoid confusion and legal uncertainty. But
others have argued for a UK Bill of Rights to express rights in language that better
reflects their UK constitutional heritage and/or changes in our society since the
original European Convention was drafted in the late 1940s.
23. Most other countries that are signatories, like the UK, to the European Convention on
Human Rights but which also have their own fundamental rights in a written
constitution or other instrument have written these rights in a way that reflects their
own national circumstances and heritage. Amongst these are other countries of the
common law tradition i.e. Cyprus, Malta and Ireland as well as the UK’s overseas
territory of Gibraltar.
24. Some argue in this context that a UK Bill of Rights could usefully draw upon the more
open-textured language of the UN International Covenant on Civil and Political Rights,
or could specify more closely how the broad principles of the Convention are to
operate in a UK context by, for example, defining more precisely the scope of certain
rights or prescribing how certain rights should be balanced against each other (such
as the balance between freedom of expression and personal privacy).
25. Some argue also that a further beneficial effect of changing the way in which rights
were expressed through a UK Bill of Rights might be that both our own courts and the
European Court of Human Rights in Strasbourg would pay greater attention to
particular UK circumstances in deciding UK cases coming before them. On the other
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 55
hand, others believe either that a UK Bill of Rights would make little or no difference
to the way in which the European Court interpreted and applied the Convention rights,
or are concerned that differently worded statements of rights could lead in practice to
a reduction in the protection currently afforded by our courts or the Strasbourg Court.
Against that background we would welcome views on the following questions.
Q4: Should the rights and freedoms in any UK Bill of Rights be expressed in the
same or different language from that currently used in the Human Rights Act
and the European Convention on Human Rights? If different, in what ways
should the rights and freedoms be differently expressed?
Q5: What advantages or disadvantages do you think there would be, if any, if the
rights and freedoms in any UK Bill of Rights were expressed in different
language from that used in the European Convention on Human Rights and
the Human Rights Act 1998?
Additional rights?
26. Our terms of reference require us to investigate the creation of a UK Bill of Rights that
incorporates and builds on the UK’s obligations under the European Convention on
Human Rights, as well as seeking to protect and extend our liberties. Against that
background, a number of people have suggested to us that a UK Bill of Rights should
contain rights additional to those in the Human Rights Act. Others have suggested that
the rights set out in that Act already place a considerable practical and financial burden
on public authorities and that any additional rights would simply increase that burden.
27. Amongst the additional rights that have been proposed by those arguing that a UK Bill
of Rights should contain such rights are the following.
A Right to Equality
28. Proponents argue that a right to equality before the law is a well-established British
constitutional value and legal standard at common law and in equality legislation.
They argue that its inclusion in a UK Bill of Rights would reinforce the UK’s international
human rights obligations as well as bringing the UK more closely into line with a large
number of other countries which have a constitutional guarantee of equality before the
law and equal protection of the law. Most proponents of such a right suggest that it
should be free-standing and thus build on the limited protection against discrimination
that currently exists under the Human Rights Act.3 On the other hand others question
how such a right might operate in practice alongside existing equality legislation in the
UK.
29. If there were to be a right to equality, there are a number of models of possible
wordings. They fall into two main groups. The first are rights to equal treatment by the
56 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
organs of the state. Such a right might be similar to the principle of domestic
administrative law that similar cases should be treated similarly, that is, in a sense, a
right to consistency on the part of the state. An example of a right in this general
category is article 20 of the EU Charter of Fundamental Rights, which states simply
that:
“Everyone is equal before the law.”
30. The second main category of equality rights are prohibitions on discrimination. An
example of such a right is Article 21(1) of the EU Charter which states that:
“Any discrimination based on any ground such as sex, race, colour, ethnic
or social origin, genetic features, language, religion or belief, political or
any other opinion, membership of a national minority, property, birth,
disability, age or sexual orientation shall be prohibited.”
31. Some texts of such rights prohibit discrimination generally: the EU article 21(1) set out
above is an example. Other texts merely prohibit discrimination by the organs of the
state. An example is Protocol 12 to the European Convention, articles 1 and 2 of which
read:
“(1) The enjoyment of any right set forth by law shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.
(2) No one shall be discriminated against by any public authority on any
ground such as those mentioned in paragraph 1.”
32. Rights expressed in any such terms as the above would seem likely to extend the
impact of the Equality Act 2010 in three ways. Firstly, they would extend its reach
beyond the existing list of protected characteristics. Secondly, they would extend the
scope beyond the activities, such as the provision of services, to which the 2010 Act
applies. Thirdly, they would extend the right to equality without the balancing effect of
the express exceptions which the Equality Act contains.
33. Such a potentially far-reaching impact may be considered by some to be
unsatisfactory. States can and do restrict entitlements – for example, on the grounds
of wealth in respect of eligibility for benefits, on the grounds of previous convictions in
respect of eligibility for jury service, and so on. Accordingly, some might be attracted
by a qualified right which is limited by some formula such as “…save as is reasonable
in an open and democratic society.”
34. We would welcome views on both the principle and possible wording of a right to
equality. A Right to Administrative Justice
35. Proponents argue that a right to administrative justice in a UK Bill of Rights could set
out or build on a range of common law rights that exist in certain circumstances such
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 57
as the right to a hearing or to reasons for certain decisions. Most such proponents
believe that the current scope of Article 6 of the European Convention on Human
Rights, referring only to “civil rights and obligations”, provides insufficient protection in
respect of such issues. They also argue that inclusion of a right to administrative
justice in a UK Bill of Rights would give the right the same status that the Convention
rights have in domestic law. It would enable Parliament to enhance the visibility and
value of these fundamental rights and to strengthen public confidence in good
administration. On the other hand others question whether such a right is necessary
given the foundation and standing of existing common law principles of administrative
justice that have been developed by our courts for hundreds of years.
36. If there were to be a right to administrative justice in any UK Bill of Rights there are a
number of ways in which such a right might be expressed. At a general level, it might
simply take the form of a broad statement of a right to decision-making which is
lawful, rational and procedurally fair. Alternatively, such a right might be expressed in
more detail and include reference to the specific principles of administrative justice,
derived from the common law.
37. Examples of a right to administrative justice can be found in other instruments. For
example, Article 41 of the EU Charter of Fundamental Rights provides for a right to
good administration:
“1. Every person has the right to have his or her affairs handled
impartially, fairly and within a reasonable time by the institutions,
bodies, offices and agencies of the Union.
2. This right includes:
a. The right of every person to be heard, before any individual measure which
would affect him or her adversely is taken
b. The right of every person to have access to his or her file, while respecting
the legitimate interests of confidentiality and of professional business
secrecy
c. The obligation of the administration to give reasons for its decision.”
38. We would welcome views on both the principle and possible wording of a right to
administrative justice.
A Right to Trial by Jury
39. Proponents argue that a right to trial by jury in a UK Bill of Rights would ensure that,
at least in certain defined circumstances, an accused person would have a right to be
tried by a jury of his or her peers, a right which has historically existed in the common
law of England and Wales but which they argue has been eroded over the years.
They would therefore like to see the current right to jury trial reinforced by its inclusion
in a Bill of Rights. There are, however, complex questions about the appropriate
scope of any such right in the light of the differences across the three legal systems
within the UK in respect of the use of jury trials.4 Others question whether jury trial
58 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
should be treated as a constitutional right given the criticisms sometimes made about
its operation. For example, some feel that trials before a judge with no jury deliver
better justice in certain circumstances because the requirement on the judge to give
reasons leads to increased transparency. Others consider it inappropriate to present
complex cases such as those involving serious fraud to a lay jury.
40. There are a number of forms that a right to trial by jury in a UK Bill of Rights might
take. For example, Article 11(f) of the Canadian Charter of Rights and Freedoms
states that:
“11. Any person charged with an offence has the right…
(f) except in the case of an offence under military law tried before a military
tribunal, to the benefit of trial by jury where the maximum punishment for
the offence is imprisonment for five years or a more severe punishment.”
41. We would welcome views on both the principle and possible wording of a right to trial
by jury in any UK Bill of Rights.
Rights in criminal and civil justice
42. Proponents argue that the level of protection for accused persons in Articles 5 to 7 of
the European Convention on Human Rights, which concern primarily the right to
liberty and a fair trial, is insufficient. They argue that a UK Bill of Rights should spell
out more clearly the protections already afforded by the common law, such as the
right to be free from arbitrary arrest and detention, the standard of proof in criminal
proceedings, the right to ‘confront’ one’s accuser and witnesses and the right of
access to a court. Some also propose that any person facing a so-called “civil
penalty” or any form of civil award should be entitled to a proper hearing on the
substantive merits either at first instance or on appeal. Others argue that the fact that
these protections already exist in the common law makes it unnecessary to include
them in any UK Bill of Rights.
43. We would welcome views on whether in principle any UK Bill of Rights should contain
rights of this kind for accused persons.
Rights for victims
44. It is also often suggested in the context of a Bill of Rights that there should be recognition of, or specific provision for, the rights of victims of crime. 45. Proponents suggest that such recognition or provision would help ensure that the
focus of rights is not just, as some perceive, on those accused of crimes, but also on
those who have suffered harm as a result of crime. A Bill of Rights might also serve
as a guarantee to victims of being treated with respect, fairness and dignity.
46. A Bill of Rights could give enforceable or declaratory expression to the protections
currently afforded to victims by for example:
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 59
- highlighting the state’s positive obligations to protect individuals’ right to life
under the Convention;
- highlighting the protection afforded by the criminal law i.e. the fact that the state
provides protection to victims or potential victims by criminalising certain conduct
and prosecuting and punishing offenders;
- highlighting or augmenting existing rights to a remedy, such as the protections
afforded where negligence has caused injury; and/or
- setting out procedural rights, such as the Victim’s Personal Statement which
gives victims a voice in their case before sentencing.
47. Others believe, however, that there is already an adequate level of protection and
clear voice for victims in the criminal justice system and that no additional provision is
necessary.
48. We would welcome views on whether in principle any UK Bill of Rights should contain
rights of this kind for victims.
Socio-economic rights
49. Proponents argue that neither the European Convention on Human Rights nor the
Human Rights Act provide adequate protection for a category of rights known as
economic, social and cultural rights. Such rights, which are found in a number of bills
of rights in other countries, can include rights to adequate healthcare and housing, a
right to education, a right to a minimum standard of living, and a range of other social
security entitlements. For example, article 27 of the Constitution of the Republic of
South Africa 1996 provides that:
“1. Everyone has the right to have access to
a.health care services, including reproductive health care;
b.sufficient food and water; and
c.social security, including, if they are unable to support themselves and their
dependants, appropriate social assistance.
2. The state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation of each of
these rights.
3. No one may be refused emergency medical treatment.”
50. Others question whether rights of this kind are appropriate for adjudication by courts,
since they necessarily deal with fundamental questions of public resources and
policy, which they argue are more properly the responsibility of elected legislators
who are democratically accountable rather than of judges who are not. Some suggest
for this reason that if there were to be any recognition of such rights in a UK Bill of
Rights the provisions should be declaratory or aspirational only, rather than
enforceable by courts.
60 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
51. We would welcome views on whether socio-economic rights should be included in a
UK Bill of Rights and, if so, what they should be and whether they should be
enforceable.
Children’s rights
52. Proponents argue that neither the European Convention on Human Rights nor the
Human Rights Act provide adequate protection for children’s rights. They point out
that the UK is bound under the United Nations Convention on the Rights of the Child
to provide certain children’s rights, yet these have generally not been incorporated
into domestic law or at least not in one consolidated instrument. They see a UK Bill of
Rights as an opportunity to set out and consolidate children’s rights into one binding
and enforceable domestic instrument. Others, however, believe that children’s rights
are already adequately protected or could be further protected in the UK through
ordinary legislation, and that the inclusion of certain of these rights in a UK Bill of
Rights rather than in specific legislation might raise complex enforcement questions
given that they relate to issues such as standards of living and services which many
views as policy questions for elected legislators rather than for the unelected judiciary.
53. Again there are a number of different ways in which such rights could appear in a UK
Bill of Rights. At one end of the spectrum a Bill might set out most or all of the rights in
the UN Convention, but this is a long document running to 54 articles. At the other
end of the spectrum a Bill might follow Article 24 of the EU Charter which states that:
“1. Children shall have the right to such protection and care as is necessary
for their well-being. They may express their views freely. Such views
shall be taken into consideration on matters which concern them in
accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or
private institutions, the child's best interests must be a primary
consideration.
3. Every child shall have the right to maintain on a regular basis a personal
relationship and direct contact with both his or her parents, unless that
is contrary to his or her interests”.
54. We would welcome views on the principle and possible wording of children’s rights in
any UK Bill of Rights.
Environmental rights
55. Proponents argue that any UK Bill of Rights ought to contain environmental rights.
They argue that the increasing awareness of the risks associated with an
unsustainable environment, and the importance of environmental protection, support the
inclusion of such rights. They point to the many links between the protection of human
rights and the protection of the environment in international treaties and to the fact that
a number of countries, including South Africa, have afforded constitutional protection
to environmental rights.
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 61
56. Others, however, consider the range of existing statutory measures in respect of
environmental protection to be sufficient. They question, as with socio-economic
rights more generally, how such rights would be enforced given that issues of
environmental protection involve policy and resource questions about the allocation of
resources and political judgements that many consider should be for elected
legislators and not for courts to decide.
57. There are a number of ways in which environmental rights could feature in a UK Bill of
Rights. One possible precedent is Article 24 of the Constitution of the Republic of
South Africa 1996 which provides that:
“Everyone has the right
a. to an environment that is not harmful to their health or well-being; and
b. to have the environment protected, for the benefit of present and future
generations, through reasonable legislative and other measures that
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.”
58. We would welcome views on the principle and possible wording of environmental
rights in any UK Bill of Rights.
59. Against the background set out in the previous paragraphs we would welcome views
on the following questions.
Q6: Do you think any UK Bill of Rights should include additional rights and, if so,
which? Do you have views on the possible wording of such additional rights
as you believe should be included in any UK Bill of Rights?
Q7: What in your view would be the advantages, disadvantages or challenges of
the inclusion of such additional rights?
Balancing certain rights
60. Any UK Bill of Rights could also seek to guide the courts on how they should strike
the balance between qualified and competing Convention rights and freedoms which
are sometimes held to be in opposition to one another, the most frequently cited
example being the right to personal privacy under article 8 of the Convention and the
right to freedom of expression under article 10. For example, when private information
or defamatory allegations about an individual are published in the media, the courts
are required to strike a fair balance between them. Section 12 of the Human Rights
62 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Act provides some guidance to the courts on how to proceed in such circumstances.5
However, some believe that a UK Bill of Rights would enable Parliament to give
clearer guidance to the courts on this issue than is currently given by either the
Human Rights Act or by the European Court of Human Rights. Against that
background we would welcome views on the following question.
Q8: Should any UK Bill of Rights seek to give guidance to our courts on the
balance to be struck between qualified and competing Convention rights?
If so, in what way?
Definition of ‘public authority’
61. Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities in the
UK to act in a manner that would breach a person’s Convention rights. A UK Bill of
Rights might place an identical or similar duty on public authorities in respect of the
rights set out in that instrument. There might be scope, however, for a UK Bill of
Rights to contain different or clearer provision on what types of bodies are covered by
such a requirement.
62. Under the Human Rights Act 1998 the term ‘public authority’ includes Government
departments, local authorities, statutory bodies and courts as well as some private
bodies which exercise ‘public functions’ on behalf of the state (such as those
companies who run private prisons). It is ultimately up to the courts to decide whether
any particular body falls within this category. Following a House of Lords decision 6
that excluded from the scope of this duty private companies that provided residential
care under contracts with a local authority, the Government brought forward
legislation that clarified the scope of the Act in respect of certain care services.7
Despite this move, many feel that there needs to be greater certainty on the range of
bodies covered by such a duty, particularly as more public services are outsourced to
private bodies. Others question such a need and argue that the existing scope is
sufficiently flexible. Against that background, we would welcome views on the
following question:
Q9: Presuming any UK Bill of Rights contained a duty on public authorities similar
to that in section 6 of the Human Rights Act 1998, is there a need to amend the
definition of ‘public authority’? If so, how?
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 63
Responsibilities
63. It has been suggested by some, including a number of faith groups, that there should
be inclusion of, or at least reference to, the notion of responsibilities in any UK Bill of
Rights, and that its focus should not just be about rights. Those arguing for this
position note that concepts of duty and responsibility figure in many aspects of our
lives, such as our duty to obey the law and our responsibilities to our children. They
also note that notions of responsibilities figure in current and historic bills of rights in
some other countries, though these are generally in the form of aspirational or
declaratory provisions. They argue that, at least for certain rights, the extent of the
protection or compensation they provide should be determined at least in part by the
actions of the individual seeking the protection of the right.
64. Others point out however, that most rights under the Convention and the Human
Rights Act involve a concomitant responsibility to respect the rights of others. They
note that there are very few absolute rights and even the right to life allows for self
defence in appropriate circumstances or the sacrifice of life to preserve another in
certain circumstances. They assert that rights are necessarily interconnected and
require a daily balancing in many aspects of our lives. For example, a person’s right
to religious observance must include the same right for others, even if their beliefs are
anathema. And a person’s right to free speech must allow for another’s right, as a
black or a gay person for example, to live in safety. Further, they ask which duties
should be created or included and whether and how they would be made enforceable.
For example, in the case of parental responsibilities, there already exists in law a duty
of care on the shoulders of parents with regard to their children, but arguably this duty
could be too amorphous for a Bill of Rights. Similar questions could be posed
regarding a duty to vote, a duty to protect the environment for future generations or a
duty to protect the most vulnerable in our society. Or in the case of duties to obey the
law or pay taxes, one could argue that these are already taken as read.
65. Some who raise the issue of responsibilities wish to see human rights made
contingent upon good behaviour and feel for example that those who commit crimes
should have their bad conduct weighed in the balance against their human rights.
Others, however, argue strongly against any concept of responsibilities that would
qualify or link the scope of an individual’s human rights to his or her conduct or
demonstration of responsibilities. They believe that one of the foundations of
fundamental rights is that they are for all individuals, including those who are
suspected of committing or who have committed crimes. They believe that it is in the
nature of human rights that they exist for all human beings without reference to
whether they are ‘deserving’ or not and cannot be made contingent. They argue that a
Bill of Rights is intended to protect the individual against the misuse of public powers
and not to impose legal liability upon the individual in addition to the duties imposed
by criminal and civil law. To the extent that rights are qualified and require a fair
balance, they argue that the Convention and the Human Rights Act correctly focus
upon the rights of others and the wider public interest, and that Article 17 of the
64 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
European Convention on Human Rights excludes protection for conduct aimed at the
destruction of Convention rights.
66. A possible way of reconciling the desire to include some acknowledgement of the
importance of responsibilities with the principle that some rights are absolute might be
to emphasise the existing common law principle that public law remedies are
discretionary. This is the current practice in judicial review. Arguably, therefore, courts
could be encouraged when exercising this discretion to take into account the extent to
which an applicant has complied with their responsibilities.
67. Recognising the strength of these arguments some have argued that responsibilities
should figure in a declaratory way in any UK Bill of Rights; i.e. that they would not be
enforceable, serving to remind all members of society that they owe certain duties
and have certain responsibilities.
68. Responsibilities might be included in any Bill of Rights in a variety of ways, for each of
which a parallel can be found in the Constitutions or Charters of Rights of other
democratic countries:
(a) one or more responsibilities or obligations might be stated as "self­
standing" obligations or societal values, such as a duty to society, a duty to uphold democratic values, or a duty to respect the rights of others; (b) some self-standing obligations might have legal effect, such as an obligation on citizens to perform military or community service when called upon to do so, or an obligation to vote in elections. (c) the enjoyment of certain rights might be made conditional upon their
not being abused. For example, enjoyment of the right to freedom of
expression could be conditional upon that right not being abused to
attack the free democratic order; or
(d) without being conditional in that sense, rights might be made subject to
such exceptions as are necessary in a democratic society or protection
of the rights and freedoms of others (see the formulation already in
Articles 8, 9, 10 and 11 of the European Convention on Human
Rights).
69. Against that background we would welcome views on the following question.
Q10: Should there be a role for responsibilities in any UK Bill of Rights? If so, in which of the ways set out above might it be included? A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 65
The duty to take Strasbourg case law into account
70. One other provision of the Human Rights Act which has been the subject of recent
public discussion is section 2 of the Act which requires our courts to “take into
account” relevant judgments of the European Court of Human Rights when deciding
cases involving Convention rights. Some commentators have expressed concern that
this duty has been interpreted by the courts in a way that has caused them to apply
Strasbourg case law too rigidly, without sufficient consideration of our legal system.
Other commentators have said that even if this was the case in the past, our senior
domestic courts are increasingly departing from Strasbourg case law where they
consider this to be justified and appropriate.
71. It has been suggested by some in this context that any UK Bill of Rights could amend
the duty in section 2 of the Human Rights Act 1998 to provide different and/or clearer
direction to UK courts as to how to interpret and apply Strasbourg case law. For
example, some commentators have suggested an amendment to the effect that our
domestic courts “may” take into account Strasbourg case law, but should not do so if
there is a clear expression of views by Parliament on the relevant issue (whether by
statute or otherwise) or where the existing common law is clear.
72. Others have suggested that the section 2 duty should be expanded to direct courts to
take into account also relevant case law from other countries, in particular from other
common law countries. Proponents of this suggestion assert that this would mean
that the common law, as it has developed not just in the UK but elsewhere, would be
given a more substantial and rightful place in the adjudication of domestic cases.
Others, however, consider that such a change would be unnecessary as our courts
(like the European Court of Human Rights) already have regard to case law from
other international human rights courts and national courts. Against this background
we would welcome views on the following question.
Q11: Should the duty on courts to take relevant Strasbourg case law ‘into account’
be maintained or modified? If modified, how and with what aim?
Declaration of incompatibility
73. Under the Human Rights Act, if a court determines that a statute of the United
Kingdom Parliament cannot be read and given effect in a way that is compatible with
a Convention right, the court can issue a ‘declaration of incompatibility’.
Notwithstanding such a declaration however, the legislation remains valid and in force
and it is up to Parliament to decide whether and, if so, how the incompatibility should
be addressed. Unlike the position under the European Communities Acts and in many
other European and Commonwealth countries the courts cannot declare the statutes
66 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
of the UK Parliament invalid and unenforceable. The Human Rights Act therefore
leaves it ultimately to Parliament to decide whether to amend the law in question.
74. In the view of many commentators the Human Rights Act in this way strikes a
sensible balance between on the one hand the ultimate sovereignty of the UK
Parliament which is democratically accountable and represents the people, and, on
the other hand, the power and duty of the courts to declare and enforce the law and to
provide effective remedies in accordance with the will of Parliament.
75. Some, however, have argued that this balance should be altered by giving courts the
power to declare provisions of UK statutes invalid and unenforceable where it is found
that they cannot be read compatibly with Convention rights. Others argue that the
present position should be retained. Still others argue that the balance struck by the
Human Right Act is not the critical issue, because if Government and Parliament
choose to do nothing following a declaration of incompatibility, individuals can still
seek redress from the European Court of Human Rights for breach of their rights. If
the Court agrees, the Government and Parliament are then bound by Article 46 of the
Convention to comply with the Court’s judgment.
76. To those who regard the Convention system as a threat to the British doctrine of
Parliamentary sovereignty or supremacy, this is not satisfactory. They criticise the fact
that Parliamentary sovereignty is in their view undermined by the mechanism of a
declaration of incompatibility, since Parliament is effectively bound by the judgments
of the Strasbourg Court. Others counter that this is in the nature of the UK’s
obligations under the many international treaties which it has ratified in numerous
areas of policy-making and that the UK made the decisions in ratifying these treaties
that it wished to comply with the obligations found in them. Against this background
we would welcome views on the following question.
Q12: Should any UK Bill of Rights seek to change the balance currently set out
under the Human Rights Act between the courts and Parliament?
Northern Ireland, Scotland and Wales
77. It is clear from the responses to our earlier discussion paper and our visits to Northern
Ireland, Scotland and Wales that there are a range of views in different parts of the
UK on whether, and the extent to which, a UK Bill of Rights might be desirable and/or
possible in the light of the devolution settlements and the current political landscape in
Northern Ireland, Scotland and Wales.
78. Many in Northern Ireland, Scotland and Wales have in particular questioned the
viability, and legitimacy, of a UK Government-led initiative to enact a UK Bill of Rights,
particularly if it were undertaken to the exclusion of a Bill of Rights for Northern
Ireland, in parallel to the current debate on Scotland’s constitutional future and in the
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 67
wake of the recent increase in devolved powers in Wales. Many respondents in all
three countries argued that a UK Bill of Rights is not a live issue on the public agenda
except as a matter of English politics. These views were not, however, universally
held, with some in different parts of the UK, including individuals, elected
representatives and some non-Governmental organisations, saying either that a UK
Bill of Rights was necessary or desirable, or that it could have potential benefits
depending on its content.
79. Some respondents have questioned whether and how any UK Bill of Rights would
affect the devolution settlements in Northern Ireland, Scotland and Wales, whether
amendments to these settlements would be necessary, and whether the consent of
the devolved legislatures would be required to the introduction of a UK Bill of Rights.
While some saw these issues arising as a consequence of any attempt to introduce a
UK Bill of Rights others suggested that this would depend on the form and content of
such a Bill.
80. One possible model for a UK Bill of Rights in this context is a Bill that might sit
alongside the existing Human Rights Act and contain substantially similar provisions
and rights to those currently found in Schedule 1 to the Act. Under this model these
rights might apply UK wide but be exercisable in respect of reserved matters only.
Such an instrument might also include a separate chapter containing rights that
applied only to England, as well as a statement that acknowledged the competence of
the Northern Ireland Assembly, the Scottish Parliament and the National Assembly for
Wales to enact legislation conferring additional rights to meet the particular needs of
those countries. Any additional rights passed by the devolved legislatures would, by
virtue of the existing devolution statutes, relate to devolved matters only. In the view
of some such a model might simply reflect what already happens in practice in
respect of rights protection under the devolution statutes.8
81. Another possible model might be a UK Bill of Rights that contained additional rights in
respect of Northern Ireland, Scotland and Wales but which would not enter into force
in respect of those countries without the consent of the respective devolved
legislature.
82. Against that background, we would welcome views on the following questions and
proposals:
Q13: To what extent should current constitutional and political circumstances in
Northern Ireland, Scotland, Wales and/or the UK as a whole be a factor in
deciding whether (i) to maintain existing arrangements on the protection of
human rights in the UK, or (ii) to introduce a UK Bill of Rights in some form?
Q14: What are your views on the possible models outlined in paragraphs 80-81
above for a UK Bill of Rights?
68 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Q15: Do you have any other views on whether, and if so, how any UK Bill of Rights
should be formulated to take account of the position in Northern Ireland,
Scotland or Wales?
Other issues
83. As set out in the introduction to this consultation paper, the questions which it
contains do not repeat all of the questions which were posed in the Commission’s
earlier discussion paper. Nor does this consultation paper cover issues related to the
role and operation of the European Court of Human Rights, on which the Commission
has already provided advice to the Government, and the related issue of the effects of
international treaty obligations on Parliamentary sovereignty, an issue which was
discussed in some detail at one of the Commission’s seminars (see
http://www.justice.gov.uk/about/cbr).
84. Nevertheless the Commission does not wish in any way to discourage respondents
from giving us their views. You are welcome, therefore, to give us views on these
issues or any others which you believe to be relevant to our Terms of Reference.
We hope to hear from you soon.
We look forward to hearing your views on the questions posed in this consultation paper or
any other issues that you believe relevant to our Terms of Reference. We would like to
receive your views by 30 September 2012. Unless you specifically request otherwise, all
responses will be made public.
All responses should be sent to the inbox or address below:
[email protected]
Commission on a Bill of Rights
Postpoint 9.55
102 Petty France
London
SW1H 9AJ
Alternative formats
If you require this information in an alternative language, format or have general enquiries
about the Commission on a Bill of Rights, please contact us by email at
[email protected], telephone us at 020 3334 2486 or write to
us at:
Commission on a Bill of Rights
Postpoint 9.55
102 Petty France
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 69
London
SW1H 9AJ
Confidentiality
All written representations and evidence provided to the Commission will, unless publication
is unlawful, be made public unless specifically requested otherwise. If you would like any of
the information provided in your response to be treated confidentially, please indicate this
clearly in a covering note or e-mail (confidentiality language included in the body of any
submitted documents, or in standard form language on e-mails, is not sufficient), identifying
the relevant information and explaining why you regard the information you have provided as
confidential. Note that even where such requests are made, the Commission cannot
guarantee that confidentiality will be maintained in all circumstances, in particular if
disclosure should be required by law. If you have any particular concerns about
confidentiality that you would like to discuss, please contact the Commission at:
[email protected].
The Commission is not subject to the requirements of the Freedom of Information Act 2000.
However once the Commission has completed its work its papers are likely to be passed to
the Government. In these circumstances information formerly held by the Commission may
then be subject to the requirements of that legislation.
Members of the Commission are data controllers within the meaning of the Data Protection
Act 1998. Any personal data provided will be held and processed by the Commission and its
Secretariat only for the purposes of the Commission’s work, and in accordance with the Data
Protection Act 1998. Once the Commission has completed its work then any personal data
held is likely to be passed to the Government for the purpose of public record-keeping.
70 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
List of Questions in this Consultation Paper
Q1: What do you think would be the advantages or disadvantages of a UK Bill of
Rights? Do you think that there are alternatives to either our existing
arrangements or to a UK Bill of Rights that would achieve the same benefits? If
you think that there are disadvantages to a UK Bill of Rights, do you think that
the benefits outweigh them? Whether or not you favour a UK Bill of Rights, do
you think that the Human Rights Act ought to be retained or repealed?
Q2: In considering the arguments for and against a UK Bill of Rights, to what extent
do you believe that the European Convention on Human Rights should or
should not remain incorporated into our domestic law?
Q3: If there were to be a UK Bill of Rights, should it replace or sit alongside the
Human Rights Act 1998?
Q4: Should the rights and freedoms in any UK Bill of Rights be expressed in the
same or different language from that currently used in the Human Rights Act
and the European Convention on Human Rights? If different, in what ways
should the rights and freedoms be differently expressed?
Q5: What advantages or disadvantages do you think there would be, if any, if the
rights and freedoms in any UK Bill of Rights were expressed in different
language from that used in the European Convention on Human Rights and the
Human Rights Act 1998?
Q6: Do you think any UK Bill of Rights should include additional rights and, if so,
which? Do you have views on the possible wording of such additional rights as
you believe should be included in any UK Bill of Rights?
Q7: What in your view would be the advantages, disadvantages or challenges of the
inclusion of such additional rights?
Q8: Should any UK Bill of Rights seek to give guidance to our courts on the balance
to be struck between qualified and competing Convention rights? If so, in what
way?
Q9: Presuming any UK Bill of Rights contained a duty on public authorities similar to
that in section 6 of the Human Rights Act 1998, is there a need to amend the
definition of ‘public authority’? If so, how?
Q10: Should there be a role for responsibilities in any UK Bill of Rights? If so, in
which of the ways set out above might it be included?
Q11: Should the duty on courts to take relevant Strasbourg case law ‘into account’ be
maintained or modified? If modified, how and with what aim?
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 71
Q12: Should any UK Bill of Rights seek to change the balance currently set out under
the Human Rights Act between the courts and Parliament?
Q13: To what extent should current constitutional and political circumstances in
Northern Ireland, Scotland, Wales and/or the UK as a whole be a factor in
deciding whether (i) to maintain existing arrangements on the protection of
human rights in the UK, or (ii) to introduce a UK Bill of Rights in some form?
Q14: What are your views on the possible models outlined in paragraphs 80-81 above
for a UK Bill of Rights?
Q15: Do you have any other views on whether, and if so, how any UK Bill of Rights
should be formulated to take account of the position in Northern Ireland,
Scotland or Wales?
72 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Endnotes 1
2
3
4
5
6
7
8
The Members of the Commission are: Sir Leigh Lewis KCB (Chair), Professor Sir David
Edward QC, Lord Faulks QC, Jonathan Fisher QC, Martin Howe QC, Baroness
Kennedy of The Shaws QC, Lord Lester of Herne Hill QC, Philippe Sands QC and
Anthony Speaight QC. The Commission’s Terms of Reference are:
“...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, ensures that these
rights continue to be enshrined in UK law, and protects and extend our liberties.
To examine the operation and implementation of these obligations, and consider
ways to promote a better understanding of the true scope of these obligations and
liberties.
To provide advice to the Government on the ongoing Interlaken process to reform the
Strasbourg court ahead of and following the UK’s Chairmanship of the Council of
Europe.
To consult, including with the public, judiciary and devolved administrations and
legislatures, and aim to report no later than by the end of 2012.”
They could also raise Convention rights and case law in domestic cases, and these
were sometimes cited by courts in their decisions, but there was no ability to bring a direct claim and seek a remedy in a domestic court. The Human Rights Act 1998 prohibits discrimination as set out in Article 14 of the
Convention i.e. it only prohibits discrimination in the securing of the other rights and
freedoms set out in the Convention. The UN International Covenant on Civil and
Political Rights, by contrast, contains a free-standing right to equality but it has not been
incorporated into UK law. Protocol 12 to the European Convention on Human Rights
also contains a free-standing right to equality but this right but has not been ratified by
the UK and is not contained in the Human Rights Act. However, the Equalities Act 2010
contains detailed and specific protection for many forms of direct and indirect
discrimination.
There are a number of differences in the right to a trial by jury across England and
Wales, Northern Ireland and Scotland. For example, Scotland has a different system
than England and Wales for determining whether an accused will be tried before a jury.
Northern Ireland also has a particular statutory system, which includes, since the
abolition of ‘Diplock’ courts, provisions excluding trial by jury in certain cases involving
proscribed organisations (Justice and Security (NI) Act 2007). Further, in England and
Wales, section 44 of the Criminal Justice Act 2003 excludes the right to jury trial in
certain cases of risk of jury tampering.
Section 12 of the Human Rights Act directs courts to “have particular regard to” the
importance of the Convention right to freedom of expression, and in cases involving
journalistic, literary, or artistic material, to have particular regard to the extent to which
the material has or is about to become public, and the public interest in the material
being published, as well as any relevant privacy codes.
YL v Birmingham City Council and others [2007] UKHL 27.
Section 145 of the Health and Social Care Act 1998.
For example, the Scottish Parliament enacted the Scottish Commission for Human Rights Act 2006 and the National Assembly for Wales passed the Rights of Children and Young Persons (Wales) Measure 2011.
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 73
74 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Annex F List of Respondents to the Commission’s Discussion and Consultation Papers A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 75
List of respondents to the Commission’s Consultation Paper: A Second Consultation
Respondent organisations and bodies
Responses from groups of organisations:
 Christian Concern and The Christian Legal
Centre
 National Union of Students and Union of
Students in Ireland
Responses from single organisations and
bodies:
 Action in Hearing Loss
 Administrative Justice and Tribunal Council
 Age UK
 AIRE Centre
 All Party Parliamentary Group on Gypsies and
Travellers
 Amnesty International UK
 Analytic Art Limited
 Bar Council
 British Academy
 British Association of Social Workers
 British Institute of Human Rights (BIHR)
 British Irish Rights Watch
 Care Quality Commission
 Children in Scotland
 Children’s Commissioner
 Children’s Food Trust
 Children’s Law Centre
 Children’s Right Alliance for England
 Citizen’s Advice Bureau
 Civil Court Users Association
 Committee on Administration of Justice
 Community Law Partnership
 Community Organisations of South Tyrone
and Area Ltd
 Darbari Trust UK, The
 Discrimination Law Association
 Diverse Cymru
 Employment Law Association
 End Violence Against Women
 Equality and Diversity Forum
 Equality and Human Rights Commission
 Faculty of Advocates
 Family Law Society
 Garden Court Chambers
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Gender Identity Research and Education
Haldane Society of Socialist Lawyers, The
Hodge Jones and Allen LLP
Howard League for Penal Reform
Human Rights Consortium
Imkaan
Immigration Law Practitioners’ Association
Include Youth
Irish Congress of Trade Union – Northern
Ireland Committee
Irish Travellers Movement in Britain
Jigsaw
JUSTICE
Law Society of Scotland, The
Legal Committee of the District Bench
(Magistrates’ Courts)
Liberty
Macmillan Cancer Support
Menter
Mind
Minister of Justice for Northern Ireland, David
Ford M.L.A
National Aids Trust
National Federation of the Gypsy Liaison
Groups, The
National LGB&T Partnership
No Recourse to Public Funds Network
Northern Ireland Council for Ethnic Minorities
Northern Ireland Council for Integrated
Education
Northern Ireland Human Rights Commission
Northern Ireland Public Service Alliance
NSPCC
Older People’s Commissioner for Wales
Parliament for Wales Campaign
Parliamentary and Health Service
Ombudsman
Pembrokeshire People’s First
PHG Foundation
Pobal
René Cassin
Residential Landlord Association
Rights of the Child UK (ROCK)
Royal College of General Practitioners
76 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Royal National Institute of Blind People
SAMH
Save the Children
Scope
Scottish Court Service
Scottish Government - Roseanna Cunningham
MSP, Minister for Community Safety and
Legal Affairs
Scottish Human Rights Commission
Senators of the College of Justice
Sheffield Law Centre
Sinn Féin
Slough Refugee Support
Society of Editors
Sussex University – Centre for
Responsibilities, Rights and Law
Thompson Solicitors
Training for Women Network Ltd
UK Association of Gypsy Women
UK Independence Party (UKIP)
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UK People’s Health Movement
Ulster Human Rights Watch
UNICEF UK
UNISON
Unite Trade Union
University of Cambridge – Centre for Public
Law
University of Derby, School of Law and
Criminology and Amnesty International
University of East London – Human Rights
Law Model Team
Wales Observatory on Human Rights for
Children and Young People
Wessex Regionalist Party
Welsh Government
Wild Law UK
Wish
Women’s Resource Centre
WWF-UK
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Bindman QC, Sir Geoffrey
Birkby, Jane
Bishop, Ronald Barry
Bobbin, Rita
Boult, Ben
Broadhurst, Robert
Broadhurst, Stephen
Bunting, Dan
Burdett, David
Bush Malcolm
Cantwell, Rosemary
Carver, David
Chandler, Karen
Coleman, Tony
Cranmer, Frank
Crawford, Michael. H.
Curtis, G.
Davis, David
De Londras, Professor Fiona
De Rivaz, Richard
Dent, Simon
Devaney, M.J.
Doczi, Nic
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List of Individual Respondents
Responses from more than one person:
 Klug, Professor Francesca and Williams, Amy
Ruth  Edwards, Rev Aled and Lewis QC, Clive  Faris, Neil; Garrett, Brian; and McAteer, Ciaran  Wood KCMG, Sir Michael and Wilmshurst CMG, Elizabeth  Morris, David and Kathleen  Radlett, Susan and David Responses from individuals:
 Anderson, Andrew
 Anonymous 1
 Anonymous 2
 Anonymous 3
 Anonymous 4
 Anonymous 5
 Baister, Dr Stephen
 Baker, Dr Dennis
 Baynes, Tim
 Beesley CDR, Derek
 Beirne, Maggie
 Dove, Nicholas R.
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 77
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Duff MEP, Andrew
Dunsmore, David L.
Elphicke MP, Charlie
Farry, Richard
Fell, D
Fletcher, Peter
Garbutt, Andrew
Gaur, Navodaya
Gibbs, Roger
Griffin, Lee
Gwynne, Stephen
Halford, John
Hargreaves, Peter
Hart, Jean
Healy-Birt, Eleanor
Hemming MP, John
Hockman QC, Stephen
Hodge, Canon Michael
Hudson, John R
Isherwood, Kate
Johnson, Paul
Jones, Jonathan
Jones, Mike
Jull, Peter
King, Dr Jeff
Kirk, Ian
Kissane, John
Kitching, Brian
Lasenby, Sarah
Last, Lisa
Lewis, Jack
Lewis, Jonathan M (Immigration Judge)
Lewis, Professor C.G.
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Lindsay, Tony
Manning, Paul
Marsons, Lee
Marthews, Gregory
McKenzie, Neil,
Mead, Professor David
Montgomery, Sylvie
Morgan, Dr Austen
Nash, Paul
Nock, Robert
Norris, Michael
Palmer, Anne
Parker, Alan
Parkhouse, Richard
Peterson, Judy
Poulton, Rex
Riches, Brian
Robinson, Anthony
Ruckman, Neil
Sarah
Scarborough, A.N.
Sears, John B.
Shaw, Mike
Silver, Mervyn
Silvester, Fred
Smith, Ernest
Stuttaford, Maria
Taylor, John
Van Bueren, Professor Geraldine
Walinets, Stanley
Wall, Alec
Wheeler, Andy
Whitaker, Baroness Janet
Yates, Pol
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Aldridge, Kristi
Aleya, H.
Allan, Robert
Ambler, Kris
Amica, Christine
Amjad, Maryam
List of individuals who responded as part
of a postcard campaign organised by the
British Institute of Human Rights
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Abel, Simone
Adelson, Naomi
Afifi, Adam
Agustian, Hendra
Ahmed, Tawhida
Akehurst, Susanna
Andersen, Hilde
78 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Ariss, Amanda
Armsbury, Julia
Arrigoni, Brain
Ashcroft, Richard
Ashley, Annette
Ashraf, Sofia
Astbury, Brian
Avery-Scott, Coral
Ayech, Vicky
Ayling, Cliff
Bahr, Charlotte
Bailey, Alex
Baldwin, Ceri
Bardaran, Pouya
Barker, Diane
Barnard, Paul
Barnes, Joseph
Barnett, Lexi
Barr, Graham
Barry, H.J.
Barry, Haggas
Barstow, Nik
Barton Sasha
Barton, Shireen Talhouni
Bascon, Susi
Bateman, Christine
Beard, Robert
Beausire, Ted
Beers, Tom
Befu
Begum, Shaben
Bell, David
Bell, Louise
Bell, Wendy
Bellamy, Karen
Benjamin, Elizabeth
Bennett, James
Bennetts, Alan
Bentley, Radhe
Bevan, Scott
Billimoria, Soraya
Bindman, Geoffrey
Black, Holly
Blagbrough, Charlie
Bligh, Katharine
Church, Ali
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Blundell, Peter
Bond, Sam
Boora, Sukhcharn
Both, Craig
Botibol, David
Boulton, Simon
Bourne, Jennifer
Bowles, Penelope
Boyle, Colin
Brace, Chris
Brady, Jenna
Briggs, Eleanor
Bristow, James
Brokenshire, Tarin
Broome, Kelly
Browing, John
Brown, Gill -Traveller Law Reform* Project
Bruton, Lisa
Bryant, Susan
Buchanan, Billy
Bunting, A.
Burnham, Joanne
Burton-Bowen, Lucy
Bury, Paul
Butler, Frances
Butterworth, Jonathan
Byfield, M.
Cabanas, Vanda
Cade, Jasmine
Campbell-Cairns, Angie
Capel, Sarah
Cardy, Glyn
Caro, Sue
Carson, Calvin
Carter, Luke
Carter, Oliver
Catro, Ana
Chandar-Nair, Raskesh
Chandler, Karen
Chant, Holly
Chapman, Carol
Cheah, Jeanette
Chesshire, Lisette
Chihana, Tchiyiwe
Chrisie, Coleen
Christie, Gordon A.
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Clarke, Diana
Clarke, Ross
Clarke, Stephen
Clayton, Hannah
Clissett, Patsy
Cochrane, Afton
Cole, Stephanie
Collins, Aidan
Collins, Kara
Collins, Michael
Cooke, Frazer
Cooper, Hilary
Copson, Julia
Corcoran, Amy
Corcoran, Erin Sutherland
Cornejo, Jonathan
Cotgrave, James
Course, Hilary
Courtois, Elizabeth
Cowan, Alan
Cowell, Frederick
Cowell, Victoria
Cowland, Janet
Coxhead, Malcolm
Crawford, Abby
Crowther, Neil
Cummins, Ashley
Da Silva, Luis
Dangerfield, Alison
Dania, Khair
Daniel, Nick
Davies, David
Davies, Jason
Davies, Michelle
Davison, M.
Dawkins, Alistair
Daycock, Catherine
Debra
De Paula Dos Santos, Vicente
Deacon, Hannah
Delord, Bernie
Devaney, Sarah
Devilly, Anthony
Devlin, Nicholas
Dew, Chris
Gage, Charlotte
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Dindjer, Hsan
Doggett, Anthony
Doonan, Mary
Doran, Patty
Doyle, Alexandra
Duckworth, Stuart
Duff, Prof Mac
Duffin, Nicholas
Duffin, Sally
Duffy, Cubob
Dunford, Victoria
Dyer, Liz
Eaglesham, David
Earnshaw, Ryan
Edwards, Philip
Egan, Blaise F
Egerton, Bridget
Elliott, Dr Mark
Elliott, Leanne
Elliott, Mary-Lou
Elliott, Ula
Ellis, Brenda
Ellis, Karen
Elwood, Ann
Emmanuel, Sunday Taiwo
Emmett, Sarah
Ettles James
Evans, Pamela
Farrell-Deveau, Mike
Fearn, Melvyn
Feminist Revolution Network
Fench, Paul
Fenton, Wilma
Ferguson Dugald
Ferguson, Sheila
Ferreira, Solange
Finnegan, Gemma
Fitchie, Sharon
Flary, Reid
Forrest, Stephen
Foulger, Steve
Franklin, Kaliya
Fraser, Joanne
French, Miranda
Frisby, Andy
Fox, Zoe
80 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Gale, Rhianon
Gale, Sian
Garcia, Aaron
Gardner, Carl
Garner, Stephanie
Gashi, Mimoza
Gault, Katherine
Gavin, Michelle
Gentle, Emma
Gibbons, Aisha
Gibbons, Catherine
Gillespie, Robert
Girvin-Baker, Jennifer
Glenister, Justin
Glover, Tiffany
Goa, Fabien
Gordon Jane
Gordon, Deuchars
Gough, Wendy
Graham Smith
Graham Wood, Camilla
Green, Alexander
Greenwood, Anne
Gregg, Andy
Gretton, Cosima
Griffin, Nicholas
Griffins, Kerry
Grimes, Dee
Grubeck, Nikoluaus
Guerrero-Avila, Juan C.
Gundersrud, Hanne
Gupta, Kapil
Haggas, Stuart
Hall, Natalie
Hammond, John
Hampton, Joe
Hand, Meraud Ferguson
Hargrove, Paul
Harle, Catherine
Harley, Lowenna
Harley, Michael
Harris, Elizabeth
Harris, Marie
Harrison, Rae
Harty, Lowenna
Jorgensen, Katrine
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Hayes, Kate
Haywood-Grinnell, Simon
Hazelgrove, Jack
Head, Karen
Heath, Pauline
Higson, Coral
Hill, Gary
Hill, Jackie
Hill, Katherine
Hinksman, Lucy
Holley, Catherine
Holt, Anne
Hosali, Sanchita
Hosking, Philip R.
Hotchen, Rebecca
Howe, Courtenay
Howes, Laurie
Howes, Sophie
Huggas, Guelma
Hughes, Jonathan
Hunt, Matthew
Hurley, Marie
Hurley, Marcus
Hutchings, Danielle
Hutton, Emma
Hyde, Adrian
Hyde, Cern
Irwin, Anne-Marie
Jack, Deborah
Jack, Steve
Jackson, Daniel
James, Lisa
Jefferson, Alice
Jeffrey, Emily
Jenkins, Marge
Jessop, Robert
Jolly, Schona
Jones, Claire
Jones, Dennis
Jones, Franstine
Jones, Geraint
Jones, Heather
Jones, Huw D
Jones, Katie
Jordan, Christopher Brian
Jordan, Gail
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Kashiko, Alex
Kaye, Andrew
Kazantzis, Miranda
Kearon, Julie
Kemmy, Julie
Kench, Jan
Kenningham, Sarah
Keogh, Chris
Keogh, Hannah
Khalid, Ali
Khalil, Haleem
Khan, Shoaib M
Kidner, Chris
King, Jennifer
King, Joan
Kirk, Barbara
Kirk, Elinor
Kirkpartrick, Catriona
Kirkpatrick, Stewart
Kirton-Darling, Edward
Kloythanomsup, Jeff
Knight, Eric
Koppel, Dr Hano
Korel, Melek
Korula, A.R.
Koszerek, Pippa
Kurowski, Katrina
L
Laidlaw, Jaana
Lal Gogna, Jagdish
Lambert, Tom
Lane, Polly
Lang, Celia
Lang, Graham
Langdon, Mark
Langhorn, Louise
Langhorn, Stuart
Lapins, Sacha
Larby, Tasmin
Larminie, Elizabeth
Lawson-Frost, Sasha
Leicester, Alistair
Lennon-Wood, Jenny
Lev, Joseph
Levin, Jacquie
McCarthy, Nicola
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Lewis, Sian
Lewis, Alan
Lewis, Emma
Lewis, Gemma
Lieberman, Nicole
Lindsay, Steven
Linton, Suzannah
Lisa
Llewellyn, Mike
Lombardi, Andy
Long, Rev. Dr P.R.
Long, Suzanne
Longworth, Jackie
Lopes, Solange
Loveday
Lovell, Jacqui
Lumsdaine, David
Lumsdaine, Naomi
Lux
Lyon, Kath
Lyons, Donal
MacDonald, Tim
Macehiter, Neil
Macintyre, Jess
MacKinnon, Carla
Macleod, Colin
Malcolm, Nicole
Maloney, Ted
Manasse, Andrew
Mann, Sarah
Manton, Richard
Mardell, Jason
Marshall, Dr Jill
Martinez, Pedro
Mason, Chris
Mather, Tom
Matthews, A.
Matthews, Lynn and Maisha
Maunder-Ruck, Helen
Max
Maxwell-Cox, Kyle
May, Claire
Mayer, Henry
Mayer, Luiz Hemrique
McAdam, Andrew
McCaig, Chris
82 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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McConnell, Martin Sean
McDermott, Yvonne
McGhie, Fiona
McGlone, Ann
McGuire, Gerry
McKenna, Linda
McKeown, Christiane
McKeown, Peter
McLaughlin, Sian
McMaster, Charis
McMaster, Nalini
McSherry, Sarah
Mercedes
Mercer, Jonathan
Mercier, Guillaume
Meredith, Nathan
Merriman, Andrew
Merriman, Daniel
Mihangel, Anna
MilIett, Vince
Millard, Becca
Miller, Alison
Miller, Laura
Mills, Claudia
Mills, Stuart
Milne QC, Alexander
Milner, James
Mish ,Loraine
Mitchell, Elizabeth E
Mitchell, Phillip
Molloy, Fionna
Moloney, Darren
Monestier, Carterina
Mooney, Adam
Mooney, Stephanie
Morgan, Christine
Morgan, Karen
Morris, Jackie
Mottram, Robert
Mushtaq Farhan
Nekati, Phathekile
Newby, Leanne
Newton, Kate Marie
Nicholas, Leila
Nichols, Tim
Plajerova, Eva
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Nicol, Jillian
Nicol, Senga
Niyoti, H
Norton, Eric
Norton, Steve
Nunn, Sandra
Nurley, Marcus
Nuruzzaman, Mohammed
Nyatsanza, Kudakwashe
O’Connor, Jude
O’Donnell, Anne
O’Donovan, Jane
O’Neill, Christopher
O’Reilly, Kevin
Oakes Eamonn
Ofek, Yonatan
Olaiya, Ade
Orieso, Chanel
Ostrowski, Nicholas
Owen, Trevor
Paines, Rupert
Panas, Charlotte
Papworth, Charlotte
Parker, Laura
Parker, Lochlinn
Parker, Rosalyn
Pasha, Maryam
Pate, Deborah
Patel, Shereen
Patrick, John
Paule
Pavan
Payne, H R
Pearson, Dr Mark
Peecock, Simon
Pellett, David
Perez, Moises Pestana
Perry, Paul
Pershad, Pratima
Peter Outlaw
Peter, Sunday
Petford, John
Peto, Harry
Pettigrew, Judith
Pierrot, Eirwen
Pike, Dr Lindsey
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 83
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Poltock, Alison
Presson, Kitt
Priaulx, Michael
Priesley, Bill
Qwarnstrom, Andrea
Radcliffe, Sarah
Raeburn, Mark
Ramanan, Abi
Ramsden, Laura
Redman, Sarah
Redmond, Christine
Reece, Michelle
Reid, Bertrar
Rendell, Dr Margherita
Rendell, Stephen
Richards, Brian
Richards, Steven
Richardson, Lisa
Ridley. Simon
Roberts, Caroline
Roberts, Jo
Roberts, Nia
Roberts, Stephen
Robinson, Sam
Rodger, Alan
Rodgers, Lesley
Roe, Lynn
Rogers, Harry
Rothschild, Sylvia
Rook, Alex
Rooke, Kezia
Rosser, Gareth
Rotcaig, Celine
R.T.
Rugg, Chris
Ruscoe, Tim
Ryan Bestford
Sabiri, Adil
Siddiq
Saiz, Ignacio
Samphire, Stephanie
Sarai, Mrs
Sarhandi, Sarah
Saridar, Tahani
Schinas, Ceasar
Thacker, Rajeev
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Schmidt, Evelyne
Scouller, Charlie
Scriven, Jane
Senu, Oluwafemi
Sergeant, Robin
Series, Lucy
Shah, Deepa
Sharp, Anna
Shearer, Kirsten
Shew, Michael and Francesca
Simblet, Stephen
Simmons, Rob
Simpson, David
Singh Sarah, Louise
Skinner, Lee
Smith, Andy
Smith, Calvin
Smith, Mark
Smith, Sally
Snow, Tracey
Sonvico, Gianni
Sosseh, Christina
Speight, H.
Speyer, Elaine
Spira, Louise
Stables, Paul
Stephen
Stephens, Daniel
Stevens, J.J.
Stevenson, Claire
Stewart, Alasdair
Stinson, Hanne
Stonebanks, Lauren
Stratton, Tony
Sturtivant, Ed
Sulu, Omotolani
Sun, Mark
Susan Keyes
Sutherland, Sara
Talbot, Marc
Tandy, Jason
Tarrant, Megan
Tarvit, Jenny
Tate, Rhiannon
Taylor, S.
Ten Veen, Rianne C.
84 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Thomas, Alan
Thomas, Lorraine
Thomas, Sarah
Thompson, Alice
Thwaite, Anna
Tilan, Sheila
Tipple, Hannah
Todd, Claire
Tomlinson, Eleanor
Tomlinson, Jane
Tomlinson, Sue
Toonen, Don
Trivier, Elisabeth
Tyson, Clare
Underwood, Kay
Vasista, Veena
Vaughan, Dan
Veale, Chris
Vujasin, Jane
Wales, Dean
Walker, Elizabeth
Walker, Mhairi
Wall, Michelle
Wallwork, Ryan
Walters, Dawn
Wand, Daniel
Warburton, Karen
Ward, G
Warne, Adam
Warner, Ian
Warner, Jan
Watson, Martin
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Watts, Anne
Watts, Kevin
Weber, Rosa
Wells, Mrs
West, Maggie
West, Steve
Weston, James
Wetherall, Michael
Whiteley, Kit
Whitwell, Chris
Wildbore, Helen
Wilkinson, Stephen
Williams, David
Williams, Amy
Williams, Jack R
Williamson, Dr Cort
Williamson, James
Willis, Louise
Wilson, Jane
Wood Oliver
Woodward, Francesca
Woollen, William
Worby, Dorroch
Wright, Emily
Wright, Jane
Wright, Yvonne
Wrixon, Laura
Wyatta, Abigail
Yeo, Rebecca
Yeomans, Annie
Yorke, Emma
Young, Jane
Zorrinho, Andreia
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Alexander, Deidre
Alexander, Geraldine
Alger, Marie
Allen, Carl
Allen, Charlotte
Allen, Jonathan
List of individuals who responded as part
of a postcard campaign organised by the
Human Rights Consortium (Northern
Ireland)
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Abro, Hammad
Adams, Henry
Addis, Chris
Aiken Deborah,
Aiken, Bryony
Alexander James
Allison, Laura
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 85
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Amm, Bavechira
Anderson Caroline
Anderson, Andy
Anderson, Ashlyn
Anderson, Peter
Andrew, Gemma
Annette, J.C.
Armstrong, Derek
Armstrong, Kellie
Armstrong, Naomi
Armstrong, Sophie
Ashby, Shirley
Aspin, Natalie
Austin, Sharon
Autumn, Kitty
Bailey, Michael
Bailie, Kristopher
Bailey, Ursula
Baird, Vanessa
Bakerell, Niall
Ball, Claire
Bamerjee, Urbi
Banks, Caroline
Bannon, Kieran
Barfoot, Peter
Barnes, Snelbie
Barrett, Dan
Barrett, Karen
Bashford Christina
Basketfield, Neil
Baylie, Christopher
Beck, Robert
Begley, Richard
Beirne, Maggie
Belch, Gillian
Bell, Clare
Bell, James
Belshaw, Melissa
Berchlord, Eva
Best, Laura
Birel, Tom
Birkett, Stephen
Biscon, Andrew
Black, Gerard
Black, John
Burn, Deborah
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Blair, Julie
Blake, Glen
Blakely, Sonya
Blythin, Joshua
Bobb, Jane
Bodimon, Qisi
Bofire, Richard
Bond, C.
Bond, Victoria
Bonner, Matthew
Bono, Sergio
Bothwell, David
Boyce, Leya
Boyce, Paddy
Boyce, Sara
Boyd, David
Boyle, Sara-Lynne
Bradford, Michelle
Bradford, Toby
Bradley, Connor
Bradley, Fiachara
Bradley, Glenn
Bradley, John
Bradley, Patrick
Brady, Hugh
Brennan, Kirsty
Brennan, Stephen
Brian, Glen
Briggs, Claire
Broderick, Georgina
Brooker, Timothy
Brotto, Melisa
Brown, Eva
Brown, Fred
Brown, Kevin
Brown, Leone
Brown, Una
Browne, Nicola
Buchanan, Emma
Buchanan, Pauline
Buglass, Iain
Bunting, Deaglan
Bunting, Sara
Burke, Leona
Burke, Raymond
Burme, Dylan
86 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Burns, Brendan
Burns, Chelsey
Burns, Colin
Burns, Emma
Burns, Jennifer
Butler, Caroline
Butler, Elaine
Butler, Fiona
Butler, Gerald
Byle, Colette
Byrne Grainie
Byrne, Carol
Byrne, Eoghan
Byrne, Jo
Byrne, Roisin
Byrne, Shannan
Caddell, Maria
Caffrey, Mark
Cahoon, Louise
Cairns, Kaitlyn
Caleyron, Nathalie
Callaghan, Brenda
Cameron, Alex
Campbell, Claire
Campbell, Elaine
Campbell, Emma
Campbell, Emma
Campbell, Emma
Campbell, Jonathan
Campbell, Peter
Campbell, Philip
Campbell, Rebecca
Campbell, Stephanie
Campbell, Stuart
Campion, Darren
Campion, Kerry
Capson, Cathy
Captain, Elaine
Carberry, Amy
Carberry, Anne
Carberry, Anne
Carberry, Eamon
Carberry, Eve
Carberry, Gerry
Carberry, Gracie
Connallason, Shaun
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Carberry, Jessica
Carberry, Lauren
Carberry, Matthew
Carberry, Molly
Carberry, Ronan
Carberry, Sean
Carberry, Sinead
Carberry, Stacey
Carchrie, Campbell Michael
Carla-Ella
Carr, Brendan
Carroll, Gerry
Carter, Michael
Cartmill, Austin
Carton, Desman
Carton, Gabrielle
Carville, Arnold
Carville, Conor
Carville, Joseph
Casiely, Liam
Caskey, Caroline
Cassidy, Rhoda
Cavanagh, Chris
Chan, Karmeng
Chow, Natasha
Citus, Nami
Clarke, Emma
Clarke, Gemma
Clarke, Harry
Clarke, Karen
Clarke, Lincoln
Clarke, Natasha
Clarke, Stephen
Clayton, John
Cleland, Claire
Clenagham, Shea
Coates, Sarah
Colguhoun, Joshua
Collins, Amy
Collins, Mairead
Collins, Mairead
Colombo, Seán
Conbay, Patriicia
Conchatheir, Ciaran
Conlon, Nuda
Conlon, Sean Paul
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 87
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Connelly, Conor
Connolly, Ita
Connor, Naomi
Conor, Oliver
Conwell, Eileen
Cooney, Julie
Cooper, Kevin
Cooper, Stephen
Corbett, Orla
Corrigan, Patrick
Corrigan, Sarah
Corthy, Lynsey
Cousins, Rooney
Coyle, Louise
Craney, Eric
Crawford, Brian
Crawford, Brian
Crawford, Jonathan
Crawford, Lucy
Crawford, Rebecca
Cromar-Brooks, Scott
Crooks, Darren
Crook, Loraine
Crozier, Matthew
Cullen, Celine
Cullen, Damien
Cullen, Gareth
Cullen, Hollie
Cullen, Mark
Cullen, Michael
Cullen, Michael
Cullen, Theresa
Cullinane, Olivia
Curran, Barbara
Curran, Paul
Curran, Phil
Curran, Sharon
Curtis, Owen
Cusmeachin, Martine J
Daly, Helena
Dang, Andy
Davey, Emma
Davey, Jemma
Davies, Ciaran
Davis, Lorraine
Dorrachs, Kathryn
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Davis, Naomi
Dawson, Emily
Dehwar, Saad Ullah
Deiana, Maria
Delaney, Sarah
Delargy, Sarah
Derlin, Aimee
Deschatrettes, Nicolas
Devine, Claire
Devine, Leone
Devlin, Anthony
Devlin, Madonna
Dickson, Nicole
Diffin, Daniel
Diffley, Maria
Dillon, Jarrett
Dineen, Rebecca
Dodds, Heather
Doherty, Adam
Doherty, Clare
Doherty, Gary
Doherty, Hayley
Doherty, Joanne Mary
Doherty, Simon
Doherty, Sophie
Donaghy, Matthew
Donald, Kate
Donaldson, Rachelle
Donnan, Stephen
Donnelly, Ann
Donnelly, Ann
Donnelly, Conor
Donnelly, E.
Donnelly, Joseph
Donnelly, Laurence
Donnelly, Natalie
Donnelly, Roisin
Donnelly, Sarah
Donnelly, Sheila
Donnelly, Siobhan
Donnelly, D.
Doorley, Pamela
Doran, Raymond
Dorman, Danny
Dormar, Atoine
Dornan, Bill
88 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Dougan, Dearbhail
Douglas, Colin
Douglas, F S.
Douglas, Rabie
Douglas, Stephen
Downey, Declan
Dugan, Perry
Dunn, S.
Dunwoody, Karen
Dunyer, Martha
Dutton, Dan
Dwyer, Nick
Elliott, Lauren
Elliott, Nicole
Ellis, Holly
Ellison, James
Ethna Irvine,
Evans, Steven
Fahy, Eimear
Fallis, Stuart
Faria-Vare, Asha
Farinaite, Aoneta
Farrell, Joanne
Farris, Timothy
Faye, Una
Fearon, Judith
Fearon, Sean
Fegan, Jennifer
Fennell PhD, Geraldine
Ferguson, Lynn
Ferran, Catherine
Ferran, Sinead
Ferris, Colin
Ferris, Dermot
Finn, Moore
Finnegan, Sarah
Finnegan, Tomas
Fitzgerald, Eisplan
Fitzjimon Anna
Fitzsimons, Emma
Flankin, Leighane
Fleming, Sarah
Flett, Jolena
Flinn, Colin
Flletcher, Andrew
Glover, Suzanne
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Flynn Paul
Flynn, Eileen
Flynn, Helen
Flynn, Jenny
Flynn, Leanne
Flynn, Michael
Flynn, Paul
Flynn, Roger
Flynn, Rosie
Foster, Teddy
Fox, Pat
Fraser, M
French, Alison
Friel, Cath
Friel, Eunan
Friel, Mary
Fulton, K
Fulton, Sadie
Fuy, Jade
GB
Gallagher, Amie
Gallagher, Katie
Gallagher, Muirne
Gallen, Lorraine
Gallen, Marie
Galloway, Margaret
Garbutt, Georgina
Garcia, Paulino
Garland, Ryan
Gartlin, James
Gates, Emer
Gaughan, Daniel
Gault, Lauren
Geddis, Finn
Gentlemann, Doris
Geoghegan, Marion
Gerard, Sally
Ghansah, Ebenezer
Glasgow, Declan
Gibb, Andy
Gibnay, Rowan
Gibson, Diane
Gill, Craig
Gilmore, Aideen
Girvan, Davina
Glass, Aoife
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 89
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Gonsalves, John
Goodly, Matthew
Gordon, Alistair
Gordon, David
Gordon, Peter
Gorman, Eileen
Gorman, Tomás
Gormley, John
Gormley, Michelle
Gornely, Orla
Graham, Irene
Graham, James
Graham, Jonathan
Graham, Karlane
Graham, Keith
Graham, Kim
Graham, Stephen
Grant, Sarah
Gray, R.
Green, J.
Greenan, Sean
Greener-Simon, Kayleigh
Greenwood, Stephanie
Greer, Nora
Greer, Tracy
Greglegan, Sandra
Grehan, Gerry
Gribbin, John
Gribbin, Mary
Gribbon, D.
Grier, Tommy
Grimason, R.J.
Guiles, Valerie
Guinn, Robert
Haate, Dooley
Haggon, Ann
Hainsworth, Paul
Hall, Dan
Hall, Kim
Halliday, David
Hamilton, Josh
Hamilton, Joy
Hamilton, Mike
Hamilton, Paul
Hampton, Olivia
Horrow, Gay
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Hanill, Adrian
Hanley, Jane
Hannity, Bronagh
Hanratty, Kevin
Hanratty, Michael
Hanratty, Rachael
Hanson, Tom
Hardy, Ben
Harley, Linda
Harris, Ariya
Hartin, Paul
Harvey, Steve
Harvey, Steven
Hassan, Daniel
Haughey, Ryan
Haughley J.
Hawley, Claire
Hawthorne, Laura
Haydon, Laura
Healey, Andrew
Heaney, Claire
Hearst, Francis
Henderson, D.
Hennessy, Anne
Henriquez, Victor
Henry, K.
Henry, Kevin
Henry, Lesley-Ann
Herron, Deborah
Higgins, Laurie
Higgins, Louise
Hill, Caroline
Hill, Danni
Hill, Rowland
Hinds, Thom
Hodgins, Jennifer
Hoey, Kelly
Hoffman, D A
Hogarty, Andrea
Hogg, Chris
Hoggan, Rachel
Holding, V.
Holland, Grainne
Holland, V.
Holmes, Valerie
Keenan, G.
90 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Horte, Bryan
Houston, Stephen
Houston, Tony
Howard, Beryl
Howard, James
Howard, Roby
Howath, Victoria
Howse, Stephen
Hudson, Lynsey
Hughes, Breedsagh
Hughes, Eoin
Hughes, Katrina
Hughes, Kevin
Hughes, Neal
Hughes, Nicholas
Hughes, O.
Hussain, Lisa
Hussen, Serwan
Hutton, Dorothy
Hyndman, Mari
Jaho, Greg
Jallow, Rosetta,
Jamison, Fiona
Jampen, Virginia
Janagh, Peter
Jedten, Hilary
Jennings, Jillan
Johnson ,Catherine
Johnson, Terry
Johnston, Irene
Johnston, Lesley
Johnston, Noeline
Johnston, Seamen
Johnston, William
Johnston, Sean
Jolliffe, Lucy
Jones, B.
Jones, Graham
Jones, Tanya
Jopat, Sandesh
Kalke, Sabine
Kane, Bobby
Kannawary, Ellen Rose
Karan, Else
Kaur, J.
Lee, Gareth
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Kavanagh, Patricia
Keegan, Amy
Keeran, Molly
Kelly MBE, Mark
Kelly, Allan
Kelly, Amy
Kelly, Bernie
Kelly, Conor
Kelly, Donal
Kelly, Geraldine
Kelly, Paddy
Kelly, Samantha
Kelly, Sheila
Kennedy, S.
Kerr, Peter
Kerr, R.
Kettyles, Davy
Khan, Hammad
Khattak, David
Kienan, Paula
Kieran, Dorragh
Killy, Rebecca
King, Johanna
King, William
Kinnear, Lauren
Kinney, Jessica
Kirby, David
Klisa, Alex
Knox, James
Kohanoff, Anna
Kolbohm, Cara
Kolbohm, Luke
Kolbohm, Madonna
Kontorravdis, Elli
Kristiansen, Mikali
Kunjumon, Ivochen
Kunjumon, Job
Kunjumon, John
Kunjumon, Lal A.
Lambkin, Angus
Lappin, Brendan
Larkin, James
Larmour, William James
Law, Joe
Leatham, Paula
Leckey, Alison
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 91
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Lewsley, Joe
Liddy, Catherine
Liddy, Conor
Liddy, James
Liddy, Morgan
Liddy, Orla
Liddy, Sinead
Lings, Alastair
Linton, Judy
Lloyd, Kiern
Lodwick, Penny
Logan, Amy
Logan, Carahan
Loughran, Tomas,
Loughrey, Stephen
Lowe, Johnny
Lowry, John
Ludlow, Maria
Lui, Row Yee
Lundy, Grace
Lutton, Rebecca
Lydon, Darragh
Lydon, Myra
Lyle, Timmy
Lyle-Toal, Trevor
Lynch, Catherine
Lynch, Ciara
Lynch, Hannah
Lynch, Jayne
Lynch, Katrina
Lynch, Martin
Lynch, Paul
Lynch, Seamus
Lynoh, L.
Lyons, Donal
MacKay, Terry
MacFlynn, Paul
MacGolla, Greigoir
MacIntyre, D
MacIntyre, Orla
Mackel, Paddy
Mackel, Paddy
Mackenzie, Gerald
MacKenzie, Pam
Mackie, Liam
Mazumder, Sakhawat
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Macky, Colum
MacPhillips, Caroline
Maeve, Nugent
Maffini, Stefano
Magee, Brian
MaGee, Dionne
MaGee, Kerianne
Magee, Laura
Magee, Shannon
Maguire, Aodhon
Maguire, Christopher
Maguire, Conor
Maguire, Daniel
Maguire, Kevin
Maguire, Michael
Maguire, Miread
Maguire, Gerry
Mahaffy, Joanne
Mahaffy, Lia
Mahaffy, Matthew
Mahaffy, Thomas
Maher, Greg
Mairie, Paula
Malgaonkar, Bhushan
Mallon, Chris
Mallon, Patrick
Malorrian, Philip
Mangan, Laura
Marley, Ann
Marley, Claire
Marlow, Matthew
Marquess, Cathy
Marshall, Chelsea
Martin, Ciara
Martin, Clare
Martin, Phil
Martin, Rebecca
Martin, Steven
Martland, Kyle
Massey, Ciaran
Matarire, Diarmuid
Matthews, Heather
Maveily, David
May, Robert
Mayne, Tom
Mayor, Jay
92 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Mc Mahon, Ryan
Mc Menamin, Charlie
McAdam, Rachel
McAleeran, P T.
McAliskey, Brendan
McAnaller, Mary
McAnenly, Jimmy
McAnenly, Susan
McAnenly, Zach
McAteer, Alice
McAteer, Dan
McAteer, Marie
McAuley, Sarah
McBeigh, Anna
McBeth, Aoife
McBhranar, Cliodhne
McBien, Declan
McBride, Finton
McBride, Maggie
McBride, Rebecca
McBride, Ruari-Santiago
McCabe Roz
McCabe, Andrew
McCabe, Anton
McCabe, Ciaran
McCabe, Megan
McCabe, Rebekah
McCafferty, Imelda
McCafferty, Jim
McCafferty, Mairead
McCahe, Kevin
McCallary, Wendy
McCallon, Nicola
McCallum, Caoimhe
McCann, Aidan
McCann, David
McCann, M.
McCardy, Mair
McCarron, Shane
McCharlton, James
McChrystal, Daniel
McClaskey, Paul
McClaskey, Peter
McClean, Gareth
McCleary, Jenny
McFall, Connor
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McCleary, Maura
McClelland, Jamie
McKenna, Mary
McKenna, Sean,
McClelland, Natasha
McClelland, Robin
McCloud, Sheena
McClure, David
McColgan, Sarah
McComb, John
McCormick, Neil
McComb, Laura
McCondille, Doreen
McConnell, C.
McConnell, Niamn
McConville, Kieran
McCoppin, Kevin
McCormick, John
McCourt, Fiona
McCrea, Berni
McCready, D.
McCready, Paula
McCrisken, Rachael
McCrudden, Lyn
McCullagh, Donna
McCulloch, Aaron
McCurry, Jennifer
McCurry, Jennifer
McCusker, Deirdre
McDermott, Brian
McDonagh, Dean
McDonald, Neil
McDonald, Susan
McDonnell, Aidan
McDonnell, Claire
McDowell, Aidan
McElhohn, Edel
McElmery, Callie
McEochagath, Sinclair
McEven, Susan
McEvog, Niamh
Mcevoy, Barbara
McEwen, Jonny
McFadden, Aime
McFadden, Bernie
McFadden, Ryan
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 93
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McFarl Stephenie
McFarland, Annmarie
McGann, Amery
McGarry, Rosin
McGee, Matt
McGee, Patrick
McGettigan, Shauna
McGivon, Clare
McGourby, Liam
McGovern, Adrian
McGowan, Patrick
McGranaghan, Guibhin
McGrenaghan, Aoife
McGuchian, Nuala
McGuchian, Rioghnach
McGuckian, Concobhar
McGuckian, Vincent
McGuckin, Sarah
McGuckion, Aoife
McGuiness, Gavin
McGuiness, Gav
McGuiness, Glenn
McGuiness, Sorcha
McGuiness, William
McGuire, Aaron
McGurk, Amanda
McHere, Ann
Mcherrn, Catriona
McIvor, Conor
McKane, Damien
McKay, Deirbhile
McKeagnan, Kathy
McKearney, Maureen
McKeating, Michelle
McKee, Anthony
McKee, Felicity
McKee, Sally
McKeefsy, Pearce
McKeegan, John
McKeever, Darren
McKeever, John
McKeever, Lucia
McKenna, J.
Mckenna, Mary
McKenna, Matre
McQuoid, Meadhloh
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McKenna, Maura
McKenna, Sean
McKeown, Marieanne
McKeown, Michael
McKeown, Michael
McKernan, David
McKibbin, Martin
McKieran, Patrick
McKinney, Owen
McKinney, Ryan
McKinnon, Martin
McKnight, Katy
McLafferty, Conor
McClatchy, Barrie
McLaughlin, Conrad
McLaughlin, Deborah
McLaughlin, Jean
McLaughlin, John
McLaughlin, Patrick
McLeay, Stephen
McLersh, Ciara
McLister, Paula
McLory, Stephanie
McMahon, Deirdre
McMahon, Niamh
McMillan, Antoinette
McMillan, Paul
McMullan, B.
McMullan, Tony
McMullun, Yasmin
McNally, Natalie
McNamara, Kevin
McNaughton, C.
McNee, Tayra
McNeil, Colin
McNeiss, Shauneen
McNern, Jennifer
McNicholl, Louise
Mcnulty, Andrea
McPhillips, Marcus
McPoland, Emma
McQuade, Natasha
McQuoid, Aine
McQuoid, Aisling
McQuoid, Mairead
McQuoid, Margaret
94 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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McQuoid, Nathan
McQuoid, Oisin
McQuoid, Pearl
McReynolds, Aine
McReynolds, Justin
McUitty-O’Haran, Helen
McVeigh, Dympna
McVeigh, Hannah
McVey, John
McWilliams, Patrick
McWilliams, Patrick
Mearns, Tracy
Meelan, Angela
Meheffy, Debbie
Melby, Eoin
Michael Reynolds
Michael, John
Midgley, Hilary
Mikelly, Matthew
Millar, Alison
Millar, Eileen
Millar, Mark
Millar, Melissa
Millar, Michelle
Millar, Michelle
Miller, Ashley
Mills, Emma
Mitchell, Ian
Mitchell, Leanne
Mitchell, Ruth
Mnjoo, Coumilah
Molloy, Eddie
Monaghan, Keran
Montgomery, Isabelle
Montgomery, Mark
Mooney, Dominic
Mooney, Nicola
Mooney, Paddy
Mooney, Rachel
Moore, Aisling
Moore, Cake
Moore, Carole
Moore, Clark
Moore, Karl
Moore, Kathleen
Noel, Jamie
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Moore, Kelly
Moore, Michael
Morgan, Ceardha
Morgan, David
Morrisey, Mary
Morrison, Hannah
Morrison, Laura
Muinzer, Thomas
Muldoon, Bernie
Mulford, Amy
Mulholland, Tania
Mullan, Barbara
Mullan, David
Mullan, Matthew
Mullen, Bob
Muller, Janet
Murchan, Roisin
Murphy, Victor
Murphy, C.
Murphy, Courtney
Murphy, Danielle
Murphy, Deborah
Murphy, Francis
Murphy, Joanne
Murphy, Julie
Murphy, Kathy
Murphy, P.
Murphy, Paul
Murphy, Roisin
Murphy, Sean
Murphy, Tom
Murray, Colette
Murray, Ellen
Murray, L.
Murray, Michael
Murray, Nicola
Murray, Rosaleen
Nadu, Tamil
Naidu, Rajan
Neil, R.
Neill, Jamie
Neill, Maurie
Nelis, Cathy
Newry, Martin Gray
Nic, Claire
Noble, Kylie
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 95
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Nolan, Ciaran
Nugnez, Nile
Nutt, Helen
O’Connor, Nicole
O Donnell, Catherine
O'Donnell, Kevin
O'Donnell, Martina
O’Donnell, E.
O’Hagan, Lucy
O’Hanlon, Shauna
O’Hare, Brian
O’Hogan, Helen
O’Hogan, I.
O’Hogan, Kate
O’Hogan, Thomas
O’Mahoney, James
O’Marlain, Ciaran
O’Marlon, Ruairi
O’Neill, Brian
O’Neill, Ernest
O’Neill, Paul
O’Neill, Philip
O’Reilly, A.
O’Reilly, Aoife
O’Reilly, Brendon
Ogh, Ryan
O'Hanlon, Thomas
O'Hare, Maire
O'Neill, Nuala
O'Neill, Sean
O'Neill, Strabane Aaron
O'Prey, Martin
O'Regan Sean
O'Reilly, Catherine
O'Rourke, Dearbhla
Orr, Thomson
Orwin, Keith
Owen, Ciaran
Palka, D.
Parke, Aaron
Parke, C.
Parke, Natalie
Parker, Megan
Patience, Eileen
Patterson, Emma
Reaney, Cara
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Patton, Ian
Paxton, Francesca
Pentney, Zarie
Perry, Alee
Philpot, Alex
Philpott, Jen
Pierson, Claire
Pile, Arron
Pobloth, Michael
Polland, Anne
Pollock, Jackie
Pollock, John
Popalt, Virginia
Popoff, Alex
Porter, Anthony
Poturyahya, Tara
Price, Christina
Prior, Pierce
Purdie, Angie
Q, Paige
Quaid, Paddy N.
Quarney, Geraldine
Quienny, Nuala
Quigg, Danny
Quinlivan, Una
Quinn, Catherine
Quinn, Connor
Quinn, Edel
Quinn, Emma
Quinn, Frances
Quinn, Holly
Quinn, I.
Quinn, Joseph
Quinn, Lorcan
Quinn, M.
Quinn, Marie
Quinn, Opla
Quinn, Orla
Quinn, Paddy
Quinn, Una
Raddy, S.
Rafferty, Helen
Rafferty, Oohron
Raleigh, Aoife
Ramsey, Anne
Rankin, Fiona
96 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Reid, Jacquie
Reilly, Mikaela
Reilly, Olga Baunbæk
Riby, Evelyn
Rice, Emma
Rice, Fiona
Rice, Glenn
Rice, Jonathan
Richard, Clarke
Ridgley, Conor
Ritchie, Shona
Roarty, Hugh
Robb, N.
Roberts, Laura
Robinson, Christina
Robinson, Gerry
Robinson, Ryan
Rodgers, Cathal
Rodgers, Paula
Rodgers, Timothy
Rodriguez, Harold
Roferty, Dan
Rogers, Elizabeth
Rogers, Patrick
Roomery, Amy
Rooney, Colleen
Rooney, Jemma
Rooney, John
Rooney, Lucia
Rooney, Paul
Rosborough, Glenn
Rosoul, Iram
Ross, Stephanie
Rowan, Niamh
Rowe, Molly
Rowland, Jasmine
Ruck, Paul
Ruddy, Jenny
Rush, Aaron
Ryan Morgan
Ryan, Connor
Salmon, Dean
Salt, Lesley-Ann
Samson, Joanne
Sandford, Conor
Stewart, Rebecca
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Sanlery, David
Santini, Virginia
Santo, James
Savage, Deirdre
Sayers, Naomi
Scally, Mary
Schito, Tony
Scobie, Graham
Scott, Adam
Scott, Lynn
Scullion, Maria
Segly, Tina
Selfridge, Samantha
Sheac, Aneni
Sheeran, Claire
Sheil, Derek
Sheldon, Rebecca
Shields, Valerie
Shilliday, Mark
Simmons, Sonya
Sims, Andy
Sinnamon, Alison
Sloan, Catherine
Sloan, Michael
Smith, Amy
Smith, Daniel
Smith, Philip
Smith, Simeon
Smith, Stephen
Smyth, Amanda
Smyth, Claire
Smyth, Edel
Snowney, Rebecca
Solaz, Maria
Spedding, Gary
Spence, Kerry
Spence, Pauline
Spratt, Adam Michael
St John, Jilly
Stafford, Lisa
Starkey, Craig
Steele, Kristian
Stevenson, Kathyrn
Stewart, Eoin
Stewart, Jones
Stewart, O.
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Stewart, Sarah
Strain, Kerry
Stranney, Aoife
Sullivan, Lynda
Summerville, Cathy
Swallow, Jonathan
Sweeney, Noreen
Taylor, Jonathan
Taylor, Julie
Taylor, Sophie
Teapot, Hannah
Teeling, Emy
Teggart, Anne
Teggart, Grainne
Teggart, Jim
Teggart, Patrick
Telford, Matthew
Termini, Amy
Thomas, Tina
Thompson, Brian
Thompson, Frances
Thompson, Geraldine
Thompson, Glenn
Thompson, J.
Thompson, R.
Thompson, Thomas
Tilson, Paul
Toccur, Nicola
Todd, Diane
Toller, Gerald
Tombill, Robert
Toner, D.
Topp, Heiko
Towey, Michelle
Townsley, Lucinda
Tracey, Caoimhe
Trainor, Taryn
Trainor, Turlaugh
Traynor, Seanin
Traynor, Thomas
Treavere, N.
Trevor, Philip
Trimble, Joanne
Trimble, Marjorie
Tuck, Daniel
Wilson, Danielle
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Tunney, Aine
Turner, Catherine
Turner, Colleen
Turner, Colleen
Turner, Patrick
Tweed, Derek
Ungureaunu, Andra
Vaughan, John
Wade, Sammy
Waldron, Daniel
Walker, Jonathan
Walker, Lynda and Ernest
Walker, Tori
Wallace, Emma
Wallace, Rachel
Wallace, Rachel
Walls, Clare
War, Andrea
Ward, Clare
Ward, Sinead
Ward, Trisha
Warnock, Peter
Wass, Michael
Watson, Anne
Watts, Paul
Webb, Geraldine and Victor
Webb, Rowan
Webb, Simon
Weston, Dale
White, Bill
White, Bobby
White, Kieran
White, Georgina
White, Rod
Whitehouse, Sharon
Whittaker, Sharon
Whittle, Paul
Whittley, Rosemary
Wilkson, Mark
Williams, Reanne
Williams, Richard
Williamson, James
Wilson, Jan
Wilson, Andrew
Wilson, Angela
Wilson, Ben
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Wilson, Gordon
Wilson, Niamh
Wilson, Patricia
Winetsell, Evan
Wright, Karen
Wright, Owen
Wynn, Sonia
Yahyaoui, Aisha
Yiasouma, Kowlla
Young, Alannah
Young, John
Young, John Richard
Young, Susan
Zaranitt, Elizabeth
Zokaityte, Gintare
The Commission received a further 18 postcard
responses from individuals whose identities we
were unable to decipher.
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 99
List of respondents to the Discussion Paper
‘Do we need a UK Bill of Rights?’ (August 2011)
List of respondent organisations and
bodies
Responses from groups of organisations:
 Response from:
o Age UK (Derby and Derbyshire);
o Amnesty International (Derby and Derbyshire
local groups);
o British Institute of Human Rights (national);
o Paragon Law;
o University of Derby (Law School and Multifaith Centre); and o Derby and Derbyshire Race Equality
Commission
 Response from:
o AIRE Centre, The;
o Amnesty International;
o European Human Rights Advocacy Centre;
o Human Rights Watch;
o INTERIGHTS;
o International Commission of Jurists;
o JUSTICE; and
o Open Society Justice Initiative
 Response from:
o Christian Concern; and
o Christian Legal Centre
 Response from:
o Family Planning Association; and
o Brook
Responses from single organisations and
bodies:
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A Dignified Revolution
Action on Hearing Loss
Active Independence
AdEd Knowledge Company LLP
Age Cymru
Age UK
Almshouse Residents Action Group, The
Amnesty International UK
Black Disabled People's Association
Bristol Refugee Rights
British Association of Social Workers
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British Humanist Association
British Institute of Human Rights
British Irish Rights Watch
British Refugee Council
British Standards Institution
Campaign Against Censorship
Celtic Knot
Children and Families Across Borders
Children in Scotland
Children's Commissioner for England
Children's Commissioner for Wales
Church of England, Mission and Public Affairs
Council
Citizens Advice
Civil Court Users’ Association
Committee on the Administration of Justice
Constitution Society, The
Criminal Bar Association
Darlington Association on Disability
Disability Charities Consortium
District Bench (Magistrates’ Courts)
Diverse Cymru
East Midlands Regional Equality and Diversity
Partnership
Eaves
Elcena Jeffers Foundation
Equal Rights Trust
Equality and Diversity Forum
Equality and Human Rights Commission
Equality Commission for Northern Ireland
Equality South West
Faculty of Advocates
False Allegations Support Organisation (UK)
Family Law Society
Family Rights Group
Federation of Muslim Organisations
Fortnight Educational Trust
Forum for Stable Currencies
Freedom from Torture
Her Majesty’s Inspectorate of Prisons
Homeless Link
Human Rights Consortium, Northern Ireland
100 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Human Rights Consortium Scotland
Human Rights Lawyers’ Association
Imkaan
Immigration Law Practitioners’ Association
Independent Academic Research Studies
Information Commissioner’s Office
Irish Congress of Trade Unions
Joint Council for the Welfare of Immigrants
Judicial Executive Board of England and Wales
Just Fair
JUST West Yorkshire
JUSTICE
Kindness in Mind
Law Centres Federation
Law Society of Scotland
Law Society of England and Wales, The
Lesbian and Gay Christian Movement
Lesbian and Gay Foundation, The
Liberal Democrat Home Affairs, Justice and
Equalities Parliamentary Policy Committee
Liberty
London Metropolitan University Human Rights
and Social Justice Research Institute
London School of Economics Human Rights
Futures Project
Macmillan Cancer Support
Manchester NO2ID
Market Research Society
McEvedys Solicitors and Attorneys
Mencap
MENTER
Migrant Rights Centre, Bristol
Migrants’ Rights Network
Migration Watch
Mind
Minister of Justice, David Ford M.L.A., Northern
Ireland Executive
National Aids Trust
National Assembly for Wales: Constitutional &
Legislative Affairs Committee
National Council of Women of Great Britain,
The
National Lesbian Gay Bisexual and
Transgender Partnership
National Secular Society
National Society for the Prevention of Cruelty to
Children
National Union of Students
 NHS Wales Centre for Equality and Human
Rights
 No Recourse to Public Funds Network
 Northern Ireland Association for the Care and
Resettlement of Offenders
 Northern Ireland Council for Ethnic Minorities
 Northern Ireland Human Rights Commission
 Northern Ireland Public Service Alliance
 Northern Refugee Centre
 Northumbria University School of Law (student
response)
 Paragon Law
 Parliamentary and Health Service Ombudsman
 Participation and the Practice of Rights Project
 Pirate Party UK
 POhWER
 Prison Reform Trust
 Publishers' Association, The
 Quaker Peace and Social Witness, Crime,
Community and Justice Group
 Reformed Churches Caucus of the Lesbian
and Gay Christian Movement
 René Cassin
 Rights of the Child UK
 Rights of Women
 Royal Association for Disability Rights
 Royal College of Nursing
 Royal College of Psychiatrists
 Royal National Institute of Blind People
 Saffron Neighbourhood Council
 Save the Children
 Scottish Association for Mental Health
 Scottish Government
 Scottish Human Rights Commission
 Scottish Independent Advocacy Alliance
 Scottish Parliament: Justice Committee
 Scottish Women's Aid
 Senators of the College of Justice, Scotland
 Sheffield Law Centre
 Society of Conservative Lawyers
 Society of Editors
 Solicitors’ International Human Rights Group
 Spectrum Derbyshire
 Stonewall
 Sussex Law School, Centre for
Responsibilities, Rights and the Law
 Sussex Police
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 101
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Trades Union Congress
TravellerSpace
UK Association of Women Judges
Ulster Human Rights Watch UNICEF UK
UNISON Knowsley Branch
UNISON Northern Ireland
United Kingdom Independence Party
United Nations High Commissioner for
Refugees
University College London, Institute for Human
Rights
University of Cambridge Centre for Public Law
University of Oxford, Pro Bono Publico
Unlock Democracy
Wales Monitoring Group on the UN Convention
on the Rights of the Child
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Welsh Centre for International Affairs
Welsh Refugee Council
Welsh Women’s Aid
Wilberforce Society
Wild Law UK
WomenCentre, Kirklees
Women's Resource Centre
World Wildlife Fund UK
Radlett, David and Radlett, Susan
Roberts, Paul and Roberts, Jeanette
Smales, Colin and Pat
Tucker, Andrew and Liz
Watson, Richard and Watson, Anne
Wood, Sarah and Wood, Janet
Zetter, Roger and Zetter, Elizabeth
List of individual respondents
Responses from more than one person:
 Response from:
o Dr Elizabeth Ashford
o Dr Andrea Baumeister
o Dr Rowan Cruft
o Professor Anthony Duff
o Dr Simon Hope; and
o Dr Ben Saunders
 Response from:
o Adam Benmakhlouf
o Catriona Ferguson
o Euan Fraser
o Amy Hogarth
o Eilidh McAlister
 Ashley, Raymond and Ashley, Megan
 Clifton, Brian and Clifton, Tricia
 Cole, Roger and Cole, Lucy
 Grayson, John and Horton, Marion
 Hilken, Richard and Hilken, Sylvia
 Liles, David and Liles, Ellen
 ‘Mark and Adrian’
 Mitchell, Graham and Mitchell, Stella
 Morris,Gary and Wang Lucas
Responses from individuals:
 Acton, Karl
 Adcock, Alison
 Agostini, Giulio
 Aitken, Ross
 Aldridge, Chris
 Alexander, Roger
 Ali, Naheen
 Allen, R.P.
 Allen Q.C., Robin
 Allen, Tessa
 Alston, Dr Winston C. H.
 Amesbury, Brendan
 Amos, Merris
 An, Philip
 Anderson, Edward
 Anderson, Steven
 Anonymous A
 Anonymous B
 Anonymous C
 Anonymous D
 Anonymous E
 Anonymous F
 Anonymous G
 Anonymous H
 Anonymous I
 Anonymous J
 Anonymous K
102 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Anonymous L
Anonymous M
Anonymous N
Anonymous O
Anstey, Ben
'AQ'
Arnheim, Dr Michael
Arno, Thomas
Arnold, Peter
Ashmore, Stephen
Ashton, Jack
Aslam, Wasim
Austin, David William
Baister, Master Stephen
Baker, Dr Dennis
Baker, Stephen
Banton, Michael
Bargent, Daniel
Barker, Greg
Barley, Dr Simon
Barnes, Graham
Barnes, Vartouhie
Barney, John M.
Barraclough, Liz
Barrow, Paul
Basing, Steven
Baxter, Trevor
Baynes, Tim
Beard, Dave
Bearfield, Colin
Beirne, Maggie
Bell, Gary
Bell, Michael
Bell, Tomos
Bellamy, R.
Bellamy, R. J.
Belton, John
Bender, David
Bennett, Helen
Bennett, Judith
Bennetts, Tyler
Bergin, Allen
Bernal, Paul
Bettes, D.C.
Bickford, Bob
Biggin, Ben
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Bingham J.P., Graham
Birch, Chris
Birrell, Iain
Bisatt, Philip
Bishop, B
Bishop, Clive
Black, Peter
Blackburn, Professor Robert
Blackman, Noelle
Blackwell, Paul
Blakeley, Eric
Blissett, Bill
Blissett, Lesley
Bloxham, Peter
Booth, Dr Paul H.W.
Borges, Ashley
Boswell, James
Boswell, Professor Gwynneth
Bourne, Dr Michael Arnheim Charles
Bowen, R.V.
Boyd, Michael
Bradley, Peter
Braid, Dr N.W.
Brannigan, I.J.
Briggs, Don
Bristow, G J.
Britten, David
Brodie, Stanley Q.C.
● Broggio, Michael
 Brooking Thomas, Fiona
 Brooks, Jonathan
 Brown, Danny
 Brown, Dr Judith
 Brown, Tony
 Bruce, Peter
 Bruck, David
 Bullock, Dr Gavin
 Burchett, Elizabeth
 Burdett, Dave
 Burgess, Paul
 Burgess, Victoria
 Burns, James
 Burrows, Nigel C.
 Burton, Mark
 Burton, Nick
 Butcher, Sarah
 Butt, Ange
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Butt, David
Cadier, Linda
Cadier, Paul
Cagan, Benj
Cahill, Anthony
Callaghan, Mary
Callen, Sara
Calver, Bruce B.
Cameron, Sheila
Campbell, Dr Nicholas
Canning, Simon
Cannon, Graham
Canter, Professor David
Carins, Daniel
Carlile of Berriew Q.C., Lord
Carne, Simon
Carter, Paul R.
Carver, David
Cavanagh, Dr N.
Cave, Dominic
Cemlyn, Dr Sarah
Champneys, John
Chaney, Mike
Cherrington, Phillip
Chick, Timothy J.
Chilton, James
Clark, Adrian
Clark, Charles
Clarke, Brian
Clarke, Michael W.
Clarke, Jackie
Clarke, Paul
Coggins, Richard
Colclough, Adam
Coleman, Tony
Coles, Pete
Collinson, Jonathan
Connelly, T
Connolly, Abigail
Connor, Steve
Elaine
Cook, John W.
Cooke, Steve
Cooke, Susan
Cooper, Beth
Cooper, John
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Coram, Iain
Corne, Anna
Corrigan, Ray
Coston, James
Cottam, Gervase
Courtney, Christine
Courtney, E. R.
Cozens, Jean
Craig, Robert
Cranmer, Frank
Crawford, Michael Hewson
Crawshaw, Ralph
Cresswell-Plant, John
Crouch, Sheila
Crowe, Ian
Crowhurst, A D
Cule, John Michael
Cunliffe, Janet
Curl, Geoffrey
Curley, Larry
Dalton, R.A.
Darroch, His Honour Judge Alasdair
Davis, Jack
Davison, Andrea
Tom
Dean, Professor Hartley
Dearle, David
Deer, Philip
Dempster, Steven
Denison, Peter
DeSandoli, Susan
de Than, Claire
Devaney, Michael
Dewhurst, Christine
Diamond, Paul
Dick, Charles
Dickson, Professor Brice
Dimmock, Dr Nathan
Donnelly, Dennis
Donovan, Virginia
Douglas, Benedict
Downing, James
Doyle, John
Drew, Philippa
Drummond, Gordon B.
Drury, Mark
104 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
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Dudgeon, Jeffrey
Duff M.E.P., Andrew
Dugdale, David
Dumper, Hildegard
Dunsmore, David L.
Duval, Philip
'DW'
Edison, Peter
Edwards, R.
Edwards, Rupert
Effer, Ernest
Eisenhandler, Claire
Elliott, Bruce
Elliott, Dr Patricia
Ellman, Michael P. D.
Elwood, Anna
Emmott, Steve
Erswell, Dr Chris
Essajee, Huzaifa
Etienne, Michael
Evans, David
Evans, Gary
Evans, Jessica
Evans, Matthew
Evans, R.D.
Everitt, Anthony J.
Faulkner, David
Ferguson, N.
Finnigan, Beth
Fisher, Frankie
Fleming, Sharon
Fletcher, E.
Fletcher, Peter
Flinn, Graham
Florey, Richard
Foley, Seamus
Ford, Derek
Ford, Marie
Fordham Q.C., Michael
Fordham, Nigel
Fox, Michael
Franks, Terry
Frost, Richard
Fryett, P.
Furey, Micheál
Garcia, Elizabeth
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Garrad, Gordon
Gasper, Julia
Gazur, Dr Ben
George, Dr Rob
Ghul, Rayya
Gilbert, Geoff
Gilmore, Angela
Gogan, Mike
Goldspink, Rob
Goodliffe, John
Goodyear, Adam
Gordon, Danka
Gordon, Jack
Goundry, Robert
Gower, Paul
Grant, Alex
Gréci, Lélia
Greenwood, Miss M.
Griffith, David
Griffiths, David W.
Griffiths, Roger
Grudgings, Mrs Jean
Grunewald, H. S.
Gutierrez, Abbi
Gwynn, Roger
Gwynne, Stephen
Hadden, Professor Tom
Hall, Alex
Hall, John Nielsen
Hallard, Valerie
Halliday, Christopher
Hamilton, C.F.
Hamilton, Stuart
Hancock, Andrew
Hardwicke, Tom
Hargreaves, Peter
Harrington, Regina
Harris M.P., Rebecca
Harrison, Pauline
Harrison, Thomas
Harrison-Smith, Tony
Hart, Jean
Harty, Lowenna
Harvey, K.
Harvey, Simon
Hawkins, Peter
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Hayes, Kate
Hayes, Luke
Hazel
Healy-Birt, Eleanor
Heap, Graham
Heatley, C Helliwell, S.
Hemming, John
Henley, Jackie
Henry, Renee
Hickman, Tom
Higgins, David
Hildreth, Margaret
Hill, Chloe
Hill, Jeffrey
Hill, Michael
Hillard, Francis
Hirst, Peter
Hockey, Dr Julia
Hodge, Canon Michael
Hodgson, Eddie
Hodson, Professor Mark
Holland, Ralph
Hollowell, Ann
Holt, Keith
Hooper, J.
Hopkins, David
Hoskins, Gareth
Houston, Fleur
Houston, Walter
Howell, Dominic
Howells, Peter
Hudson, John R.
Hughes, Jacqueline
Hughes, Laurence
Hughes M.P., Simon
Hull, Professor John M.
Hunt, Anita
Hussain, Taniya
Idelbi, Saara
Immanuel, Harold
Irvine, Colin
Jackson, Angela
Jackson, Dennis
Jackson, Harry
Jamall, Saba
James, Christopher L.
 James, Jenita
 Jansen, Kai
 Jaspert, W.P.
 Jefford, Tom
 Jester, Natalie
 Johnson, Deryck
 Johnson, Dr Paul
 Johnson, Guy
 Johnson, Jennie
 Jolly, Elizabeth
 Jones, Caroline
 Jones, Huw
 Jones, Kirsty
 Jones, Dr Madeline V.
 Jones, Trevor
 Jull, Peter
 Jupp, Brian
 Kagan, Professor Carolyn
 Kaplan, Jessica
 Kaya, Julie
 Kemmish, Ian
 Kemp, Claudia
 Kendall, John
 Kenny, Michelle
 Keown, Guy
 Kerr, Alan
 Kerr, Chris
 Kerrigan, Mike
 Khan, Kazim
 Kilby, Chris
 King, Jenny
 Kingsley-Smith, Brian
 Kirk, Ian
 Kirwan, Frank
 Kissane, John
 Kitcat, Jeremy
 Klingsick, Martin
 Koslowski-Smith, Kevin
 Kosminsky, Peter
 Lachal, Laurent
 Lally, J.
 Langley, Anna
 Laribi, Youcef
 Larvor, Brendan
 Latham, Philip
 Lawrence, J.R
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Le Sueur, Professor Andrew
Leadbetter, W.J.
Lees, Brian
Lees, Peter
Lennon, Jamie Andrew
Leonis, Marilyn
Lewis, David
Lewis, David R
Lewis, Harry
Lewis, Jonathan M (Immigration Judge)
Lewis, Mandie
Lipnicki, John
Lloyd, Konnie
Lomax, Dr Peter
Longworth, Jackie
Lonsdale, Anne
Lovell, Luke
Lucas, Clare
Luke, Aaron
Lynch, William
Maas, Robert
Macaulay, Alex
MacCaw, Timothy
MacDonald, Dr Kate
Macehiter, Neil
MacKenzie, Allan
MacKintosh, Scott
Macleod, John
Mactaggart M.P., Fiona
Maher, Gillian
Maldred, Helena
Malik, S.
Mallett, Robina
Manfield, A. John
March, Sally
Marchal, Faith
Marchesi, David
Marsden, Barbara
Marthews, Gregory
Martin, Kate
Martin, Mary
Martin, Steve
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McDermott, John Colin
McDonagh, Michael
Mckay-Dirden, Michael
McKeane, Dr John
McMahon, Tom
McMeekin, Dan
McNab, Elizabeth
Mead, Chris
Mejka, Wladyslaw
Mery, David
Meteyard, Barry
Milan, Michael
Miller, Chris
Miller, Gavin
Miller, J.
Miller, Robert
Milne, Piers
Mindel, Angie
Miselbach, Délise
Moffat, C.E.
Mogg, John
Monroe, Fiona
Moore, Professor David R
Moore, Professor Robert
Morgan, Dr Austen
Morgan, John
Morrison, Rosina
Morton, Andrew
Morton, R.P.
Muers, Robin
Mukherjee, Neil
Mullen, Timothy. I
Mulligan, Peter
Mulqueeney, Ronan
Murphy, Kay
Murray, Alasdair
Murray, John
Murray, Susan
Nash, Daniel
Nicholas, Joseph
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Njoroge, Rose
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Nohr Jorgenson, Anna Katrine
Norris, Michael
North, Professor J.A.
Noyes, Ray
O'Brien, Rita
O'Connor, Patricia
O'Connor, Richard
Olaiya, H.B.A.
Oliver, J. R.
Olsson, John
Orchard, Peter
O'Reilly, Fiona
Orr, Willie
O'Sullivan, Huw
Outhwaite, Reynold
Overstall, Peter
Owens, John
Oxlade, Roger
Padfield, Rick
Palmer, Anne
Parker, Alan
Parker, George
Parkinson, Neil
Partington, Keith N.
Partington, Lynne-Marie
Partridge, Derek W.
Partridge, John
Paterson, Iain
Pathak, Jessica Rani
Pathi, Deepa
Patterson, Michael
Patton, Sheila
Pattrick, Hugh MBE
Payne, Andreas G.
Payne, David
Payne, Robert
Pearson, David
Pender, George
Penny, Gerald
Pepper, Joe
Peppin, Stephen
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Pogge von Strandmann, Hilary
Pogge von Strandmann, Victoria
Pollock, David
Porter, Jessica
Portes, Bobbi
Poulton, Valerie
Poynton, Jeremy
Pragnell, Jim
Pressler, Dr Shirley J.
Proudlock, J.
Pullen, Rhys
Purnell, Chris
Quinn, Lee
Raab MP, Dominic
Raha, Nat
Randall, Graham
Ratcliffe, William
Rathbone, Jeanne
Read, Tim
Reece, Patrick
Rees, Ann
Rees, Meirion
Rees, Shan
Rees, Tom
Reid, Kiron
Rendell, Dr Edward
Rennie, Anne Maria
Riches, Brian
Ridge, P
Ries, Emmanuelle
Riley, Gill
Rob M
Roberts, D.
Roberts, Mike
Roberts, Mr Gwyn
Robertson, John
Robinson, Adrian
Robinson, Alan
Robinson, Cllr. C.
Robinson, Stephanie
Rogers, Linda
Rolfe, Paul
Ronchi, Paolo
Rooms, Nigel
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Row, Miles
Rowlands, Neil
Rowlands, Owen
Ruckman, Neil
Ryder, Ken
Ryder, S. C.
Ryland, Peter
Salsbury, Amy
Salway, Keith
Sanders MP, Adrian
Sanderson, Russell
Sandrey, Emma
Sangster, Richard
Sargeant, John
Sargood, Adrian
Saunders, Stuart
Savage, Peter
Saward, Jill
Saxon, Roger
Schaefer, Barbara
Schnupp, Professor Jan
Seddon, Vicky
Sekindi, Fred
Sells Q.C., Oliver
Shaban, Zekiye
Sharkey, Derick
Sharman, Nick
Shaw, Christina
Shaw, L.
Shaw, Michael
Sheeran, Ralph
Shelley, Diana
Sheridan, Geoff
Sherriff, D.J.B.
Shirley, Martin
Short, David F.
Shroff, Aspi
Shrubb, Kevin
Simkins, Captain Mike
Simmons, Abigail
Skellett, Nicholas
Skelton, Colin
Slater, Mark A.
Smart, Verity
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Snow, William
Solomon, David
Soto-Miranda, Diego F.
Sowerby, Brian
Spencer, Dr Michael
Stagles, J.R.
Stainton, Richard
Staniforth, Jackie
Starling, Sam
Stedman, Simon
Stenning, Keith
Sterland, Mike
Stevenson, John
Stevenson, Mark
Stirling, Damian
Stone, Kate
Stone, Will
Strasburger, Paul
Stuttaford, Maria
Swallow, John
Tansley, Peter
Taylor, Angela
Taylor, David F.
Taylor, Jon
Taylor, Peter Jason
Tehrani, Professor Dabir H.
Telford, Rob
Theaker, Linda
Thomas, David
Thomas, Hanna
Thompson, Kenneth
Thompson, Thomas
Todd, Gabrielle
Todd, Trisha
Tomlin, Alison
Torrance, Carolyn
Towers, Philip
Townsley, Stephen
Tredgold, Christopher
Tredgold, Christopher
Tucker, Andrew
Tucker, Phil
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Turner, Dave
Turner, Grahame
Turner, Rollo
Turnsek, Helmut
Turpin, Colin
Van Someren, Laurie
Veja, Retesh
Vero, Mark
Vineall Q.C., Nicholas
Vinton, Richard
Walinets, Stanley
Walker, Antony
Walker, Kelvin
Wall, Alec
Walsh, Thomas
Walton, Dr Ronald G.
Walton, Keith
Ward, John
Warren, Paul
Warren, Peter
Waters, Lee
Watkins, Stephen
Watkins, Elizabeth
Watkins, Mike
Weatherald, Cathy
Webber, Thomas
Wheeler, Stephen
Wheeler, William
Whelan, John
Whitaker of Beeston, Baroness
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White, Simon
Whitenstall, Joseph
Whittaker, David
Wilkes, Jon
Wilkins, Joan
Wilkinson, Sue
Willenbrock, Charles
Williams, Alan
Williams, Amy
Williams, David
Williams, Gareth
Williams, Paul
Winslow, Lucius
Wintemute, Professor Robert
Withers, Clive
Wood, Stella
Woodhouse, George
Woodman, Connor
Woodroffe, Glen
Woolley, Jasmine
Worrall, Stephen
Wright, Andrew
Wright, J.
Wrigley, Peter
Wyatt, Richard
Yates, Pol
Yawer, Emad
Yeo, Rebecca
Young, Brian
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Annex G Consultation Summary A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 111
112 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Consultation Summary © Members of the Commission on a Bill of Rights 2012
You may re-use this information (not including logos) free of charge in any format or
medium, under the terms of the Open Government Licence. To view this licence, visit
http://www.nationalarchives.gov.uk/doc/open-government-licence/.
Any enquiries regarding this publication and copyright should be sent to us at
[email protected].
This publication is available for download on the Commission’s website at
www.justice.gov.uk/about/cbr/index.htm.
2
Table of Contents Introduction .................................................................................................................... 4
Views on a UK Bill of Rights and on the Human Rights Act 1998 ................................ 5
Do we need or should we have a UK Bill of Rights? ............................................. 5
Alternatives to a UK Bill of Rights or to the current system................................. 15
The Human Rights Act 1998: retain or repeal? ................................................... 16
Incorporation of the European Convention on Human Rights ............................ 18
If there were to be a UK Bill of Rights should it replace or sit alongside the Human Rights Act 1998? .................................................................................. 24
Expressing rights differently ........................................................................................ 26
Additional rights ........................................................................................................... 30
Balancing certain rights ............................................................................................... 41
The duty on public authorities...................................................................................... 44
The role of responsibilities in any UK Bill of Rights..................................................... 48
The duty to take Strasbourg case law “into account” .................................................. 54
The balance between courts and Parliament .............................................................. 58
Devolution and a UK Bill of Rights .............................................................................. 65
Promoting a better understanding of the true scope of our obligations under the European Convention on Human Rights ..................................................................... 79
Reform of the European Court of Human Rights ........................................................ 82
3
Introduction In August 2011 the Commission published a Discussion Paper entitled ‘Do we need
a UK Bill of Rights?’ which sought the views of the public on four broad questions.
The Commission received 904 responses to its Discussion Paper from individuals
and organisations, many of which were statutory bodies, umbrella organisations or
representative bodies. Building on the wide range of views received, the Commission
published a Consultation Paper in July 2012 that asked 15 further questions. The
Commission received 214 responses to the Consultation Paper from individuals and
organisations. In addition 1,875 pro forma postcard responses were received to the
Consultation Paper from individuals as part of two organised responses.
This paper summarises the responses to both papers. Not all respondents answered
all questions and, as a result, the sample sizes in respect of each question vary.
Where an individual or organisation responded to both papers on the same issue, we
have counted their views only once. An element of interpretation and judgment was
necessarily required in analysing the many views expressed. All responses are
available in full on the Commission’s website.
4
Views on a UK Bill of Rights and on the Human Rights Act 1998 Do we need or should we have a UK Bill of Rights?
1. In our first consultation, we asked: (1) do you think we need a UK Bill of
Rights?
2. In our second consultation, we asked:
Question 1: What do you think would be the advantages or
disadvantages of a UK Bill of Rights? Do you think that there
are alternatives to either our existing arrangements or to a UK
Bill of Rights that would achieve the same benefits? If you
think that there are disadvantages to a UK Bill of Rights, do
you think that the benefits outweigh them? Whether or not you
favour a UK Bill of Rights, do you think that the Human Rights
Act ought to be retained or repealed?
3. Given the overlapping content of these questions, we considered the
responses to these two questions together.
4. Approximately 970 respondents across both consultations answered the
question of whether we need or should have a UK Bill of Rights, many of
whom were statutory bodies or umbrella organisations.
5. Of those who addressed this question, approximately 440 (45%) opposed a
UK Bill of Rights, 270 (28%) advocated a Bill of Rights or expressed
conditional support for one, and 260 (27%) were equivocal, meaning that they
discussed the advantages or disadvantages of a UK Bill of Rights without
concluding expressly in favour of or in opposition to such a Bill.
Equivocal
27%
Advocate
28%
Oppose
45%
5
The Human Rights Act 1998: retain or repeal?
6. Whether or not they favoured a UK Bill of Rights, around 800 respondents
expressed a view on whether we should retain or repeal the Human Rights
Act. The overwhelming majority of these – approximately 700 respondents
(88%) – were in favour of retaining the Human Rights Act. In addition, the
Commission received around 140 pro forma responses to our first
consultation and 1,875 postcard responses to our second consultation, all of
which supported retention of the Human Rights Act but did not express a view
on whether we need or should have a UK Bill of Rights.
Repeal
4%
Repeal
12%
Retain
88%
Responses excluding postcards and proforma responses
7. Retain
96%
Responses including postcards and proforma responses
Around 70 respondents expressed a view on alternatives to a UK Bill of Rights
or the status quo. Of those, just under a half advocated amending the Human
Rights Act and a quarter favoured reform of the Strasbourg Court and/or the
Convention.
Advantages and disadvantages of a UK Bill of Rights
8. A variety of models were envisaged by both those who advocated and those
who opposed a UK Bill of Rights. In general terms, six main outcomes were
put forward in response to the Commission’s consultations. Many of these
centered on what were seen as good or bad features of the Human Rights Act
1998. These outcomes were:
1. the Human Rights Act should remain unchanged and continue to
operate as at present (the status quo position); and no Bill of
Rights should be introduced;
2. the Human Rights Act should remain unchanged and continue to
operate as at present; but should be supplemented by a Bill of
Rights for Northern Ireland (over which discussions are still
ongoing);
6
3. the Human Rights Act should remain unchanged and continue to
operate as at present; but should be supplemented by a purely
declaratory Bill of Rights (or a purely declaratory Bill of Rights and
Responsibilities);
4. the Human Rights Act should be amended to include any of:
a. a modification of the terminology and statements of
existing rights; and/or
b. the addition of any qualifying/limiting/balancing clauses;
and/or
c. the addition of certain responsibilities; and/or
d. a modification of the courts’ interpretive duties; and/or
e. a modification of enforcement and other provisions;
5. the Human Rights Act should be repealed and replaced by a new
UK Bill of Rights, which could:
a. restate Convention rights as currently stated in schedule 1
to the Human Rights Act and/or adopt modified language;
and/or
b. restate Convention rights and add new rights; and/or
c. restate Convention rights and add provisions that qualify or
limit rights and/or set out a balance between rights; and/or
d. add new provisions on enforcement and related matters;
and/or
e. make provision for distinct chapters or separately enacted
instruments for each of Northern Ireland, Scotland and
Wales; and
6. the Human Rights Act should be repealed and a new,
entrenched Bill of Rights should be enacted as part of a new
constitutional settlement.
9. The summary below sets out the six main reasons cited by respondents who
opposed such a Bill, and the five main reasons cited by respondents in
support of a UK Bill of Rights.1 The reasons set out here relate to all of the
1
Many respondents gave more than one reason for their view and we have included each respondent’s view in as many of the above categories as is applicable. 7
envisaged models except (4) above, which we discuss further below in this
summary.
Why did respondents oppose a UK Bill of Rights?
10. The view most commonly expressed by opponents of a UK Bill of Rights –
some 350 in total – was that the Human Rights Act was already a legally
enforceable Bill of Rights and that it was working well.2 As JUSTICE said to us
in their response to our first consultation paper:
“the HRA 1998 satisfies the basic, core criteria which characterise
all bills of rights: it represents a commitment to the human rights
considered of particular importance to the UK; it binds the
government and can only be overridden with considerable difficulty.
It provides an essential means of redress for violations of rights
within the UK. It was described, on its introduction, as a ‘bill of
rights’ for the UK.”3
11. Another respondent wrote:
“we already have a UK Bill of Rights, called the Human Rights Act,
which largely incorporated all the rights and freedoms of the
European Convention. There are no rights contained in the HRA
which I would wish to see removed and would wish to emphasise
this point in the strongest possible terms.”4
12. Some 95 respondents felt that even if the Human Rights Act had flaws, a UK
Bill of Rights was not the answer because the current debate, in the view of
some, stemmed from a political motivation to dilute human rights protections
and/or to reduce the powers of the European Court of Human Rights. As the
British Institute of Human Rights wrote:
“we note that the Commission has been established against the
backdrop of disagreement among the two parties in government
over their position on the Human Rights Act… We note that neither
the Coalition Agreement for Government nor the Commission’s
Terms of Reference even mention the HRA… We also note that it
was ten months from the Agreement before the Commission was
created and that its launch came quickly off the back of intense
political and media hostility towards the HRA…
2
This number does not encompass all those who supported the retention of the Human Rights Act, as not all of
those in favour of retention were opposed to a Bill of Rights; and not all expressed a view on whether they
supported or opposed a Bill of Rights. Analysis of the number of respondents to both consultations in favour of
retaining the Human Rights Act can be found later in this paper.
3
Discussion Paper Response, p. 7.
4
Simon Ryder, Discussion Paper Response, p. 1.
8
…On the face of it, this Bill of Rights debate may seem like an
opportunity to call for the legal protection of a broader range of
rights beyond those in the Human Rights Act but we have serious
reservations that this is not what is on the table and, in fact, that
human rights may be weakened. The focus on expanding the list of
human rights which are protected may even (inadvertently) be at
the expense of undermining the mechanisms for making those
rights enforceable… This will be disastrous for all people, especially
the most vulnerable members of our society.”5
13. Around 20 respondents drew on common law or other existing rights
instruments – such as the Magna Carta – to suggest that a UK Bill of Rights
was unnecessary or undesirable. As one respondent to our first consultation
wrote:
“we do not need a new Bill of Rights; we have one already, passed
in 1689. This, plus Magna Carta, plus a long history of common law
cases, provided the basis of the democratic liberties we had in
England and the UK until they were taken away, without the
consent of the people, and were placed under the jurisdiction of the
regulations of a foreign entity (EU) and the abstract, theoretical
‘rights’ of the European Human Rights legislation.”6
14. Around 30 respondents opposed to a UK Bill of Rights were concerned about
possible legal or constitutional uncertainty that a Bill of Rights might entail.
Others viewed negatively its possible resource impact on the Government,
Parliament, or the public sector, particularly in the current economic climate:
“it is anticipated that Britain’s financial difficulties will last for many
years and therefore we need to ‘count the cost’ of any new venture.
Has the government calculated the cost of training the numerous
groups that will have to have a specialised knowledge of this
proposed, fundamental and important legislation?”7
“As practising lawyers, the prospect of two human rights acts
horrifies us. We cannot see how that could possibly be in the public
interest.”8
15. Around 50 respondents opposed a UK Bill of Rights on the basis that such a
Bill would weaken the UK’s international standing. As two respondents to our
first consultation argued:
5
Discussion Paper Response, pp. 4‐5.
Laurence Hughes, Discussion Paper Response.
7
Peter Denison, Discussion Paper Response.
8
Neil Farris, Brian Garrett and Ciaran McAteer, Consultation Paper Response, p. 8.
6
9
“there is a risk that by establishing a UK Bill of Rights, the
Government would undermine the integrity of the Council of
Europe, thereby reducing protection for human rights in other
countries.”9
16. Some also pointed out that rights are universal and should not be stated in a
‘British’ way:
“it is of greatest importance that human rights are upheld as
universal, for everyone and not contingent upon the ambits of
power, or sometimes fickle public opinion.”10
17. Finally, some respondents, in particular those in Northern Ireland and
Scotland, were concerned that any attempt to introduce a Bill of Rights at this
time could have adverse constitutional and political consequences for the UK,
particularly if it were undertaken to the exclusion of a Bill of Rights for
Northern Ireland, or if it were undertaken without regard to the implications of
the independence debate in Scotland. As the Scottish Human Rights
Commission said to us:
“the current political climate presents singularly unfavourable
conditions in which to launch a consultation on a UK Bill of Rights
and [the Scottish Human Rights Commission] proposes alternative
steps which are more likely to lead to progressive, rather than
retrogressive, outcomes for the public.”11
18. Similarly, the Faculty of Advocates in Scotland, in their response to our
Consultation Paper stated:
“given the impending [Scottish independence referendum] in 2014 it
may be that matters are in such state of flux as to render the
development of a UK Bill of Rights at this time neither appropriate
nor desirable.”12
19. For many in Northern Ireland, express or implied opposition to a UK Bill of
Rights was based in part on concerns that such an instrument – depending on
its contents – had the potential to affect negatively any progress made to date
on a Northern Ireland Bill of Rights and/or would lead to a diminution in rights
protection contrary to the Belfast/Good Friday Agreement. For example, the
Human Rights Consortium said:
“firstly, we would be totally opposed to a UK [Bill of Rights] if its
discussion/passage were to be used as an excuse not to proceed
9
Amy Salsbury, Discussion Paper Response. Ralph Sheeran, Discussion Paper Response. 11
Discussion Paper Response, p. 1. 12
Consultation Paper Response, p. 9. 10
10
with a distinct Northern Ireland Bill of Rights. A specific [Northern
Ireland Bill of Rights] was provided for as part of the Belfast/Good
Friday Agreement and subsequent opinion polls confirm that it is
supported by the majority of people on both sides of the community
in Northern Ireland. Secondly, we also fear that a [UK Bill of Rights]
could be used as an excuse to undermine or replace the Human
Rights Act itself, with the very real risk that the people of Northern
Ireland will have less, rather than more, human rights protections
post-conflict.”13
20. These views were echoed by many in Northern Ireland.
Views in favour of a UK Bill of Rights
21. Of the 270 respondents who expressly advocated a UK Bill of Rights or
expressed conditional support for one, some 140 respondents viewed such a
Bill as an opportunity to adopt additional rights supplementary to those set
forth in the Human Rights Act.14
“The Bill presents an opportunity to revise the rules on how
evidence can be used in criminal investigations and in court. In
particular the Bill should set in place a system which ensures that
no person can be convicted of a crime when they are not aware of
the evidence or the charge against them and given an opportunity
to challenge it.”15
“The Bill of Rights represents an important opportunity to establish
children’s rights as set out in the UN Convention on the Rights of
the Child (CRC) at a constitutional level in the UK and to
consolidate children’s rights standards in one binding and
enforceable document. At the same time, it can give legal effect in
UK law to the CRC by incorporating it.”16
22. Indeed for some their support for a UK Bill of Rights appeared to be based
upon it including or on the presumption that it would include additional rights.
“The Royal College of Psychiatrists (hereafter ‘the College’) is in
favour of the creation of a UK Bill of Rights that incorporates and
builds on the obligations of the European Convention on Human
13
Consultation Paper Response, p. 1.
Other respondents were in favour of additional rights but did not expressly advocate a Bill of Rights because it
might make possible the inclusion of such rights. Indeed, many respondents in favour of the incorporation of
additional rights into UK law were opposed to a Bill of Rights. We did not include these respondents in our analysis
here; but their views are discussed elsewhere in this paper.
15
Adrian Sanders MP, Discussion Paper Response, p. 3.
16
UNICEF, Discussion Paper Response, p. 2.
14
11
Rights, ensures that those rights continue to be enshrined in UK
law, and protects and extends individual liberties.”17
23. We provide more detail as to the categories of additional rights advocated by
respondents later in this paper.
24. Some 50 respondents urged that a UK Bill of Rights was needed to replace
the Human Rights Act either because the Act was negatively perceived –
regardless of whether that perception was informed or justified – or because
they believed that the Human Rights Act was leading to perverse outcomes.
For example, Charlie Elphicke MP wrote in response to our second
consultation:
“there must be a new Bill of Rights that replaces the Human Rights
Act. The primary change this Bill must help to make is to place
human rights law back under the effective control of Parliament, as
the elected, accountable legislature of our nation state. Only by
restoring Parliamentary democracy in this area can we stop the
British people being forced to live with those judicial interpretations
of human rights that strike the great majority as absurd and unjust.
This is corroding respect for human rights and leading to a loss of
faith in the democratic system.”18
25. Other respondents to our first consultation stated:
“I feel that the balance on rights in this country has swung too far to
the persistent and vocal minority sometimes violating the rights of
the great majority of people as a consequence, with too much
weight being given to the person or body making a rights
submission to court.”19
“[A UK Bill of Rights] should ensure the rights of those of us living in
this country and not offer unwarranted protection to those visitors to
these islands, who break our laws and defy our way of life, or use
us to gain benefits which they have not earned or deserved.”20
26. Some 25 respondents who favoured a UK Bill of Rights thought that such an
instrument would allow for greater domestic ‘ownership’ of rights with the
result that human rights would be perceived as less ‘foreign’. One respondent
submitted to our first consultation that:
“I feel very much that we do need a UK Bill of Rights. At the
moment, the definition of how the European Convention should be
17
Discussion Paper Response, p. 2. Consultation Paper Response, p. 1. 19
Ben Biggin, Discussion Paper Response, p. 1. 20
Brian Sowerby, Discussion Paper Response. 18
12
applied in the UK is abrogated to the European Court. This means
that effectively, laws and interpretations about English and Scottish
law are being made by an unelected and unaccountable body that
has scant regard for UK law and practice and has an overarching
interest in forcing an equal interpretation in all the European
Sovereign countries… I would wish to see attention given to how
we safeguard the rights of existing citizens of the UK against
pseudo-rights coming from Europe and elsewhere.”21
27. A related argument was that a UK Bill of Rights would provide an opportunity
to express rights in language that better reflected our domestic heritage. The
UK Independence Party wrote in response to our first consultation that:
“A new British Bill of Rights should be couched in language which
reflects the long history of the affirmation of rights in the UK going
back to The Great Charter… Since the Rights confirmed to the
people of the United Kingdom are to be incorporated in this
document, it should be one which by its language inspires the
reader and fully reflect the vital importance of the freedoms
contained therein to our people. Use of such language can help
inspire confidence in the document and can nonetheless be easily
read.” 22
28. Some 25 respondents supported a UK Bill of Rights because they felt it would
have enhanced status or important symbolic value. Respondents in this
category included those who advocated a written constitution, those who felt
that such a Bill would provide greater certainty about rights than other law;
and those who felt that such a Bill would bring social benefits – such as a
unifying effect on the United Kingdom as a whole. For example, the Family
Law Society wrote in response to our second consultation that:
“we agree strongly that the UK needs a Bill of Rights. The Bill of
Rights should be comprehensive and serve as the written
constitution for the UK. While our primary focus is to ensure family
rights and protections are constitutionally enshrined, we feel there
are broader issues of ‘social compact’ that must be addressed… ”23
29. ‘Unlock Democracy’, who organised a campaign in response to our first
consultation in favour of a Bill of Rights being drawn up by an open and
inclusive process involving maximum public participation, argued that:
“we take the view that a Bill of Rights must be far more than a legal
document. It should be there to express the identity of our society,
21
David R. Lewis, Discussion Paper Response, p. 1.
Discussion Paper Response, p. 2.
23
Consultation Paper Response, p. 1.
22
13
to lay down the basic principles of British democracy, to reflect and
protect the nation’s traditions of freedom and liberty.”24
30. In addition, some 10 respondents were in favour of a UK Bill of Rights
primarily because they felt it would be an opportunity to better link rights to
responsibilities.25 As one respondent to our Discussion Paper stated:
“I strongly support the provision of a responsibility section within the
Bill of Rights as a quid pro quo. E.g. you have these rights but in
doing so you accept them with equal responsibility. Of course, they
should be broad and not prescriptive – but there needs to be
something in the legal system to try and cut down on abuses of well
meaning and important rights. There is too much attached to
individual rights at the expensive of the collective, without reference
to responsibility.”26
24
Discussion Paper Response, p. 4.
Other respondents were in favour of linking rights to responsibilities but did not expressly advocate a Bill of Rights
because it would make such linkage possible. We did not include these respondents in our analysis; but we analyse
respondents’ general positions on linking rights to responsibilities later in this paper.
26
Ben Biggin, Discussion Paper Response, p. 3.
25
14
Alternatives to a UK Bill of Rights or to the current system
31. We asked respondents to our second consultation for their views on
alternatives – either to a UK Bill of Rights or to the status quo – that the
Commission might consider. Approximately 70 respondents to our two
consultation papers expressed a view on possible alternatives to a UK Bill of
Rights.
32. Just over half of these advocated amending the Human Rights Act as an
alternative to a UK Bill of Rights or the status quo. Some respondents desired
reform of the mechanisms of the Human Rights Act, such as clarification of
the requirement that judges ‘take into account’ Strasbourg case law. Some
preferred amendment as a way to incorporate additional human rights
protections into domestic law. For example the Law Society of England and
Wales said in response to our first consultation that:
“the Law Society recommends that The Human Rights Act 1998
should be retained and should be accompanied by a programme of
public education, outreach and debate to enhance understanding
and legitimacy. Additional rights can be added by amendment to
the HRA but no rights should be diluted or taken away.”27
33. The UK Publishers’ Association stated that:
“we believe very strongly that, if anything, existing Human Rights
need clarifying and – if necessary – strengthening, rather than
replacing with new legislation or codification. It is certainly the case
that publishers would welcome any strengthening of Article 10.1 on
Freedom of Expression (subject as it is, at present, to the
conditions and qualifications in 10.2).”28
34. 27
28
Approximately one quarter proposed that the UK should work with the Council
of Europe to reform the Strasbourg Court and/or the Convention as an
alternative to enacting a UK Bill of Rights or maintaining the status quo. The
remainder advocated repealing the Human Rights Act without adopting a UK
Bill of Rights or issuing guidance to the judiciary on the interpretation of the
Human Rights Act.
Discussion Paper Response, p. 1. Discussion Paper Response, p. 1. 15
The Human Rights Act 1998: retain or repeal?
35. As noted above, regardless of their views on a UK Bill of Rights, around 800
respondents expressed a view on whether we should retain or repeal the
Human Rights Act. The overwhelming majority – approximately 700
respondents – wanted to retain the Human Rights Act. In addition, the
Commission received around 140 pro-forma responses to our first
consultation and 1,875 postcard responses to our second consultation in
connection with organised campaigns, all of which supported retention of the
Human Rights Act but did not express a view on whether we need or should
have a UK Bill of Rights.
36. The principal groups involved in organising these campaigns were the British
Institute of Human Rights, the Northern Ireland Human Rights Consortium,
Liberty and Unlock Democracy:
● 631 individuals signed postcards to the Commission that had
been prepared by the British Institute of Human Rights in
response to the Commission’s second consultation. These stated
that “I want to tell you to keep the Human Rights Act. The Human
Rights Act is a vital safety net that protects us all, and especially
at times of vulnerability. The Human Rights Act is about who we
are and our values. Please don’t let your actions take away our
rights and freedoms”;
● at least 50 individuals wrote to the Commission in terms
suggested by the British Institute of Human Rights in response to
the first consultation. These responses asked the Commission to
“ensure that the Human Rights Act remains intact”;
● 1,244 individuals signed postcards which were prepared by and
sent to the Commission by the Northern Ireland Human Rights
Consortium. Although a number of respondents included
additional comments, all of these postcards stated that “the NI
debate takes as its starting point the existence of the Human
Rights Act (since this puts into practical effect the European
Convention) and this Act should, if anything, be added to, not
amended; it must not be weakened”;
● at least 40 respondents wrote to the Commission in terms urged
by Liberty in response to the first consultation. These individuals
wrote: “we have a Bill of Rights and it’s called the Human Rights
Act”; and
● at least 50 respondents wrote to the Commission in terms urged
by Unlock Democracy in response to the first consultation. These
16
individuals wrote “build on the existing Human Rights Act and
guarantee the rights of everyone living in the United Kingdom.”
17
Incorporation of the European Convention on Human Rights
37. One of the principal effects of the Human Rights Act was that it ‘incorporated’
into domestic law, or gave domestic effect to, the rights contained in the
European Convention on Human Rights. This meant that individuals could, for
the first time, bring claims in domestic courts for alleged breaches of their
Convention rights. Prior to the Act coming into force, individuals could only
seek remedies in the European Court of Human Rights for breaches of their
Convention rights. In our second consultation, we asked:
Question 2: In considering the arguments for and against a UK
Bill of Rights, to what extent do you believe that the European
Convention on Human Rights should or should not remain
incorporated into our domestic law?
38. Many respondents to both our consultations told us whether they viewed the
European Convention on Human Rights and the rights it contains, positively or
negatively, but did not directly address the question of whether the
Convention rights should remain incorporated.
39. As already noted, the Commission received a large number of submissions in
support of retaining the Human Rights Act 1998, including around 700
respondents to our two consultation papers and an additional 1,875 postcards
and around 140 pro-forma responses on this issue. Though we have recorded
these views on the Human Rights Act in another part of this paper, we have
included responses and postcards in the analysis of the question of continued
incorporation only where respondents were clear that they supported retention
of the Human Rights Act because it incorporates the Convention into domestic
law. We have included respondents who sent a postcard in connection with
the campaign by the Northern Ireland Human Rights Consortium because the
text of those postcards expressed support for the Human Rights Act for the
reason that it “puts into practical effect the European Convention.” We have
not included all of the 631 respondents who sent postcards in connection with
the campaign by the British Institute of Human Rights, unless they also
expressed views on the issue. The text of the BIHR postcards stated that the
Human Rights Act is “about who we are and our values” and “a vital safety net
that protects us all, especially at times of vulnerability” but did not explicitly
address the issue of incorporation.
40. Around 1,450 respondents to both consultations addressed this issue,
including 1,244 individuals who sent the Commission postcard responses.
41. Some 1,415 respondents supported the continued incorporation of the
Convention into domestic law. A few of those who addressed the question
were opposed to the continued incorporation of the Convention.
18
Were respondents in favour of the continued incorporation of the European Convention on Human Rights into domestic law? No
2%
Yes
98%
Why did respondents favour continued incorporation?
42. Not all respondents gave reasons for their views. Many were concerned that
‘de-incorporation’ of the Convention rights would have a negative impact on
the enforceability of human rights protections in the United Kingdom. Some
respondents pointed out that if Convention rights could only be asserted in
Strasbourg, the cost of litigation would be prohibitive for many people. For
example, one respondent stated:
“if… Convention rights could only be asserted in Strasbourg… the
only claimants who would be able to assert those rights would be
institutional litigants, the very rich or those who were legally
aided.”29
43. In addition, in the light of the backlog of cases in the European Court, it was
stated that de-incorporation would mean that adjudication of Convention rights
would meet with even longer delays. As Professor Francesca Klug and Amy
Ruth Williams said in their response to our second consultation:
“if the link with the European Convention on Human Rights is
entirely broken in any new UK Bill of Rights… it would almost
certainly result in more cases being decided by the European Court
in Strasbourg, thereby thwarting efforts being made at an
29
Frank Cranmer, Consultation Paper Response, p. 2. 19
international level to reduce the court’s backlog and reducing the
influence of UK judges on ECHR jurisprudence.”30
44. One respondent said:
“before the Human Rights Act was passed… claimants had to fight
their case all the way to the top of an ECHR-deaf system, only to
take their case to Strasbourg and be told, years later, that they
should have won at the start. This is clearly madness and justice
delayed is justice denied. David Cameron says he doesn’t want
British cases decided in Strasbourg. So keep human rights at
home!”31
45. Other respondents were concerned that creating a Bill of Rights separate from
the Convention would cause confusion in interpreting human rights law in the
UK; and with it, increased litigation costs. Some felt that de-incorporation
would send a negative message to Council of Europe members overseas and
to other nations concerning Britain’s commitment to human rights. It was also
felt that de-incorporation could entail the loss of valuable dialogue between
UK courts and Strasbourg, which has arisen following from the Human Rights
Act. As Liberty wrote in response to our first consultation:
“just as the HRA strikes a balance between protecting
parliamentary sovereignty and the judicial protection of rights and
freedoms, so too has it allowed for the development of human
rights jurisprudence by our domestic courts, while still ensuring that
the UK complies with its international obligations. The incorporation
mechanism adopted by the HRA requires domestic courts to take
account of – and not be bound by – European Court of Human
Rights case law. Accordingly, the Act has not only allowed for
greater appreciation in Strasbourg of British judgements, it has
encouraged dialogue, disagreement and the development of British
human rights principles… The HRA has… fundamentally
strengthened the ‘margin of appreciation’ afforded to the UK by the
Court… HRA incorporation mechanisms have led to the protection,
not the denigration of parliamentary decision making. It is difficult to
see how any new ‘British Bill of Rights’ could provide any advances
on the HRA in this respect.”32
46. Some respondents also expressed the view that de-incorporation would
represent a violation of the UK’s commitment under the Belfast/Good Friday
Agreement to incorporate the European Convention on Human Rights into
30
Consultation Paper Response, p. 1.
Tim MacDonald, Consultation Paper Response, additional text on a postcard sent to the Commission as part of a
campaign organised by the British Institute of Human Rights.
32
Discussion Paper Response, p. 39.
31
20
Northern Ireland law. For example, the Northern Ireland Human Rights
Consortium said in response to our second consultation that:
“we would also point out that the ECHR and its enactment into
domestic legislation formed one of the central human rights
protections for Northern Ireland, committed to by the British
Government under the Belfast/Good Friday Agreement, [which
states that] ‘the British Government will complete incorporation into
Northern Ireland law of the European Convention on Human Rights
(ECHR), with direct access to the courts and remedies for breach of
the Convention, including power for the courts to overrule Assembly
legislation on grounds of inconsistency.’ To lose this domestic level
of protection of ECHR rights would therefore represent a serious
violation of the international treaty that is the Belfast/Good Friday
Agreement.”33
Why did respondents oppose continued incorporation?
47. The small number of respondents who were opposed to continued
incorporation of the Convention thought that the Human Rights Act had
eroded national sovereignty by obliging the courts to take into account
Strasbourg jurisprudence. A few respondents expressed an explicit
preference to return to the pre-Human Rights Act position because, in their
view, it gave Parliament greater freedom to ignore decisions of the Strasbourg
Court with which it disagreed. Other respondents thought that the Human
Rights Act caused an undesirable shift in favour of the judiciary and away
from the executive and/or Parliament. As three respondents to our second
consultation stated:
“the ECHR should not be incorporated into our domestic law. There
is no need for the UK with its highly developed judicial system to
refer to an external Convention to provide such rights as are
necessary to maintain a wholesome British society. There is even
less need to refer to an external court if a UK Bill of Rights is
enacted because that Act will itself incorporate the key elements
without the need [for] a Convention.”34
“I believe that the United Kingdom should… return to the position
prior to the Human Rights Act 1998. The human rights agenda is
simply a political agenda with little connection to any fundamental
rights… If I had thought that within 7 years, I would be arguing for
the right of a Christian to wear a Cross at British Airways (that
permitted the hijab, turban and Siska), I would not have believed it
and if I had said it back in 1998, it would not have been believed:
33
34
Consultation Paper Response, p. 2.
Fred Silvester, Consultation Paper Response, pp. 1‐ 2.
21
Eweida v British Airways… Have the strength of your convictions
and common sense and abandon this failed project.”35
“The supremacy of the ECHR over any political institution means
that a British Bill of Rights is ineffective, redundant and
automatically superseded by the European Convention. If the UK
continues to bind itself to the ECHR, there is no point to this
Commission’s exercise to produce a British Bill of Rights… a
decision has to be made between the ECHR, or a British Bill of
Rights.”36
48. A small number of respondents to the Consultation Paper stated that they
considered it to be outside the terms of reference of the Commission to pose
a question relating to whether the Convention should remain incorporated into
domestic law. For example, Stephen Hockman QC stated that:
“I would respectfully draw the Commission’s attention to its terms of
reference, which mandate the Commission to investigate the
creation of a UK Bill of Rights that incorporates and builds on all our
obligations under the ECHR and ensures these rights continue to
be enshrined in UK law. I hope the Commission will not seek to
make recommendations which are inconsistent with its own terms
of reference, which would surely nullify its work ab initio.” 37
49. The Scottish Human Rights Commission and Northern Ireland Human Rights
Commission made the same point:
“the Scottish Human Rights Commission understands that the
Commission’s terms of reference explicitly exclude this type of
question from the Commission’s remit.”38
“The Northern Ireland Human Rights Commission is concerned that
this particular question appears to be outwith the mandate of the
Commission, which as stated, in its terms of reference was 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, ensures that these rights continue to be enshrined
in UK law, and protects and extends our liberties.”39
50. A few respondents also objected to the question on the basis that they did not
view the Convention as ‘incorporated’ into domestic law at present. They
pointed out that the Human Rights Act gave ‘further effect’ to Convention
35
Paul Diamond, Discussion Paper Response.
Andrew Smith, Discussion Paper Response, p. 2.
37
Consultation Paper Response, p. 1. Emphasis in original.
38
Consultation Paper Response, p. 4.
39
Consultation Paper Response, p. 4.
36
22
rights in UK law but that this was not the same as making the Convention part
of domestic law. They argued that courts were still free to depart from
Strasbourg rulings with which they disagreed – and so, as a matter of
domestic law, the UK was not bound by the Convention in the way that it
would have been if Convention jurisprudence was given direct effect in UK
law.
23
If there were to be a UK Bill of Rights should it replace or sit
alongside the Human Rights Act 1998?
51. In our second consultation, we asked respondents:
Question 3: If there were to be a UK Bill of Rights, should it
replace or sit alongside the Human Rights Act 1998?
52. Some respondents to our first consultation also addressed this issue, even
though we posed no specific question in relation to it. Altogether, some 170
respondents across our two consultation papers answered this question. Of
those who responded, some 90 respondents thought that a UK Bill of Rights
should sit alongside the Human Rights Act, some 60 respondents thought that
a UK Bill of Rights should replace the Human Rights Act, and some 20 were
equivocal, meaning that they set out considerations in relation to both
positions without stating an explicit preference for one or the other. Not all
respondents who expressed a view on this question were in favour of a Bill of
Rights and some were responding only against the contingency that such an
instrument might be introduced.
If there were to be a UK Bill of Rights, should it replace or sit
alongside the Human Rights Act 1998?
12%
35%
Replace
Sit alongside
Equivocal
53%
Why did respondents favour any new Bill of Rights sitting alongside the Human
Rights Act?
53. Those in favour of any UK Bill of Rights sitting alongside the Human Rights
Act expressed the view that the Act was working well. For example, the
Darlington Association for Disability said:
24
“if the aim is to strengthen the protection of rights, there is no need
to scrap or weaken the Human Rights Act… New laws, such as a
Bill of Rights, can be enacted and live alongside the HRA. Any
consideration of additional rights by the Commission should be
about building on, not undermining, the rights and mechanisms of
the HRA.”40
Why did respondents favour any new UK Bill of Rights replacing the Human
Rights Act?
54. Many of those who thought that any UK Bill of Rights should replace the
Human Rights Act cited negative perceptions of the 1998 Act, or of the
European Convention on Human Rights. For example, Ulster Human Rights
Watch stated in response to our second consultation that:
“if a comprehensive UK Bill of Rights was created, it should be
associated with the denunciation of the European Convention. In
this case, the Human Rights Act 1998 would no longer be required.
This will allow the United Kingdom to develop its own interpretation
of rights and fundamental freedoms on the basis of its JudeoChristian heritage, without interference from the European Court of
Human Rights.”41
55. Others expressed concerns about the confusion associated with having two
different Acts. For example, practising lawyers Neil Farris, Brian Garrett and
Ciaran McAteer said in their joint response to our second consultation that:
“as practising lawyers, the prospect of two human rights acts
horrifies us. We cannot see how that could possibly be in the public
interest. However, should it be democratically decided by
Parliament that a UK Bill of Rights should be enacted, we see no
alternative but that it should encompass the Human Rights Act.
Hopefully, in such a scenario, the provisions of the Human Rights
Act would be retained in the new legislation, but this is not to be
taken as in any way support for repeal of the Human Rights Act.”42
40
Discussion Paper Response, p. 1. Consultation Paper Response, p. 4. 42
Consultation Paper Response, p. 9. 41
25
Expressing rights differently 56. At the moment, the rights in the Human Rights Act 1998 are written in
identical words to those used in the European Convention on Human Rights.
If there were to be a UK Bill of Rights, there is a question about whether the
rights in it should still be written in these words in order, for example, to avoid
confusion and legal uncertainty, or whether the rights should be written in
language that better reflects their UK constitutional heritage and/or changes in
our society since the original European Convention was drafted in the late
1940s. In our Consultation Paper, we asked for views on this question,
including on what the advantages or disadvantages would be to expressing
our rights differently in a UK Bill of Rights.
Question 4: Should the rights and freedoms in any UK Bill of
Rights be expressed in the same or different language from
that currently used in the Human Rights Act and the European
Convention on Human Rights? If different, in what ways
should the rights and freedoms be differently expressed?
Question 5: What advantages or disadvantages do you think
there would be, if any, if the rights and freedoms in any UK Bill
of Rights were expressed in different language from that used
in the European Convention on Human Rights and the Human
Rights Act 1998?
57. Even though we did not ask this question in our Discussion Paper,
approximately 100 respondents to our two consultations addressed these
questions. Over two thirds of these were opposed to expressing rights in
language that differed from that currently used in the European Convention on
Human Rights and the Human Rights Act; less than a quarter of those
expressing a view supported doing so; and the remainder were either
equivocal or unclear on the matter.
Expressing rights in the same language
58. The predominant reasons given by the majority in support of expressing rights
in the same language were that the current system was working well and in
particular that changing rights would cause confusion and legal uncertainty.
59. Many urged that there would be a risk that divergent interpretations of our
fundamental rights would emerge, since courts would be called upon to
interpret different language and different provisions relating to the same or
similar underlying core rights. For example John Hemming MP wrote:
“there are real difficulties in drafting any new terms as the
interpretation is not clear…the arguments about what the meaning
26
of the words are would rack up massive [legal] costs. The
disadvantages would be to legal certainty as people wouldn’t have
any real clarity.”43
60. Sir Geoffrey Bindman QC wrote:
“there is no point in duplicating or replacing the Human Rights
Act…It would be a recipe for chaos.”44
61. The National LGB&T Partnership cited the ‘excessive and unnecessary
litigation’ that could result:
“it is crucial that any legal protections for human rights use the
same language and terminology as that used in the European
Convention on Human Rights. The HRA was drafted in this way for
the deliberate and very good reason that to do otherwise would risk
confusion and excessive and unnecessary litigation in the courts,
which would be both costly and wasteful.”45
62. A small number of respondents argued that there was in particular a risk of
divergence between the Strasbourg court’s interpretations of the European
Convention rights and the interpretations by domestic courts of the rights in a
UK Bill of Rights. For example, Thompsons Solicitors wrote:
“using different language would also introduce the very real
prospect of inconsistency between the content of the UK Bill of
Rights and the interpretation of the European Convention by the
Strasbourg court.”46
63. The other major reason cited by respondents was that the real way to engage
individuals in the UK in their human rights and to make legal instruments more
meaningful to them was not by changing the language to reflect UK heritage
and culture. Rather, it was through better education and public awareness of
rights. For example, Imkaan wrote to us:
“we also question the nature of evidence the Commission of Human
Rights has referred to which supports the position that rewriting the
existing rights would make any difference. If anything resources
would be needed to explain the new wording, which we believe
would be better used on public education to better understand their
rights and the HRA”47
43
Consultation Paper Response, pp. 2‐3. Consultation Paper Response, p.1. 45
Consultation Paper Response, p. 3. 46
Consultation Paper Response, p. 3. 47
Consultation Paper Response, p. 4. 44
27
Expressing rights differently
64. The respondents who advocated expressing rights in language that differed
from the Convention and the Human Rights Act generally cited the view that
the language of our fundamental rights should reflect the UK’s history, its
culture and its values in the modern era:
“A new British Bill of Rights should be couched in language which
reflects the long history of the affirmation of rights in the UK going
back to The Great Charter.”48
“The terms used should reflect the principles and concepts that
have been developed in common law and in line with those used in
former British bills of rights and declarations…The advantage of
using terms that are in line with British principles and concepts
developed through common law is that of promoting its own
interpretation of the rights and freedoms based on its unique and
exemplary history, tradition and Judeo-Christian heritage.”49
“Some of these rights should be reworded or defined to emphasise
their fundamental nature or matters which reflect our own
circumstances. For instance, article 8 might be reworded to
emphasise the need to balance press freedom with the right to
respect for private life, or alternatively to permit interferences in
family or private life so long as they are in accordance with law,
without the additional proportionality requirements which have
tended to introduce uncertainty as to how the article will be applied
in any particular case.”50
65. Some respondents also believed that the language of rights should be
simplified. For example:
“the likelihood is that expressing the rights and freedoms in a more
straightforward way would satisfy those who are presently sceptical.
This could be done by giving more detail, either in the BOR or in
guidelines attached to it of the way the BOR should be
implemented.”51
“Some of the language in the HRA and ECHR could be simplified
and updated.”52
48
UK Independence Party, Consultation Paper Response, p. 2. Ulster Human Rights Watch, Consultation Paper Response, p. 5. 50
Society of Conservative Lawyers, Discussion Paper Response, p. 5. 51
Professor Chris Lewis, Consultation Paper Response, p. 2. 52
Jean Hart, Consultation Paper Response, p. 1. 49
28
“Clarity and transparency are essential, so perhaps the language
should be different. Too much detail is hidden beneath a cloak of
legal jargon.”53
53
Rita Bobbin, Consultation Paper Response, p. 2. 29
Additional rights Introduction 66. Our terms of reference required us to investigate the creation of a UK Bill of
Rights that incorporates and builds on the UK’s obligations under the
European Convention on Human Rights, as well as seeking to protect and
extend our liberties. In our first consultation we asked:
Question 3: What do you think a UK Bill of Rights should contain?
67. Many people argued in our first consultation that a UK Bill of Rights should
contain rights additional to those set out in the Human Rights Act. Others
suggested that the rights set out in that Act already placed a considerable
practical and financial burden on public authorities and that any additional
rights would simply increase that burden. Against that background we asked
the following questions in our second consultation:
Question 6: Do you think any UK Bill of Rights should include
additional rights and, if so, which? Do you have views on the
possible wording of such additional rights as you believe
should be included in any UK Bill of Rights?
Question 7: What in your view would be the advantages,
disadvantages or challenges of the inclusion of such
additional rights?
68. A little over 300 respondents to both consultation papers expressed a view on
the inclusion of additional rights in a UK Bill of Rights.
69. Approximately 260 of those who discussed the issue advocated the inclusion
of additional rights (either a specific right(s) or additional rights in general),
whilst just over 20 were opposed to their inclusion. The remainder did not
express a clear view.
30
6%
7%
Advocate Additional
Rights
Oppose Additional
Rights
equivocal or unclear
87%
70. It is important to recognise, however, that approximately 60% of those
respondents who advocated additional rights were either opposed to,
equivocal, or unclear about the need or desirability of a Bill of Rights in
principle and were therefore responding on the issue of additional rights only
against the contingency that such a Bill nevertheless went ahead. The view
expressed by the Commission’s Advisory Panel Members from Wales
Reverend Aled Edwards and Clive Lewis QC, whilst being made in reference
solely to the views of those in Wales, is representative of many other
responses we received:
“there was no real evidence of any significant call for the creation of
a UK Bill of Rights in order to extend rights – rather a fair reflection
of the evidence was that if a UK Bill of Rights were to be created,
then the opportunity could be taken to expand the rights
recognised.”54
Why did respondents favour the inclusion of additional rights?
71. Approximately 180 of those advocating the inclusion of additional rights
submitted that a UK Bill of Rights should include one or more specific right or
category of rights that did not currently enjoy sufficient protection. For
example, UNISON argued that:
“in the area of criminal procedure many rights, well-established and
indeed constitutional rights in similar jurisdictions, are missing or illdefined in the UK (for example, rights in detention, right to counsel,
right to be free from unlawful search and seizure).”55
72. 54
55
The charity Menter made similar comments in relation to children’s rights:
Consultation Paper Response, p. 2. Consultation paper Response, p. 5. 31
“I would be interested in a UK Bill of Rights that included additional
rights or further clarification on present rights… I would be
particularly interested in additional rights for children (this is a huge
lack).”56
73. Others argued for the incorporation of rights in international treaties which the
UK had ratified and which would thereby become enforceable in domestic law.
Some respondents in this category referred generally to international
instruments, such as the Northern Ireland Human Rights Consortium who
stated that:
“the Human Rights Act contains only a fraction of the rights to which
the UK is subscribed under European and International human
rights law. There are many more rights that people in the UK cannot
easily enforce despite various treaty obligations. Any UK Bill of
Rights should therefore take the Human Rights Act as a minimum
and could add to it the existing human rights obligations which the
UK is party to, including the full incorporation of the ECHR and all
international treaty obligations.”57
74. Others cited specific instruments. We discuss these further below.
Why did respondents oppose the inclusion of additional
rights?
75. Those who opposed the inclusion of additional rights did so for a variety of
reasons. Additionally, some respondents who advocated or were equivocal on
the inclusion of additional rights also highlighted disadvantages and
challenges to the inclusion of additional rights. The most common argument
was that existing rights protection is sufficient. For example, the law firm
Hodge, Jones and Allen made this assertion and went on to state that:
“for example, the rights of children and the right to equality are
protected by specific statutes. The Children’s Act 1989 and Equality
Act 2010 already set out duties on public authorities and other
service providers (a wider extent than the HRA). It is not clear what
their inclusion in a UK Bill of Rights would achieve other than a re­
statement of the statutory protection already in place.”58
76. Some respondents thought that the practical difficulties of including additional
rights presented a considerable challenge to their inclusion in any Bill of
Rights. For example, Fred Silvester argued that:
56
Consultation Paper Response, p. 2. Consultation Paper Response, p. 3. 58
Consultation Paper Response, p. 3. 57
32
“the practical difficulty of producing such changes will lead to a
procedural quagmire or an attempt to drive legislation through in a
most illiberal manner.”59
77. Others believed that additional rights protection was desirable, or might be
desirable, but that this should be achieved by means other than through a UK
Bill of Rights. The Equality and Diversity Forum believed that:
“the realisation of additional rights could and should be done
through a range of mechanisms other than introducing a new Bill of
Rights, which would be confusing and unnecessary.”60
78. Others, such as Training for Women Network Ltd, were wary of the political
motives behind the inclusion of additional rights:
“the disadvantage – a very serious one – is that the development of
such additional rights could be used as another political
smokescreen to undermine the existing protections already existing
in the HRA.”61
79. Others highlighted difficulties regarding the ceding of further power to the
judiciary. For example, Professor Francesca Klug and Amy Ruth Williams
noted that:
“given the current hostility to judicial determination of rights issues
in some quarters… it is important to highlight that more rights would
mean increased judicial involvement.”62
80. Others, like Brian Riches, believed that the cost of including additional rights
would be a disadvantage:
“the inclusion of additional rights poses major problems. The main
one being cost. Who is to pay for the administration of these
additional rights? Who is to pay if it is thought necessary to resort to
legal action? Who is to pay any compensation?”63
59
Consultation Paper Response, p. 4. Consultation Paper Response, p. 4. 61
Consultation Paper Response, p. 3. 62
Consultation Paper Response, p. 6. 63
Consultation Paper Response, p. 2. 60
33
Which rights did respondents advocate or oppose?
Respondents
120
80
40
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Number advocating right/type of rights
Number equivocal on right/type of rights
Number opposing right/type of rights
Socio-Economic Rights
81.
Socio-economic rights were by far the most commonly advocated right or
category of rights with almost 100 respondents advocating their inclusion.
Some ten respondents opposed the inclusion of such rights, whilst
approximately 20 people came to no clear view on whether they should be
included.
82. Those who wished to see socio-economic rights in a UK Bill of Rights
generally argued that the distinction between civil and political rights and
socio-economic rights was an artificial one and that in fact the two were
intrinsically linked. A number of respondents argued that a UK Bill of Rights
should include socio-economic rights in order to fulfil the UK’s obligations
under various treaties such as the International Covenant on Social,
Economic and Cultural Rights.
83. Some respondents pointed to the examples of others bills of rights that
included socio-economic rights, such as those in India, Ireland and South
Africa that contained ‘directive principles’ or required the ‘progressive
realisation’ of such rights, rather than fully justiciable socio-economic rights.
Citing these examples, a range of options for the inclusion of socio-economic
rights were discussed, from fully justiciable rights, to directive principles or
‘progressive realisation’ to non-justiciable or aspirational provisions.
34
84. Others argued that socio-economic rights did not have a place in a UK Bill of
Rights, largely on the basis that the adjudication of such rights necessarily
required decisions regarding the allocation of public finances and that such
decisions should not be matters for the courts. For example, the Residential
Landlords’ Association argued that:
“human rights have no place in terms of the kind of socio economic
fields referred to in the consultation, generally speaking. These
matters should be decisions for the legislature; not the courts. They
can involve delicate balancing exercises and, indeed, public views
expressed through the ballot box. They are not matters for
unelected judges who cannot be removed from office in the way
that politicians can be.”64
A Right to Equality
85. Approximately 50 respondents advocated the inclusion of a right to equality,
while approximately 15 respondents opposed the inclusion of such a right.
86. Those who argued in favour of a free-standing right to equality urged that
Article 14 of the ECHR provided insufficient protection. For example, Age UK
wrote:
“Article 14 of the ECHR only guarantees non-discrimination in the
enjoyment of Convention rights. However, a free-standing equality
clause in a UK Bill of Rights could protect individuals against
discrimination by public authorities and guarantee equal enjoyment
of ‘any right set forth by law’.”65
87. Others noted that the UK already had obligations under international
instruments (such as Article 26 of the International Covenant on Civil and
Political Rights) and urged that these should be incorporated through a free­
standing equality right. Others highlighted shortcomings in the Equality Act
2010, which they believed demonstrated the need for the inclusion of a right to
equality.
88. Those who argued in favour of inclusion of a free-standing right to equality
generally pointed to the text of the right in Protocol 12 to the Convention,
which the UK has not yet ratified. A small number of respondents also
discussed possibilities for the protected grounds that could figure in a right to
equality.
89. Those arguing against the inclusion of a free-standing right to equality in a UK
Bill of Rights generally urged that such protections were best or sufficiently
dealt with by current equality legislation.
64
65
Consultation Paper Response, p. 6. Discussion Paper Response, para 9.8. 35
Children’s Rights
90. Approximately 50 respondents advocated the inclusion of children’s rights and
approximately 10 were expressly opposed.
91. Those in favour generally thought that children in the UK did not currently
enjoy sufficient rights protection and that this should be remedied by including
provisions in a UK Bill of Rights that would incorporate some or all of the UK’s
obligations under international instruments containing children’s rights, such
as the United Nations Convention on the Rights of the Child [UNCRC]. Rights
of the Child UK, citing the UN Committee for the Rights of the Child, strongly
supported this view:
“it is now incontrovertible that children in the UK do not have
sufficient rights protection. When the UN Committee on the Rights
of the Child last examined the implementation of the UNCRC in the
UK, it issued over 120 recommendations. Tellingly, it referred to
‘the general climate of intolerance and negative public attitudes
towards children, especially adolescents’ – something which the
Vice-Chair of the UN Committee on the Rights of the Child later
described as the first such observation for a European country.”66
92. Some respondents, including the Children’s Commissioner for Wales,
submitted that children were particularly vulnerable and argued that more
specific rights relating to children were needed in the UK:
“as indicated in the Declaration of the Rights of the Child: ‘the child,
by reason of his physical and mental immaturity, needs special
safeguards and care, including appropriate legal protection, before
as well as after birth’.”67
93. Those who opposed the inclusion of children’s rights in any UK Bill of Rights
did so in the main because they thought that children’s rights were, or would
be, better addressed through ordinary legislation.
Rights in Criminal and Civil Justice
94. Relatively few respondents discussed the possibility of additional rights in
respect of criminal and civil justice being included in a UK Bill of Rights. A little
under 40 respondents advocated the inclusion of certain such rights, and a
very small number expressed some opposition.
95. Some respondents argued generally that common law/statutory rights in this
category should be codified or that some overarching rights should be
included.
66
67
Discussion Paper Response, para 5. Discussion Paper Response, p. 2. 36
96. Respondents who opposed the inclusion of rights in respect of criminal and
civil justice argued that these rights were already adequately enshrined in the
common law and certain statutes. An example of this line of argument was
given by the Faculty of Advocates who stated that:
“we do not consider that the issues raised are at the level of
fundamental rights. There are existing common law (and statutory)
protections designed to secure Art 5 rights, and further
particularisation of those along the lines suggested may be apt to
create a disproportionate volume of additional, and frequently
unmeritorious, litigation.”68
Minority/Vulnerable Group Rights (not including Children’s Rights and Rights
for Victims)
97. Approximately 30 respondents urged that a UK Bill of Rights should contain
additional rights for other minorities and vulnerable groups. In general they
reasoned that certain groups, such as women, the elderly, people with
disabilities, and ethnic minorities, were not currently sufficiently protected. For
example, the Royal Association for Disability Rights argued in favour of
including disability rights on the basis that:
“disabled people in the UK experience human rights violations on a
daily basis. Countless disabled people are not confident to stay in
their own home or to go out without fear for their safety and
security. Many disabled people are subject to actions and decisions
that undermine their dignity in their daily lives.”69
98. Generally these respondents argued that a UK Bill of Rights could provide
better protection for these groups if it incorporated UK obligations under
international treaties such as the UN Principles for Older Persons or the UN
Convention on the Elimination of Discrimination Against Women.
A Right to Trial by Jury
99. Approximately 25 respondents advocated the inclusion of a right to trial by
jury, whilst a very small number expressed opposition.
100. Those in favour cited the longstanding existence of the common law right to
trial by jury in England and Wales and the importance that the right had in
relation to the fairness and openness of criminal proceedings.
101. Those opposed thought that existing common law and statutory provisions
were sufficient. Others, such as the Faculty of Advocates, pointed to the
68
69
Consultation Paper Response, para 16. Discussion Paper Response, p. 2. 37
differences in the use of juries between the different legal jurisdictions in the
UK:
“the Commission will be aware that concern about the right to trial
by jury is an English peculiarity. The Faculty are not aware of any
complaints in Scotland by persons or groups who seek this right.
We do not consider this a fundamental right, and in our view trial by
jury does not have the historical purchase either as a matter of legal
70
theory or political discourse in Scotland as it has in England.”
102. Some respondents (including both the advocates and the opponents of a right
to trial by jury) expressed views concerning whether there should be
exceptions to the right in certain cases (e.g. “in serious cases” or “in complex
fraud cases”).
Rights for Victims
103. Approximately 25 respondents advocated the inclusion of rights for victims,
whilst some 15 opposed the inclusion of such a right.
104. Those in favour generally thought that the current human rights system
provided too much protection for criminals and that the rights of victims were
being ignored. For example, one respondent wrote:
“the existing legislation takes insufficient account of the rights of
others, e.g. in considering the rights of a criminal no account is paid
to the rights of his victims.”71
105. Others mentioned specific rights, such as the right to have any crime
investigated by the state, or a right to emotional support, and argued in favour
of these.
106. There were a number of reasons expressed for opposing such rights. Some,
such as the University of East London, expressed concern that the inclusion
of such rights could be based on misconceptions about current rights
protections:
“we express some reservations at the suggestion (at paragraph 44)
that there should be specific provision for the rights of victims of
crime in a UK Bill of Rights. There is undoubtedly a perception that
there is an imbalance in current rights protections towards
offenders rather than their victims amongst those who criticize the
Human Rights Act as a criminal’s charter. It is important that
decisions as to the creation of additional rights are not made on the
basis of such false perceptions, and where necessary these
70
71
Consultation Paper Response, p. 5.
Richard Frost, Discussion Paper Response, p. 1.
38
concerns must be addressed through education and declaratory
statements that do not misrepresent the inclusion of victims of
crime within current human rights protections.”72
107. Others highlighted jurisdictional differences in this area and a few believed
that specific legislation was a better medium through which to address the
rights of victims.
A Right to Administrative Justice
108. Approximately 25 respondents advocated the inclusion of a right to
administrative justice, whilst approximately 10 were opposed.
109. Those in favour generally argued that Article 6 of the Convention did not
provide sufficient protection, particularly in respect of administrative
proceedings. Others thought that the current complex system would be aided
by a general right and others, like the Parliamentary and Health Service
Ombudsman, thought that a right to administrative justice would be:
“an important means of enhancing transparency and accountability
and therefore of increasing public confidence in standards of public
administration.”73
110. The majority of those opposing the inclusion of such rights did so because
they thought that the current common law system and deep-rooted
constitutional values functioned well and that a general right was unnecessary
or could detract from this.
111. A variety of ideas were expressed concerning the nature and content of such
a right. Ideas included rights to equal treatment, written reasons and
procedural fairness. A few respondents suggested basing a right to
administrative justice on the text of Section 33 of the South African
Constitution or Article 41 of the EU Charter of Fundamental Rights.
Environmental Rights
112. Approximately 20 respondents advocated the inclusion of environmental
rights, approximately 10 were opposed, and a further 10 or so did not express
a clear view.
113. Only a small number of respondents provided their reasoning, but those who
did tended to cite the UK’s obligations under the Aarhus Convention and other
international instruments; the need to follow the example of the growing
number of other countries that had already recognised some form of
environmental rights; and the need to address effectively urgent
environmental issues.
72
73
Consultation Paper Response, p. 4. Consultation Paper Response, p. 1. 39
114. Those opposed to the inclusion of these rights made similar arguments to
those against socio-economic rights discussed above.
International Instruments
Number of respondents advocating the incorporation of
specific international instruments
Respondents Advocating
45
30
15
0
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International Instrument
115. As noted above, approximately 100 respondents argued in favour of
incorporation of the UK’s obligations under certain international instruments,
meaning that they wanted these obligations to be made enforceable under
domestic law. Some of these respondents, such as the Irish Traveller
Movement in Britain, did not in fact support a UK Bill of Rights and preferred
to see the UK’s international obligations incorporated through other means:
“ITMB believe that whilst UK human rights can be strengthened to
incorporate international conventions and covenants, for the
purposes of this consultation any recommendations should not be
interpreted as justification for replacing the HRA with a BOR.”74
116. The most regularly cited instruments in this context were the UN Convention
on the Rights of the Child (by approximately 40 respondents); ECHR protocols
which the UK had not ratified, such as Protocol 12 (approximately 30
respondents); and the International Covenant on Social, Economic and
Cultural Rights (around 20 respondents).
74
Consultation Paper Response, p. 5. 40
Balancing certain rights 117. In our Consultation Paper, we asked whether a UK Bill of Rights should seek
to give guidance to our courts on the balance to be struck between qualified
and competing Convention rights.
118. Qualified rights are rights that the state can lawfully interfere with in certain
circumstances relating to national security, public safety, the prevention of
crime or the protection of the rights of others. Convention rights which are
qualified in this way include the right to respect for a private and family life
(Article 8), the right to freedom of thought, conscience and religion (Article 9),
the right to freedom of expression (Article 10), the right to freedom of
assembly and association (Article 11) and the right against discrimination in
the application of Convention rights (Article 14).
119. Where an individual alleges that one of these rights has been interfered with,
the court has to find the balance between the individual’s rights and any
qualifying considerations such as national security and public safety as listed
above. In addition, courts are often called upon to balance competing rights,
such as one person’s right to privacy under Article 8 and the right to freedom
of expression under Article 10. In that respect, the Human Rights Act contains
a direction to the courts (Section 12) about how to strike that balance. It
similarly contains a direction to the courts (Section 13) about considering the
importance of freedom of thought, conscience and religion when considering
the exercise of other rights.
120. The balance that is or should be struck when rights conflict or when wider
interests are weighed against individual rights is the subject of much debate,
particularly as to whether it is more appropriate for courts or for elected
legislatures to find the appropriate balance.
121. Against that background, in our Consultation Paper we asked the following
question:
Question 8: Should any UK Bill of Rights seek to give guidance
to our courts on the balance to be struck between qualified
and competing Convention rights? If so, in what way?
122. Approximately 100 respondents addressed this question. Some two thirds
were opposed to any UK Bill of Rights containing guidance for the courts
concerning the balance to be struck between qualified and competing rights;
around a quarter were in favour of such guidance; and the remainder were
either equivocal or unclear.
41
Views opposed to giving guidance
123. The majority opposing the suggestion of guidance in a UK Bill of Rights did so
generally for one of three reasons.
124. About half urged that judges were better equipped to deal with these issues
than legislatures because cases of competing rights involved a delicate
balancing act that was better carried out by the courts in individual cases. For
example, the British Association of Social Workers said:
“[giving guidance] will be very difficult as each case of competing
human rights is individual and is best decided by the judge or jury
who hear all the arguments.”75
125. Other respondents stated that there was no problem that needed to be fixed
and/or that the judiciary needed to remain independent of the legislature and
therefore should not be subject to guidance. For example, Mind said:
“we believe that guidance beyond that which is already contained in
the HRA would infringe the principle of the separation of powers
under which judges interpret the law, as made by parliament.”76
126. The Irish Traveller Movement in Britain said:
“ITMB believe that the Human Rights Act (HRA) already strikes an
appropriate balance between qualified and competing rights, based
on the principle of proportionality.”77
127. A small number of respondents argued that such guidance should be given to
the courts but that this should not be done in a UK Bill of Rights. For example,
Liberty wrote:
“Liberty firmly believes that a constitutional document expressing a
small number of core fundamental freedoms of universal application
is not the place to provide detailed prescription about the
application of individual rights in specific areas of law or policy.
Statements of constitutional import make sense as a framework
expressing the values and aspirations of a people, not as a detailed
code designed to deal with the complex operation of rights and
freedoms within a modern democratic state.”78
75
Consultation Paper Response, p. 2. Consultation Paper Response, p. 6. 77
Consultation Paper Response, p. 4. 78
Consultation Paper Response, pp. 13‐14. 76
42
Views in favour of giving guidance
128. The main reason cited by those in favour of a UK Bill of Rights containing
guidance on the balancing of qualified and competing rights was the need to
increase, or rebalance, the protection of specific rights. The rights mentioned
included freedom of religion,79 as well as the balance between Article 8 and
Article 10.80 For example:
“a Bill should give more guidance to the courts on the question of
qualified and competing Convention rights than there is currently in
S.12 of the Act. If the Bill is additional to rather than replacing the
Act, then the guidance needs to be more detailed with more
reference to case law.”81
“Unfortunately it has become increasingly clear that the courts are
failing to balance competing Convention rights and religious liberty
is being eroded as a result. Guidance to our courts would therefore
be welcomed.”82
129. The Society of Editors said that:
“one of our key concerns is that any Bill ensures that adequate
guidance is given to courts upon striking a balance between often
conflicting rights. More often than not article 8’s protection of a right
to personal privacy is seen to come into increasing conflict with a
freedom of expression under article 10. As a result of this we feel
strongly that any Bill should incorporate Section 12 of the Human
Rights Act in specific protection of provisions for public interest
defences…The Society would further endorse specific protection for
freedom of the media in addition to the wider protection for Article
10’s freedom of expression.”83
130. A small number of respondents argued that guidance would be helpful in
some other areas where there is currently a perceived lack of legal certainty,
for example in defining the parameters of ‘inhuman and degrading treatment’
for the purposes of Article 3.84
79
Christian Concern and The Christian Legal Centre, Consultation Paper Response, pp. 6‐7.
Society of Editors, Consultation Paper Response, pp. 1‐2.
81
Sylvie Montgomery, Consultation Paper Response, p. 1.
82
Christian Concern and The Christian Legal Centre, Consultation Paper Response, pp. 6‐7.
83
Consultation Paper Response, pp. 1‐2.
84
Older People’s Commissioner for Wales, Consultation Paper Response, para. 8.1.
80
43
The duty on public authorities 131. Under section 6 of the Human Rights Act 1998 it is unlawful for a ‘public
authority’ to act in a way which is incompatible with a Convention right. The
term ‘public authority’ includes Ministers, Government departments, local
authorities, statutory bodies and courts as well as some private bodies which
exercise ‘public functions’ on behalf of the state.
132. Following a House of Lords decision85 that excluded from the scope of this
duty private companies that provided residential care under contracts with a
local authority, the Government brought forward legislation that clarified the
scope of the Act in respect of certain care services.86 Despite this move, many
believe that there needs to be greater certainty as to the range of bodies
covered by such a duty, particularly as more public services are outsourced to
private bodies. Others question such a need and argue that the existing
definition is sufficiently flexible.
133. In our Consultation Paper, we asked whether there was a need to amend the
definition of ‘public authority’, assuming any UK Bill of Rights contained a duty
on public authorities similar to that of section 6 of the Human Rights Act.
Question 9: Presuming any UK Bill of Rights contained a duty
on public authorities similar to that in section 6 of the Human
Rights Act 1998, is there a need to amend the definition of
‘public authority’? If so, how?
134. About 100 respondents answered this question, and about one third of
respondents to our two consultations discussed section 6 more generally.
Approximately half of the 100 respondents who expressed a view on the need
to amend the definition of public authority advocated amending the definition
in any UK Bill of Rights; just under half opposed such a move; and the
remainder were either equivocal or unclear. The vast majority of those
discussing section 6 generally stressed its importance and advocated its
continued inclusion in any UK Bill of Rights.
Views in favour of amending the definition of ‘public
authority’
135. The predominant reason cited for amending the definition, which was given by
the majority of those in favour, was that the scope was not currently wide
enough to include all the organisations that should be subject to this duty, in
particular, private bodies performing public functions. For example, Age UK
said:
85
86
YL v Birmingham City Council and Others [2007] UKHL 27. Health and Social Care Act 2008, s. 145. 44
“[we have] long argued that the definition of public authority for the
purposes of the HRA should be extended to include any
organisation providing services paid for through public funds. Many
older people are reliant on health and social care services which
are increasingly provided by privately-run bodies. At the moment,
only those older people whose residential care costs in private care
homes are met by the local authority are protected by the HRA.
Those people who fund their own placement in a care home or
whose placement is funded by insurance payments or annuities
remain outside its protection.”87
136. A small number of respondents urged that the definition should be changed to
simply clarify the law as to whether or not a body is a ‘public authority’ for the
purposes of section 6.
137. Some of those who expressed a need to amend the definition also noted that
it could (or should) be done through separate legislation or other means,
rather than through a UK Bill of Rights. For example, the National LGB&T
Partnership believed that:
“the definition of public authority for the purposes of the HRA could
and should be extended, by separate legislation rather than a UK
Bill of Rights, to clearly include any organisation providing services
paid for through public funds.”88
Views opposed to amending the definition of ‘public authority’
138. Something under half of the respondents who expressed views on this issue
argued against any amendment, largely on the basis that the definition worked
well or at least that precise changes could be made through the normal
legislative process. For example, the Faculty of Advocates in Scotland said:
“we are not satisfied that there is any need to amend the definition.
While recognising that certainty is important in that it should be
clear what falls under the definition of a public authority, we would
suggest that the decision in YL v Birmingham City Council and
Others and the legislative response to it demonstrates that the
current system as a whole works well.”89
139. A small number of respondents also said that changing the definition would
lead to too much rigidity, and that it was desirable to retain some measure of
flexibility in the definition. For example, the Senators of the College of Justice
said:
87
Consultation Paper Response, para. 10.1. Consultation Paper Response, p. 5. 89
Consultation Paper Response, p. 7. 88
45
“it would be difficult to devise a watertight statutory definition of a
‘public authority’. It seems to us that the approach taken in section
6 of the Human Rights Act is sufficiently flexible to allow the courts
to decide, on a case by case basis, whether any particular body
falls within the category of a public authority depending on the
circumstances of the case. We consider that this approach has
worked without undue difficulty in practice.”90
Views about section 6 generally
140. About 300 respondents argued that section 6 had played a critical and
positive role in protecting human rights in the UK and that it was critical that it
be retained if a UK Bill of Rights were to be enacted.
141. Many of these respondents stated that the section 6 duty had been central to
the practical implementation of the human rights regime. For example, the
British Institute of Human Rights said:
“the section 6 duty is vital to ensuring that human rights are not
simply the preserve of lawyers: it ensures that human rights
happen, taking them off the statute books and outside the courts
and into everyday life. Using this duty the HRA has benefitted
countless individuals and helped the public sector deliver services
which are fair, responsible and meet all people’s basic needs,
especially the most vulnerable members of our society.”91
142. Action on Hearing Loss wrote to us in similar terms:
“the ‘section 6 duty’ is vital to ensuring the obligations and liberties
in the ECHR become part of people’s everyday lives. It allows
organisations and individuals to argue for fair public services which
meet the needs of everybody. Therefore any additional Bill of
Rights must retain the public duty.”92
143. Many respondents drew on personal experiences to illustrate their strength of
support for the duty imposed on local authorities by the Human Rights Act:
“In a very real way I have found that local authorities, government
officers, and public bodies, while not constrained or limited in the
exercise of their powers, now take a very proper and considerate
approach to matters where people’s rights could be infringed. This
90
Consultation Paper Response, p. 3. Discussion Paper Response, pp. 1‐2. 92
Discussion Paper Response, p. 2. 91
46
is particularly evident in the areas where I work, namely housing
and planning law.”93
144. Some respondents asserted that section 6 had had positive pre-emptive
impacts by causing public authorities to consider human rights impacts in
advance. Amnesty International wrote:
“the obligation contained in Section 6…has helped to transform
many public services in the UK. This has likely resulted in less
litigation as public bodies have learnt to take human rights
considerations into account at all stages of their decision-making,
thereby making it less likely that they will take actions which violate
individual rights.”94
145. However, a small number of respondents believed that such anticipatory
compliance had caused public authorities to incur significant cost and effort
often without knowing whether a court would even have required them to act
in that way. For example, the Society of Conservative Lawyers wrote:
“the HRA has caused public bodies to go to elaborate lengths and
incur enormous costs in order to try and ensure that all activities
and policies are ‘HRA compliant’ – a goal which is particularly
elusive since it is often difficult to predict how the courts will
interpret the Act.”95
93
Nicholas Ostrowski, Consultation Paper Response, additional text on a postcard sent to the Commission as part of
a campaign organised by the British Institute of Human Rights.
94
Discussion Paper Response, p. 4.
95
Discussion Paper Response, p. 11.
47
The role of responsibilities in any UK Bill of Rights Introduction
146. It has been argued by some that there should be inclusion of, or at least
reference to, the concept of responsibilities in any UK Bill of Rights. The issue
of whether there should be a role for responsibilities as a separate concept
alongside rights has been frequently discussed in recent years. The previous
Government consulted on the issue as part of a wider constitutional reform
consultation process without arriving at firm conclusions. Those arguing for
this position note that concepts of duty and responsibility figure in many
aspects of our lives, such as our duty to obey the law and our responsibilities
to our children. They also note that notions of responsibilities figure in current
and historic bills of rights in some other countries, though these are generally
in the form of aspirational or declaratory provisions. Those opposing any role
for responsibilities frequently premise their arguments on the existing roles of
responsibilities and often note that most rights under the Convention and the
Human Rights Act involve a concomitant responsibility to respect the rights of
others. Others are also wary of responsibilities detracting from the universal
and fundamental nature of human rights. Against that background, in our
Consultation Paper, we asked:
Question 10: Should there be a role for responsibilities in any
UK Bill of Rights? If so, in which of the ways set out above
might it be included?
147. Approximately 140 respondents to our consultation papers discussed this
issue. Around 80 were opposed to any role – or to any greater role than at
present – for responsibilities in a UK Bill of Rights; around a quarter
advocated a greater role than at present; and the remainder did not come to
any clear view.
148. Many were opposed on the basis that responsibilities were already implicit in
rights provisions and in the criminal law i.e. that many rights instruments and
provisions expressly require a balancing of individual rights with wider or
collective rights and considerations, and the criminal law already recognised
responsibilities by prohibiting and punishing behaviour that was harmful to
others. We discuss these responses in more detail below.
149. Many were also opposed to the inclusion of a concept of responsibilities if
rights were to be made contingent on the fulfilment of responsibilities. We also
discuss these responses below.
48
150. Others discussed the challenges of defining and enforcing a concept of
responsibilities in a Bill of Rights. For example, the University of Derby School
of Law and Criminology, the University of Derby Multicultural Centre and
Amnesty International Local Groups in Derbyshire stated:
“from the practical point of view, we simply cannot envisage a
settled outcome from the enormous legal minefield of deciding
which rights should be lost for which irresponsibilities, let alone
taking degrees of irresponsibility into account.”96
151. Another common argument, put forward for example by the Law Society of
Scotland, was that individuals’ responsibilities, whilst important, should not be
defined in a Bill of Rights:
“the Council [of the Law Society of Scotland] 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.”97
152. On the other hand those who supported or were sympathetic towards some
form of role for responsibilities believed that it was necessary for the current
rights culture to take into account the need to promote civic responsibility. This
argument was highlighted by the Wilberforce Society who, when discussing
the possibility of including individual responsibility in a UK Bill of Rights, noted
that this approach:
“enriches and promotes a sense of civic responsibility by defining a
set of value-laden expectations, or simply by asserting that, in order
to claim one’s own human rights, a person must respect those of
others.”98
153. Canon Michael Hodge wrote that:
“as a believing and practising Christian, I am concerned about
‘Rights without Responsibilities’ at least where a normal adult is
concerned. The sight of people demanding ‘Their Rights’, without
any apparent acknowledgement that those carry with them ‘Their
Responsibilities’ worries me, to put it at its least. And yet I have real
doubts as to how Responsibilities can have a place in law….What I
should like to see is a kind of Highway Code. Certain rights are
enshrined in law, but where the consequential responsibilities are
spelt out in a Code of Good Practice.”99
96
Consultation Paper Response, p. 3. Discussion Paper Response, p. 4. 98
Discussion Paper Response, p. 1. 99
Consultation Paper Response, p. 1. 97
49
154. Many of the arguments for and against the inclusion of a concept of
responsibilities were anchored in a presumption that responsibilities would
figure in a UK Bill of Rights in a specific way. We discuss these below.
(i) Making rights contingent on responsibilities
155. Many of the 140 respondents expressed views on the issue of whether the
exercise of rights could ever be contingent on the fulfilment of responsibilities.
Of those, a substantial majority were strongly opposed to such a linkage.
156. Some opponents, such as the mental health charity Mind, argued that such a
linkage would be dangerous and that increased public education was needed
in order to address what they saw as misconceptions about human rights that
were fuelling support for such a linkage:
“politicians and the media often talk about rights and
responsibilities, with the clear implication that the protection from
the HRA should be limited if people breach certain responsibilities
or social norms… we strongly advocate the use of education and
awareness-raising to address public misunderstanding and
misperceptions of human rights… We are deeply concerned that
the way in which ‘responsibilities’ are being framed in the current
debates has the real potential to further embed misunderstanding
about the relationship between human rights and
responsibilities.”100
157. Many opponents argued that making rights contingent on responsibilities
would breach the ‘universality principle’ of human rights and would be an
affront to the fundamental nature of such rights. For example, the Scottish
Human Rights Commission said:
“the underlying philosophy of human rights is that every human
being is entitled to fundamental rights simply because they are
human. They are intrinsic, universal and fundamental for individual
and societal improvement. Human rights should not be found
contingent on performing responsibilities.”101
158. Those in favour of a linkage tended to state that rights needed to be earned or
that some people were undeserving. For example:
“there must be recognition that ‘rights’ are delivered by balancing
obligations, and in some cases need to be ‘earned’. There must be
an end to a ‘take, take’ mentality.”102
100
Consultation Paper Response, p. 7. Consultation Paper Response, p. 8. 102
Nic Doczi, Consultation Paper Response, p. 2. 101
50
(ii) The existing role for responsibilities
159. Around half of the 140 respondents argued that responsibilities already played
a role in the UK legal system, generally in three main ways.
160. Some argued that responsibilities were already implicit in the concept of
human rights. The Irish Congress of Trade Unions argued that because one
has rights, one has the implied responsibility to respect the rights of others:
“Congress has always believed that the promotion of rights
encourages a sense of responsibility to defend the rights of all,
without exception.”103
161. Others held that responsibilities were already implicit in the European
Convention on Human Rights/Human Rights Act by virtue of the balancing
that the courts are required to undertake when interpreting the many qualified
rights. For example, the charity René Cassin said:
“the judgments of the European Court of Human Rights reflect this
on-going qualification of the rights contained in the ECHR, and the
weighing of these rights against the general good of society, such
as public health or national security. This is responsibilities by
another name.”104
162. Others argued that responsibilities were already embedded in our legal
system through the fact that individuals had obligations under the law, and if
they broke these obligations, for example by committing a crime, they would
be punished under the law. For example, Amnesty International said:
“the majority of the law of the land sets out the duties and
responsibilities of individuals. Most notably, criminal law and law
relating to tort or delict set out the harm that individuals must not do
to each other or to the state.”105
163. Those who made these arguments were generally opposed to the inclusion of
a concept of responsibilities in a Bill of Rights. For example, the Discrimination
Law Association said:
“there is no need to include responsibilities since responsibilities
are implicit within human rights and embedded within domestic and
international human rights frameworks.”106
164. However, a small number of respondents, such as Dr Austen Morgan,
believed conversely either that these implicit responsibilities needed to be
103
Consultation Paper Response, p. 5. Discussion Paper Response, p. 7. 105
Discussion Paper Response, p. 9. 106
Consultation Paper Response, p. 10. 104
51
made explicit, or that any UK Bill of Rights should include reference to the
concept of responsibility in a different way:
“human rights have always implied responsibilities. The principal, or
only, responsibility should be support for the rule of law, and this
could be made express.”107
(iii) Alternative roles for responsibilities
165. Some respondents suggested that responsibilities could figure in a preamble
and play a general balancing role, at least as an alternative to other
possibilities. For example, the Equality and Human Rights Commission said:
“it is preferable that any statement of responsibilities should be
either in a preamble or related document rather than in the
substantive provisions. This would serve to indicate their symbolic
value, as well as ensure that the provisions are not directly
enforceable against individuals.”108
166. One or two respondents were opposed to including responsibilities in this way
on the grounds that it would have no practical effect and would be misleading.
For example, Robert Broadhurst said:
“only including declaratory responsibilities would be counter­
productive, as it would appear to emphasise that rights are
privileged over responsibilities, whereas in fact the two are co­
existent.”109
167. A small number of respondents advocated a role for discretionary damages in
cases where a human rights complainant had failed to comply with his or her
basic responsibilities. They argued that this would in no way alter the state’s
primary obligations to ensure the protection of the human rights of individuals,
but would mean that the courts, when awarding damages in human rights
cases, would have the discretion to take into account the extent to which an
individual had complied with his or her basic responsibilities. Such a
mechanism was endorsed by Dr Austen Morgan:
“responsibilities could sound in human rights damages, as they did
in the Gibraltar IRA case: McCann v UK (1995) 21 EHRR 97.”110
168. Alternative suggestions for means of incorporating responsibilities in any UK
Bill of Rights included: “securing the observance of fundamental
107
Discussion Paper Response, p. 31. Consultation Paper Response, p. 30. 109
Consultation Paper Response, p. 3. 110
Discussion Paper Response, p. 31. 108
52
responsibilities” as a qualification to rights such as articles 8-11;111 creating a
code of good practice;112 and making rights more horizontally effective in order
to make responsibilities more apparent.113
111
Robert Broadhurst, Consultation Paper Response, p. 3‐4. Canon Michael Hodge, Consultation Paper Response, p. 1. 113
Glen Woodroffe, Discussion Paper Response, p. 1. 112
53
The duty to take Strasbourg case law “into account” 169. Section 2 of the Human Rights Act 1998 requires our courts to ‘take into
account’ relevant judgments of the European Court of Human Rights when
deciding cases involving Convention rights.
170. Some commentators have expressed concern that this duty has been
interpreted by the courts in a way that has caused them to apply Strasbourg
case law too rigidly, without sufficient consideration of the UK’s legal system.
Other commentators have said that even if this were the case in the past, UK
courts are increasingly departing from Strasbourg case law where they
consider this to be justified and appropriate.
171. It has been suggested by some that any UK Bill of Rights could amend the
duty in section 2 to provide different and/or clearer direction to UK courts as to
how to interpret and apply Strasbourg case law. Others have suggested that
the section 2 duty should be modified to direct courts to take into account also
relevant case law from other countries, in particular from other common law
countries.
172. We requested views from respondents in the Consultation Paper on whether
they thought the section 2 duty should be modified and if so, how and with
what aim.
Question 11: Should the duty on courts to take relevant
Strasbourg case law ‘into account’ be maintained or modified?
If modified, how and with what aim?
173. Approximately 120 respondents answered this question, the majority of whom
were respondents to the Consultation Paper. 114
174. Just over three quarters of these respondents felt that section 2 should be
maintained in its present form. Under one fifth of the respondents discussing
section 2 wanted to see the provision modified or, for a very small number of
respondents, removed. Around one tenth of the respondents were equivocal
or unclear on this issue.
Keep section 2 as it is
175. Just over three quarters of the respondents who expressed views on this
issue argued that section 2 should be maintained in its current form. While a
substantial number of these respondents provided no specific reason for this
114
Although we did not pose this question in the Discussion Paper, we reviewed all Discussion Paper responses to identify those who discussed the issue. 54
view, a number of respondents argued that the section 2 duty was working
well in its current form even if, for some, it had not necessarily been construed
correctly by UK courts in the past. For example, JUSTICE said to us that:
“there has been a longstanding debate on whether section 2
requires our judges to be bound by the jurisprudence of the
European Court of Human Rights. Although there is a clear line of
case law which suggests our judges consider themselves so bound,
there is nothing in the Human Rights Act 1998 which requires this
approach… The judges themselves appear to be moving away from
this unduly restrictive approach… Rightly we consider that the
language in the Human Rights Act 1998 strikes an appropriate
balance between respect for the boundaries of the Convention and
encouragement of the development of independent domestic rights
jurisprudence.”115
176. Similarly, the Faculty of Advocates in Scotland said:
“We believe the approach the Supreme Court currently adopts in
this respect is correct.”116
177. At the same time, a number of respondents stressed the importance of
section 2, either in ensuring consistency in the application of Convention
jurisprudence across signatory countries including the UK or as a critical part
of the protections offered by the Human Rights Act and of the UK’s
compliance with its Convention obligations. For example:
“the law as it currently stands is sufficient and should not be
changed. It is vital that UK courts can take into account rulings of
the European Court, to ensure consistency in the understanding
and application of human rights in countries signed up to the
ECHR”;117
“any future Bill of Rights should be designed to enhance, not to
weaken, the protections and mechanisms already in place in this
legislation. In particular, any UK Bill of Rights should either retain,
or strengthen, the obligations of this Act under sections 2
(interpretation of Convention rights), 3 (interpretation of legislation),
6 (acts of public authorities) and 19 (statements of compatibility)
and the right to a remedy under section 7”;118
“[Equal Rights Trust] believes that the powers granted to the UK
courts under sections 2, 3 and 4 of the Act are critical to ensuring
115
Consultation Paper Response, p. 14.
Consultation Paper Response, p. 8.
117
Irish Traveller Movement in Britain, Consultation Paper Response, pp. 6‐7.
118
Children’s Commissioner for England, Discussion Paper Response, p. 2.
116
55
that the UK effectively meets its obligations under Article 13 of the
Convention.”119
178. Some respondents also argued that section 2 should be maintained in order
to ensure legal certainty. For example, the National AIDS Trust said that “any
modification could cause unnecessary and costly legal confusion.”120
179. A small number of respondents stated that the wording of section 2 was
adequate, but felt that it could be helpful to introduce some form of guidance
to clarify the interpretation that UK judges should give to section 2. For
example, Immigration Judge Jonathan Lewis advocated “statutory
clarification” of the meaning that had “always (been) intended”, namely that
judges would be under a duty to “bear in mind” Strasbourg jurisprudence, and
“no more.”121 Other terms used to describe such proposed interpretative
guidance included “Practice Direction”122 and “Explanatory Note”,123 though no
precise drafting suggestions were offered.
Modify or remove section 2
180. Fewer than one fifth of the respondents discussing section 2 believed that the
provision should be modified or, in the case of a small number of respondents,
removed. Some provided no specific reason for these views and/or no specific
suggestions as to how section 2 should be modified.
181. Of those who did provide reasons or suggestions, a small number suggested
that section 2 should be modified to include a reference to other case law,
such as case law from other common law countries,124 or international human
rights bodies and courts,125 or other international human rights obligations.126
Some suggested authorising a more generous interpretation of the
Convention than Strasbourg Court jurisprudence, or making Strasbourg Court
jurisprudence binding on domestic courts. For example, Professor Robert
Wintemute of King’s College London suggested that:
“the HRA should be amended so as to overrule the ‘no more’ part of
the late Lord Bingham's ‘Ullah principle’, and expressly authorise a
more generous British interpretation of the Convention rights… eg:
‘s. 2(4) For the avoidance of doubt, a court or tribunal may
find an incompatibility with a Convention right in a particular
situation, for the purposes of this Act and other United
119
Discussion Paper Response, p. 3.
Consultation Paper Response, p. 4.
121
Consultation Paper Response, p. 5.
122
University of Cambridge Centre for Public Law, Discussion Paper Response, p. 7.
123
John Kissane, Consultation Paper Response, p. 1.
124
Dominic Raab MP, Discussion Paper Response, p. 36.
125
Amnesty International UK, Discussion Paper Response, p. 14 and Consultation Paper Response, p. 8.
126
Sussex University Centre for Responsibilities, Rights and the Law, Consultation Paper Response, p. 8.
120
56
Kingdom law, even though the European Court or
Commission of Human Rights has not yet done so, or would
not be likely to do so, for the purposes of the European
Convention on Human Rights and its application to all
member states of the Council of Europe.’”127
182. Wild Law UK stated that:
“s. 2 of the Human Rights Act should be amended to dictate that
the jurisprudence of the ECtHR is binding on the UK domestic
courts.” 128
183. A small number of respondents related their views on modification or removal
of section 2 to an argument that the UK should withdraw from the European
Convention on Human Rights. For example, the UK Independence Party said:
“We believe the UK should leave the Convention system. The most
we would wish to see is a power (rather than a requirement) to take
account of ECHR jurisprudence.”129
127
Discussion Paper Response.
Wild Law UK, Discussion Paper Response, p. 3 and Consultation Paper Response, p. 11.
129
Consultation Paper Response, p. 5.
128
57
The balance between courts and Parliament 184. Under section 3 of the Human Rights Act, courts are required to interpret
legislation in a way that is compatible with Convention rights. If a court
determines that a statute of the United Kingdom Parliament cannot be read
and given effect in a way that is compatible with a Convention right, under
section 4 the court can issue a ‘declaration of incompatibility’. Even if such a
declaration is made, however, the legislation remains in force and it is up to
Parliament to decide whether and, if so, how the incompatibility should be
addressed. Unlike the position under the European Communities Act and in
many other European and Commonwealth countries the courts cannot declare
the statutes of the UK Parliament invalid and unenforceable.130 The Human
Rights Act therefore leaves it ultimately to Parliament to decide whether to
amend the law in question.
185. In the view of many commentators the Human Rights Act in this way strikes a
sophisticated and sensible balance between on the one hand the sovereignty
of the UK Parliament which is democratically accountable and represents the
people and, on the other hand, the power and duty of the courts to declare
and enforce the law and to provide effective remedies in accordance with the
will of Parliament.
186. Some, however, have argued that this balance should be altered by giving
courts the power to declare provisions of UK statutes invalid and
unenforceable where it is found that they cannot be read compatibly with
Convention rights. Others argue that the present position should be retained.
Still others argue that the balance struck by the Human Rights Act is not the
critical issue because if the Government and Parliament choose to do nothing
following a declaration of incompatibility, individuals can still seek redress
from the Strasbourg court for breach of their human rights. If the Strasbourg
court agrees, the Government and Parliament are then bound by Article 46 of
the Convention to comply with the Strasbourg Court’s judgment.
187. To those who regard the Convention system as a threat to the doctrine of
Parliamentary sovereignty or supremacy, this is not satisfactory. They criticise
the fact that Parliamentary sovereignty is in their view undermined by the
mechanism of a declaration of incompatibility, since Parliament is effectively
bound by the judgments of the Strasbourg court. Others counter that this is in
the nature of the UK’s obligations under the many international treaties which
it has ratified in numerous areas of policy-making and that the UK made the
decisions in ratifying these treaties that it wished to comply with the
obligations found in them. Against that background, we asked for views on the
following question:
130
It is also unlike the situation under the devolution statutes. Where a provision of a statute passed by a devolved legislature is found to be incompatible with the Convention, the court must declare it to be of no force or effect. 58
Question 12: Should any UK Bill of Rights seek to change the
balance currently set out under the Human Rights Act between
the courts and Parliament?
188. Approximately 130 respondents to our consultations expressed views on this
issue, either directly in response to the question in our Consultation Paper, or
as part of their Discussion Paper response.
189. Over half of these respondents favoured maintaining the status quo. Around
one fifth of respondents favoured changing the balance in favour of the courts,
while around one tenth thought that the balance should be changed in favour
of Parliament. One tenth of respondents were equivocal or unclear on this
issue.
Maintain the status quo
190. Over half of respondents favoured maintaining the status quo. In general
these respondents believed the current system struck a sensible balance
between, on the one hand, the sovereignty of the democratically accountable
UK Parliament and, on the other hand, the power and duty of the courts to
enforce the law and to provide effective remedies in accordance with the will
of Parliament. For example, one individual told us:
“in retrospect, we have worked out a very ‘British’ solution,
pragmatically balancing our modern international and judicial
commitments with the historical doctrine of parliamentary
sovereignty.”131
191. The Law Society of England and Wales also stated:
“declarations of Incompatibility are the best way to adjudicate
human rights while still preserving the tradition of parliamentary
sovereignty.”132
Change the balance
192. A minority of respondents believed the balance should be changed, with most
asserting it should be changed in favour of the courts. For example, The Law
Society of Scotland wrote:
“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
131
132
Maggie Beirne, Consultation Paper Response, p. 4. Discussion Paper Response, p. 9. 59
allow for the judiciary to strike down legislation which was
incompatible with the Bill of Rights for the United Kingdom.”133
193. McEvedys Solicitors and Attorneys told us:
“we believe the Judiciary should be able to strike down an Act of
Parliament as unconstitutional or non-compliant with Human Rights
obligations. Most developed nation states provide this power to the
Judiciary.”134
194. The Solicitors International Human Rights Group said:
“the Declaration of Incompatibility procedure is now outmoded. It
has no doubt been useful in the early stages following incorporation
of the ECHR into UK law, but now our courts should be able to
strike down legislation that is clearly incompatible with the ECHR or
any other international instruments to which we are party.”135
195. Finally, one individual told us:
“I feel rather strongly that there is no point in having a justiciable
process leading to a finding that UK law is incompatible with the
Declaration of Human Rights if the UK governmental system and
parliament can ignore it. Therefore, I believe that the courts should
have the power to declare a statute invalid and unenforceable.”136
196. A small number of respondents believed the balance should be shifted in
favour of Parliament, though few described how and, of those that did, the
suggestion was generally that it was section 3, rather than section 4 that
needed to be changed. For example, Robert Broadhurst, wrote to us that:
“the powers accorded to [judges] under the ECHR and HRA have
led to what is effectively law-making by judges on a major scale.
Such law-making lacks democratic legitimacy… a UK Bill of Rights
should replace the HRA. This should remove the provision of
section 3 HRA; legislation should be given its ordinary meaning.
This would better uphold the democratic will of Parliament when it
enacted legislation, and would improve legal certainty in the UK.”137
133
Consultation Paper Response, p. 5.
Discussion Paper Response, p. 2.
135
Discussion Paper Response.
136
Roger Gibbs, Consultation Paper Response, p. 3.
137
Consultation Paper Response, p. 6.
134
60
The balance between the Strasbourg Court and the elected
bodies of signatory states.
197. A small number of respondents discussed the possibility of changing the
relationship between the Strasbourg Court and the elected bodies of the
signatory states to the European Convention. Some advocated maintaining
the status quo, while others supported changing the balance in favour of the
UK Parliament.
198. Some respondents argued for a greater ‘margin of appreciation’ to be afforded
by the Strasbourg Court. For instance, the Society of Conservative Lawyers
told us:
“there needs to be a new emphasis on the margin of appreciation
given to States in addressing the complex issues which face
modern democratic societies. There will be little point in having a
new British Bill of Rights if disappointed litigants are able to
routinely have a second bite of the cherry under the European
Convention of Human Rights in Strasbourg.”138
199. A small number of respondents suggested the introduction of a mechanism
that would allow the UK to override Strasbourg judgments. Robert Broadhurst
stated:
“the UK could seek an amendment to the ECHR that would allow
Parliament (perhaps the House of Commons specifically, as the
elected Chamber) to overturn judgements of the ECtHR directed at
the UK, where these offended the mainstream British
understanding of human rights.”139
200. Thomas Webber stated:
“the danger of a normative clash between the UK Courts and the
European Court of Human Rights might be corrected by way of a
democratic override. In this conception the UK Parliament may act
to amend the law through a special procedure, similar to that
already enshrined under section 10 of the Human Rights Act
1998.”140
201. On the other hand, a small number of respondents expressed objections to
the idea of ‘democratic override’ proposed in the Chair’s letter regarding
reform of the Strasbourg court.
202. The joint response from the AIRE Centre and others stated:
138
Discussion Paper Response, p. 3. Consultation Paper Response, p. 6. 140
Discussion Paper Response, p. 2. 139
61
“we wish to register our strong objection to any proposal that would
permit a ‘democratic override’ of Court rulings. As an initial matter,
the independence of the European Court, and its capacity to issue
binding judgments that can ensure the observance of the
Convention obligations undertaken by Member States, are
principles fundamental to the European Convention of Human
Rights… Furthermore, such a proposal finds no support in the text
of the European Convention itself; Article 46 makes clear that
Contracting Parties ‘undertake to abide by the final judgment of the
Court in any case to which they are parties.’
Moreover, ‘democratic override’ would imperil the very fabric of the
Convention system itself, built as it is on the vision of a European
continent where rights are protected and guaranteed.”141
203.
Michael Norris stated:
“I would be seriously concerned about any proposals that would
allow decisions of the European Court of Human Rights to go
unenforced or to be overridden, particularly where this decision
would be taken by the Committee of Ministers alone. If any body
were to have this power it ought to be the Parliamentary Assembly
of the Council of Europe. However, I do not believe that any body
should have such a power; the decisions of the Court, whilst not
always popular, must be respected by all.”142
141
142
Discussion Paper Response, p. 4. Discussion Paper Response, p. 2. 62
Should any UK Bill of Rights be entrenched? 204.
Although we did not ask respondents about whether a UK Bill of Rights should
be entrenched, or not, approximately 150 respondents across the two
consultations considered this issue, often as part of their discussion of the
balance between courts and Parliament.
205.
An ‘entrenched’ bill of rights or constitutional instrument is typically one that
cannot be repealed or amended by ordinary statute but rather requires special
procedures or a special majority, such that it has the status of higher or
supreme law.
206.
Of the approximately 150 respondents who discussed this issue, over three
quarters were in favour of an entrenched Bill of Rights generally as part of a
wider written constitution. Around one tenth of these respondents were
opposed to entrenching a Bill of Rights, while around one tenth were
equivocal or unclear on this issue.
207.
In support of entrenching a Bill of Rights, the Family Law Society wrote:
“the entrenchment of a UK Bill of Rights as part of a written
constitution would guarantee that rights could not be rescinded by a
simple vote by future parliaments.”143
208.
The Law Society of Scotland said:
“The [Constitutional Law Sub-committee of the Law Society of
Scotland] 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.
If a Bill of Rights were enacted in the manner suggested e.g. 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.”144
209.
Finally, one individual told us:
“I would not object to a British Bill of Rights replacing the current
HRA if this built on the protections already available under the
143
144
Consultation Paper Response, p. 6. Consultation Paper Response, pp. 5‐ 6. 63
latter. I would also like to see it entrenched, preferably requiring a
supermajority of both Houses in order to amend it.”145
210.
On the other hand, the Society of Conservative Lawyers argued that:
“we do not believe that any new Act should be “entrenched” (if that
is even constitutionally possible). We consider it important that the
principle of Parliamentary sovereignty should be preserved and that
future generations should have the ability to make changes to
human rights legislation to reflect the circumstances of their
time.”146
145
146
Ben Boult, Consultation Paper Response, pp. 6‐ 7. Discussion Paper Response, p. 3. 64
Devolution and a UK Bill of Rights 211. The power to make laws and carry out certain government functions in the UK
is exercised not only by the UK Parliament and Government but also by
legislatures and administrations in Northern Ireland, Scotland and Wales.
These powers were devolved in part to each of those countries by legislation
passed by the UK Parliament: the Northern Ireland Act 1998, the Scotland Act
1998 and the Government of Wales Acts 1998 and 2006, as amended.
212. These statutes, known as ‘devolution settlements’, require that all action taken
by the devolved legislatures and administrations in Northern Ireland, Scotland
and Wales is compatible with the rights contained in the European Convention
on Human Rights, as defined in the Human Rights Act 1998, and ensure that
the devolved legislatures can only pass laws which are compatible with these
Convention rights.
213. In addition to the existence and impact of the devolution settlements, there are
differences across England, Northern Ireland, Scotland and Wales in legal
systems and heritage, and in history and political landscapes.
214. Against that background, the Commission asked in its 2011 Discussion Paper
how any UK Bill of Rights might apply to the UK as a whole including its four
component countries of England, Northern Ireland, Scotland and Wales. In its
2012 Consultation Paper, the Commission asked for views on the extent to
which current constitutional and political circumstances in Northern Ireland,
Scotland, Wales and/or the UK as a whole should be a factor in deciding
whether (i) to maintain existing arrangements on the protection of human
rights in the UK, or (ii) to introduce a UK Bill of Rights in some form. The
Commission also sought views on two possible models for a UK Bill of Rights,
outlined below.
215. In response to both papers, the Commission received a range of views on
issues relating to devolution and a UK Bill of Rights from approximately 280
organisations and individuals in different parts of the UK. The Commission
also received over 1,200 postcard responses as part of a campaign organised
by the Northern Ireland Human Rights Consortium that sought to highlight the
ongoing debate on a Bill of Rights for Northern Ireland and its relationship to
the Commission’s work. While the majority of views on these issues came
from individuals and organisations who identified themselves as coming from,
or representing those in, Northern Ireland, Scotland and Wales, a number of
individuals from England or organisations with a UK-wide remit also
expressed views on issues relating to devolution and a UK Bill of Rights.
216. Overall there was little support for a UK Bill of Rights in Northern Ireland,
Scotland or Wales. Calls for a UK Bill of Rights were generally perceived to be
emanating from England only. For many in Northern Ireland, Scotland and
65
Wales, a UK Bill of Rights was not considered a prominent or pressing issue
on the public agenda. These views were not, however, universally held, with
some in different parts of the UK saying either that a UK Bill of Rights was
necessary or desirable, or that it could have potential benefits depending on
its content. For a summary of views of all respondents – including those in
Northern Ireland, Scotland and Wales – on the question of whether we need
or should have a UK Bill of Rights together with reasons, please see earlier
sections of this summary.
Discussion Paper Question 3: [If you think we need a UK Bill of
Rights] how do you think it should apply to the UK as a whole,
including its four component countries of England, Northern
Ireland, Scotland and Wales?
217. Approximately 200 organisations and individuals who responded to our
Discussion Paper expressed a view on the possible application and extent of
a UK Bill of Rights, although many did so on the basis that they were
equivocal or opposed to the principle of a UK Bill of Rights. Just under half of
these respondents believed that if there were, however, to be an instrument it
should apply in a uniform manner throughout the UK. For example:
“if we were to have such a document, it would be rather shocking
were it not to apply equally to the entirety of the UK. Devolved
government offers enough inequalities between those living on
different sides of our internal borders as it is. A Bill of Rights would,
one assumes, purport to be a rather fundamental statement of
basic (or not so basic) rights. It would be an assertion of universal
rights. Universal rights cannot start or stop at political boundaries
and, while we cannot impose our ideas on the world at large, we
can impose them on the entire country.”147
218. Others expressed the view – in differing levels of detail – that although any UK
instrument should ensure a minimum level of protection there should be scope
for rights to be protected in different ways in different parts of the UK. Many
pointed to examples of how this had already occurred under the devolution
settlements. For example the Welsh Refugee Council stated that:
“we believe that there should be consistency of the basic Human
Rights Framework across the UK. However different devolved
governments have different approaches to Human Rights and this
should be allowed for…As an example…the Children’s Convention
is the cornerstone of the policy framework in Wales and not in
England…We will get to a stage, and some would argue we are
now [at that stage], where there is a different understanding of
147
Dr Rob George, Discussion Paper Response, p. 2.
66
people’s fundamental rights between Westminster and Cardiff and
a Welsh Bill of Rights may be one way to address this.”148
219. Respondents often also commented on whether, and the extent to which, a
UK Bill of Rights might be desirable and/or possible in the light of the
devolution settlements and the particular circumstances – incuding the current
political landscapes – in Northern Ireland, Scotland and Wales.
220. Some respondents were concerned that a UK Government-led initiative to
enact a UK Bill of Rights, particularly if it were undertaken to the exclusion of a
Bill of Rights for Northern Ireland, in parallel to the current debate on
Scotland’s constitutional future and in the wake of the recent increase in
devolved powers in Wales, could have unfavourable constitutional and
political consequences.
221. Views expressed to us from Northern Ireland were often linked or restricted to
opinions on the desirability and/or viability for a separate Bill of Rights for
Northern Ireland and the requirements of the Belfast/Good Friday Agreement.
For example the Northern Ireland Human Rights Consortium said to us:
“provision for a Northern Ireland Bill of Rights was an integral part
of the Northern Ireland peace agreement that is intended to have
the ECHR as its human rights floor, with the addition of
supplementary rights to reflect Northern Ireland’s particular
circumstances. Both taken together are to constitute a Bill of Rights
for Northern Ireland. That floor exists within the Human Rights Act
but the current UK Bill of Rights process is not mandated to, and
could not even if it chose to do so, develop the supplementary
rights required to complete the Northern Ireland Bill of Rights.”149
222. In addition the Commission received 1,244 postcard responses from
individuals as part of a campaign organised by the Northern Ireland Human
Rights Consortium, which stated that “nothing done at the UK level should be
allowed to cut across [the Northern Ireland Bill of Rights] initiative or reduce
current protections.”
223. Views expressed to us in respect of Scotland were predominantly viewed
through the lens of the ongoing debate on Scotland’s constitutional future
within the UK. A small number of respondents made specific reference to the
planned referendum on Scottish independence as a reason to maintain the
current system. The Faculty of Advocates of Scotland, in their response to our
Consultation Paper stated:
“given the impending [Scottish independence referendum] in 2014 it
may be that matters are in such a state of flux as to render the
148
149
Discussion Paper Response, p. 2.
Consultation Paper Response, p. 5. 67
development of a UK Bill of Rights at this time neither appropriate
nor desirable.”150
224. While there was generally less commentary in respect of Wales, some felt that
it would be constitutionally and politically inappropriate for the Westminster
Parliament to alter the parameters of the Welsh Assembly’s legislative
competence in the light of the recent extension of devolved competence to
Wales. In response to our Consultation Paper, the Commission’s Advisory
Panel members from Wales, Aled Edwards and Clive Lewis QC, said:
“Legislation enacted by the Assembly must be compatible with
Convention rights. The provisions conferring such legislative
competence, including the need to ensure it was compatible with
Convention rights as set out in the Human Rights Act 1998, was
approved by a referendum in Wales in March 2011. Laws in
devolved areas are now made by the Assembly. The UK legislature
does not normally seek to make laws in areas of devolved
competence without the consent of the Assembly. In our view, it is
not consistent with the logic of that devolution settlement (enacted
by the UK Parliament and endorsed by the population of Wales) for
the United Kingdom Parliament now to alter the parameters of the
Assembly’s legislative competence or to impose additional
restrictions on the power of the Assembly to enact laws in devolved
areas (or to impose additional restrictions or obligations on the
Welsh Government in devolved areas).”151
225. More generally many respondents from different parts of the UK discussed
whether and how any UK Bill of Rights would affect the devolution settlements
in Northern Ireland, Scotland and Wales, whether amendments to these
settlements would be necessary, and whether the consent of the devolved
administrations or legislatures would be required to the introduction of a UK
Bill of Rights. For example, Professor Francesca Klug and Amy Ruth Williams:
“the ECHR is tied and embedded into the devolution statutes.
These provide that the devolved institutions have no competence to
act in any manner that is contrary to the ‘Convention rights’, defined
as having the same meaning as in the HRA (section 1). From a
legal perspective, if the HRA were repealed or impliedly amended
by a subsequent UK Bill of Rights, there would almost certainly be a
need for amendments to the devolution statutes.”152
“A strong argument can be made that ‘human rights’ have been
devolved to the devolved jurisdictions and that any amendments to
150
Consultation Paper Response, p. 9.
Consultation Paper Response, p. 4.
152
Consultation Paper Response, p. 15.
151
68
the HRA and any enactment of a Bill of Rights would require
amendments to be made to the devolution statutes, with the
consent of the devolved legislatures.”153
“The UK’s constitutional arrangements must be given careful
thought when considering the possibility of a Bill of Rights for the
UK. All of the devolved settlements have human rights embedded
into them and any new Bill which covered the whole of the UK
would need to take into account the application of the Bill of Rights
to the countries which make up the UK and how it interacts with the
specific limitations placed on the devolved administrations by the
Northern Ireland Act, Scotland Act and Government of Wales
Act.”154
226. While some saw these issues arising as a consequence of any attempt to
introduce a UK Bill of Rights, others suggested that this would depend on the
form and content of such a Bill.
Consultation Paper Question 13: To what extent should
current constitutional and political circumstances in Northern
Ireland, Scotland, Wales and/or the UK as a whole be a factor
in deciding whether (i) to maintain existing arrangements on
the protection of human rights in the UK, or (ii) to introduce a
UK Bill of Rights in some form?
227. Approximately 120 respondents to both papers referred to current
constitutional and political circumstances in Northern Ireland, Scotland, Wales
and/or the UK as a whole as a factor, to some degree, in deciding whether to
maintain the current system and/or adopt a UK Bill of Rights. There was,
however, a wide range of views on the extent to which such circumstances
might play a decisive role in any decision.
228. Just over half of respondents who addressed this question in our second
consultation expressed the view that current constitutional and political
circumstances were strong arguments for retaining the current system, or for
some, at least at this time. This was based in part on the view that, at a time
of such fluidity and constitutional uncertainty within the UK, current structures
in respect of human rights should be maintained. For example the Scottish
Human Rights Commission said to us that it:
“continues to be concerned that the current political climate
presents singularly unfavourable conditions to discuss a UK Bill of
Rights.”155
153
Faculty of Advocates, Consultation Paper Response, p. 8. Amnesty International UK, Discussion Paper Response, p. 15.
155
Consultation Paper Response. p. 10. 154
69
229.
The Equality and Human Rights Commission expressed a similar sentiment:
“the planned referendum on Scotland’s constitutional future in
October 2014 also means that we may be about to enter a period
where we see potentially significant new powers devolved to
Scotland: again, differential rights regimes in place in different parts
of the UK at a time of such fluidity and potential uncertainty would
be unhelpful….For these reasons we believe that the complex
political and constitutional factors at play in the UK mean current
structures should be maintained.”156
230. Referring to the responses we received to our first consultation, the Human
Rights Consortium in Northern Ireland said:
“circumstances in Northern Ireland should be a massive factor in
your decision-making. In the first consultation a substantial number
of submissions repeatedly highlighted the dangers of your process
interfering in the already established Northern Ireland Bill of Rights
process….The Consortium believes that the protections promised
in the [Belfast/Good Friday] Agreement are essential to maintaining
and extending the peace process in Northern Ireland.”
231. Professor Fiona de Londras of Durham Law School told us that:
“in relation to Northern Ireland in particular it should be noted that,
in addition to the Human Rights Act, there is already substantial
work ongoing on the desirability and possible form of both a Bill of
Rights for Northern Ireland and a Charter of Rights for the Island of
Ireland. If introduced, these will sit alongside the ECHR, the Human
Rights Act, and the Charter of Fundamental Rights of the EU. This
is already a complex proposition. It seems likely that adding an
additional ‘UK Bill of Rights’ into the equation would bring about
further uncertainty, fragmentation and complexity.”157
232. Approximately one third of respondents who answered this question in our
second consultation paper thought that current constitutional and political
circumstances should not, however, constitute a barrier to change. For
example Ulster Human Rights Watch said:
“although the United Kingdom consists of four different entities,
England, Northern Ireland, Scotland and Wales, the unity of the
British nation must be maintained. Constitutional and political
circumstances in different parts of the United Kingdom should not
156
157
Consultation Paper Response, p. 34. Consultation Paper Response, p. 6. 70
be seen as an impediment to the introduction of a UK Bill of Rights,
since it will preserve the unity of the nation and reinforce it.”158
233. A similar view was highlighted by Dr Austen Morgan who argued that:
“the regional assemblies do not have a veto on the repeal of the
HRA 1998. That is a matter solely for Westminster. If anything, the
HRA 1998 – like the European Communities Act 1972 – is simply
an imposition on them. The only point is that the HRA 1998 was to
some extent agreed, and therefore any replacement should be
negotiated with the devolved administrations – an unremarkable
political proposition.”159
234. Some respondents discussed current constitutional and political
circumstances in the UK but expressed no clear view on the extent to which
they should be a factor, often stating that the issue fell outside their areas of
expertise but urging that the views of experts and organisations in the
devolved nations should be taken into account. For example, the Equality and
Diversity Forum said that:
“these questions go beyond the remit and expertise of EDF
member organisations. However, we do believe they are critically
important questions and we would encourage the Commission to
take into account the views of suitable experts and organisations in
each of the devolved administrations.”160
Views from devolved administrations, legislatures and
political parties
235. The responses to both our consultation papers from devolved administrations,
legislatures and political parties in Scotland, Wales and Northern Ireland all
referred – in varying levels of detail – to the need for the particular
circumstances pertaining to those countries to feature in the current debate.
236. Roseanna Cunningham MSP, the Scottish Government’s Minister for
Community Safety and Legal Affairs said:
“on the extent to which the Commission would seek to factor the
current debate around Scotland’s constitutional future into its
thinking, I would simply state that in an independent Scotland, we
would seek to ensure that human rights, as defined by the
Convention, are at least as well protected as they are now. Under
the existing constitutional settlement, we would express the view
that, were the UK Government minded to alter the current regime,
158
Consultation Paper Response, p. 8.
Discussion Paper Response, p. 15 as cited in his Consultation Paper response.
160
Consultation Paper Response, p. 6.
159
71
the consent of the Scottish Parliament would be required under the
Sewel Convention. We would therefore expect to be consulted in
the event of any proposed changes. As we have stated throughout,
the Scottish Government would oppose repeal of the Human Rights
Act and the imposition of a UK Bill of Rights. Our position therefore
is and remains that Scotland’s views are of critical importance in
any decision to vary current arrangements and, to the extent that
such change would affect Scotland directly, the position arrived at
by the Scottish Parliament must be respected as being definitive
and conclusive.”161
237. The response from the Scottish Parliament’s Justice Committee pointed to the
current political backdrop:
“it is widely recognised that the Commission was set up as part of a
coalition agreement between two parties with very different views
on the role of human rights in the UK’s legal systems, rather than
because of a clear consensus across civic society that now is the
right time to discuss a UK Bill of Rights”162
238. The Welsh Government referred to:
“a number of issues specific to Wales that would cause the Welsh
Ministers concern in relation to a proposed Bill of Rights. Mainly
these issues centre on language rights, ensuring that language
services are provided and honouring the commitment the Welsh
Government has made to the Welsh language in the Welsh
Language Measure 2012.”163
239. More generally the Welsh Government said that it “finds it difficult to see the
benefits in a UK Bill of Rights.”164
240. The Constitutional and Legislative Affairs Committee of the National Assembly
for Wales told us that:
“…the National Assembly had only just acquired very extensive
legislative powers, and that the new arrangements were only just
starting to be understood and used in Cardiff and London. At the
same time the Government in Scotland planned a referendum on
independence. The outcome of such a referendum would obviously
have considerable significance for the content of any Bill of Rights,
and the issue of a written constitution…There was a general feeling
161
Consultation Paper Response, p. 5.
Consultation Response, p. 1.
163
Angharad Catrin Richards, the office of Theodore Huckle QC on behalf of the Welsh Government, Consultation
Paper Reponses, p. 1.
164
Ibid.
162
72
that the question of a Bill of Rights was not a matter of great public
controversy and debate at present.”165
241. The Minister of Justice in Northern Ireland stated:
“I continue to believe that whether by way of a UK Bill of Rights or
one that is specific to Northern Ireland, this part of the UK would
benefit from having a Bill of Rights that reflects our particular
needs.” 166
242. The Commission also received a response from Sinn Féin which stated that:
“the UK commission consultation document contradicts previous
assurances we have repeatedly received since early 2008 that the
Bill of Rights for the North and the UK Bill of Rights and
Responsibilities processes would be separate. Sinn Fein
emphasises that only full decoupling of these two processes will be
acceptable.”167
Views from National Human Rights Institutions
243. The Commission received responses to these questions from all three
National Human Rights Institutions in the United Kingdom. The Equality and
Human Rights Commission which has a remit in respect of England and
Wales, and in certain respects Scotland, stated in their response to our
Discussion Paper:
“The devolution implications of any possible repeal of the Human
Rights Act and replacement by a British Bill of Rights are complex
given the degree to which the HRA is embedded in the devolution
legislation. Even if the devolution settlements in Scotland, Wales
and Northern Ireland do not represent formal legal impediments to
any such proposals, it is likely that the agreed conventions which
have emerged since 1998 would require the consent of the
devolved institutions to any major change. These constitutional
considerations cannot be separated from the wider political context,
and the divergent political narratives in the devolved nations, which
suggest such consent may be unlikely to be forthcoming.”168
244. The Northern Ireland Human Rights Commission responded to our second
consultation stating:
165
Discussion Paper Response, p. 2.
David Ford MLA, Minister of Justice, Consultation Paper Response, p. 1.
167
Consultation Paper Response, p. 11.
168
Discussion Paper Response, p. 103.
166
73
“In 2011 the NIHRC advised that it was necessary for the
Commission to ensure that any decision regarding a UK Bill of
Rights be adopted by the Westminster Parliament and applied with
equal force in Northern Ireland as elsewhere in the UK. The UK
wide provisions should be in accordance, as a minimum, with the
existing implementation and enforcement mechanisms set out in
the Human Rights Act 1998 and contained in the devolution
statute…Reflecting [the Belfast (Good Friday) Agreement 1998 and
the Agreement at St Andrews 2006] commitments the Commission
should, in the view of NIHRC, conclude on the continuing need to
legislate for a Bill of Rights for Northern Ireland and advise the UK
Government accordingly.”169
245. In their response to our Discussion Paper the Scottish Human Rights
Commission emphasised the constitutional and devolutionary complications
which they believed would arise if the Human Rights Act were to be
substituted by a UK Bill of Rights:
“Repeal of the HRA is likely to undermine [the Scotland Act 1998,
the Government of Wales Act 1998, the Belfast/Good Friday
Agreement and the Northern Ireland Act 1998] constitutional
arrangements and consistent cross-UK interpretation of the
Convention. Instead it may well have the unintended consequence
of cementing a two-tier system of human rights protection within the
UK as it is likely that the Scottish Parliament would not agree to the
replacement of the HRA by a UK Bill of Rights and any subsequent
lowering of the existing level of protection provided by the HRA in
such devolved areas as health and social care, education, social
work, housing, criminal justice etc. This would therefore present the
legitimate question for the UK Government to answer - why should
individuals in London, Belfast and Cardiff have less human rights
protection than those in Glasgow?”170
Question 14: What are your views on the possible models
outlined in paragraphs 80-81 above for a UK Bill of Rights?
246. In our Discussion Paper, we asked how any UK Bill of Rights should apply to
the UK as a whole, including its four component countries of England,
Northern Ireland, Scotland and Wales. A small number of respondents offered
views on this question, asserting for example that the rights in a UK Bill of
Rights should apply across the United Kingdom and/or that the devolved
legislatures should continue to develop their own human rights policies within
devolved competences. In our second consultation paper, we sought more
169
170
Consultation Paper Response, p. 7. Discussion Paper Response, p. 4. 74
precise views by setting out two possible models for comment. These were, at
paragraphs 80 and 81 of the Consultation Paper:
“80. …a Bill that might sit alongside the existing Human Rights Act
and contain substantially similar provisions and rights to those
currently found in Schedule 1 to the Act. Under this model these
rights might apply UK wide but be exercisable in respect of
reserved matters only. Such an instrument might also include a
separate chapter containing rights that applied only to England, as
well as a statement that acknowledged the competence of the
Northern Ireland Assembly, the Scottish Parliament and the
National Assembly for Wales to enact legislation conferring
additional rights to meet the particular needs of those countries.
Any additional rights passed by the devolved legislatures would, by
virtue of the existing devolution statutes, relate to devolved matters
only.”
“81. …a UK Bill of Rights that contained additional rights in respect
of Northern Ireland, Scotland and Wales but which would not enter
into force in respect of those countries without the consent of the
respective devolved legislature.”
247. Fewer than 50 respondents answered question 14, and fewer than half
expressed direct views on possible models for a UK Bill of Rights. There was
little analysis offered of the models.
248. The largest number of responses to this question came from organisations
and individuals in Northern Ireland, including the Northern Ireland Human
Rights Commission and the Northern Ireland Human Rights Consortium.
These responses generally emphasised the Belfast/Good Friday Agreement
commitment to a Northern Ireland Bill of Rights and urged that it remain a
distinct process and instrument. The Consortium argued in particular that the
models were attempts to offer “a standardised solution to distinctly different
circumstances in the various devolved regions/countries” and expressed
doubt that the models “would be politically and legally achievable”.171
249. A small number of respondents objected to the possibility of different
fundamental rights applying in different countries of the UK. For example,
David and Susan Radlett wrote in a joint response:
“if human rights have any meaning at all, it is one that is, or ought to
be, universal in nature. To suggest differing levels of protection as
envisaged by paras 80 and 81 is actually rather bizarre: it
represents the worst of both worlds, and the best of neither. It is, or
would be (perish the thought), relativist in effect, if not intention.”172
171
172
Consultation Paper Response, p. 5. Consultation Paper Response, p. 2. 75
250. The public sector trade union UNISON wrote:
“UNISON considers that as Bills of Rights generally articulate
fundamental international principles and introducing one would give
positive and practical effect to the UK’s international obligations to
uphold these rights (e.g. International Covenant on Civil and
Political Rights), such rights should be extended to cover all of the
countries that make up the UK. It would be entirely appropriate for
the present Commission to closely consider the constitutional
implications of introducing a Bill of Rights across the countries but
UNISON cannot see any reason why such universal rights should
not be equally applicable to all countries in the UK so all citizens
can benefit equally from them.”173
251. Roseanna Cunningham MSP and Minister for Community Safety and Legal
Affairs, argued on behalf of the Scottish Government that multiple layers of
provision would be “fundamentally unworkable”, while noting that the Scottish
Government would nonetheless legislate within its competence to fill any gaps
it identified in fundamental rights protection:
“in relation to options for a UK Bill of Rights under the existing
constitutional settlement that make special arrangements for
matters within devolved competence, I take the view that these
would be fundamentally unworkable. As previously noted, multiple
layers of provision would be likely to give rise to widespread
confusion domestically and any diminution of effectiveness or
commitment would risk reputational damage internationally. That
said, if we considered it necessary (most obviously if the Human
Rights Act were to be repealed) it would certainly be open to the
Scottish Government to introduce Scotland-specific legislation to
ensure that the fundamental rights of people in Scotland are
properly protected in the context of devolved responsibilities.”174
252. Others highlighted the emerging development of different human rights
policies and law pursuant to devolved competence and pointed out that
devolved legislatures would continue to be able to legislate in their own way.
The Older People’s Commissioner for Wales advocated the model set out at
paragraph 80, but also provided a caution:
“The most appropriate model to follow, in our view, would be a Bill
of Rights at a UK level covering reserved policy matters. This would
then allow the Welsh Government and National Assembly to pursue
its own legislation.
173
174
Consultation Paper Response, p. 9. Consultation Paper Response, p. 5. 76
One complication, however, might occur in relation to the
enforcement of new rights. Responsibilities for judicial issues are
not devolved to Wales so consideration must be given to any
interface with the European Convention on Human Rights and the
courts in Strasbourg in this context.”175
253. The Equality and Human Rights Commission also pointed out a potential
problem with the model proposed at paragraph 80:
“We would have concerns about any move which would introduce a
Bill of Rights which was exercisable in respect of reserved matters
only: such a move could lead to confusion as to who had which
rights and in what circumstances, depending on where they were in
the UK.
The Commission shares its human rights remit in Scotland with the
Scottish Human Rights Commission, and the remit of each is based
upon whether a matter is reserved or devolved. We, therefore, have
first-hand experience of the complex interplay between the two
regimes. We know that there are extremely few areas where a
human rights issue can be easily identified as only reserved or only
devolved. For example, whilst the issue of human trafficking is
reserved, dealing with trafficking involves the Scottish Government,
police and court systems and therefore has a substantial devolved
element. In complex areas such as this, a Bill of Rights that dealt
with reserved matters only could lead to differing, overlapping, or
contradictory rights, none of which would promote transparency or
deliver better outcomes for either individuals or public
authorities.”176
Question 15: Do you have any other views on whether, and if
so, how any UK Bill of Rights should be formulated to take
account of the position in Northern Ireland, Scotland or
Wales?
254. Few respondents expressed a view on this question separate from their views
on the other questions, outlined above. Few respondents offered alternative
models or gave definitive views on whether, and the extent to which, the
devolution statutes might require amendment if there were to be a new
instrument.
175
176
Consultation Paper Response, p. 9. Consultation Paper Response, p. 34. 77
255. One respondent, Sinn Féin, did however express a view on how a UK
instrument might be otherwise formulated to take into account the position in
Northern Ireland:
“We insist (a) that the UK Bill of Rights and Responsibilities will
contain a non-diminution clause affirming that when applied in the
North of Ireland context, nothing in the Bill will have the effect of
undermining or lessening human rights protections from which
people living in the North benefit under international human rights
instruments to which the British Government is party, the current
applicable ordinary law, or any (forthcoming) Bill for Rights for the
North of Ireland; and (b) that within the North of Ireland, the NI Bill
of Rights will be superior to the UK Bill of Rights and
Responsibilities in the event of a conflict of laws….These are
essential not least because the northern Bill of Rights is a treaty
obligation predating the UK Bill of Rights and Responsibilities
initiative.”177
256. Many respondents simply reiterated the need to consider carefully the current
constitutional and political circumstances in Northern Ireland, Scotland, Wales
and/or the UK as a whole before recommending any change to the status quo.
177
Sinn Féin, Consultation Paper Response, p. 11.
78
Promoting a better understanding of the true scope of our obligations under the European Convention on Human Rights 257. The Commission invited views on matters falling within the Commission’s
remit which had not been addressed by the specific questions posed in both
consultations. One of the themes amongst the responses was the need for
better public education on human rights issues. This theme was addressed by
approximately 110 respondents to both papers.
258. Some 20 respondents linked their suggestion for better public education to the
Commission’s terms of reference which require the Commission to “consider
ways to promote a better understanding of the true scope of these obligations
(those under the European Convention on Human Rights) and liberties.” For
example, the National Aids Trust said:
“There is a need for Government (and other relevant parties
including the Equality and Human Rights Commission) to engage in
sustained work to educate the public with a view to clarifying
understanding of human rights and the HRA. The public needs
access to sources of accurate, unbiased information about the HRA
to balance the myths perpetrated by some media outlets. NAT
believe it is of vital importance that the Commission ‘consider ways
to promote a better understanding of the true scope of these
obligations and liberties’ as set out in its Terms of Reference.”178
259. Other respondents who highlighted the Commission’s terms of reference in
this context included the British Institute of Human Rights, the University of
East London, the Discrimination Law Association, the Scottish Independent
Advocacy Alliance, Scope, the Law Society of England and Wales and the
Scottish Human Rights Commission.
260. Suggestions for better education on human rights issues were made by a
cross-section of respondents that included those who advocated a UK Bill of
Rights, those who opposed such an instrument and those who were
equivocal.
261. There were two main ways in which respondents considered education on
human rights matters might best be achieved:
● through increased public awareness of the way the Human Rights
Act 1998 operates; or
178
Discussion Paper Response, p. 5.
79
● through the creation of a UK Bill of Rights.
How might public awareness of human rights be improved?
262. A little over three quarters of these respondents stated that there was a need
for public education on human rights and thought that this should be achieved
through better promotion of the Human Rights Act 1998. These respondents
tended to favour retaining the status quo. A small number of respondents
argued that the creation of a UK Bill of Rights would result in better education
of the public on human rights matters.
263. Arguing in favour of better promotion of the Human Rights Act, the Law
Society of England and Wales said that:
“the Human Rights Act 1998 should be retained and should be
accompanied by a programme of public education, outreach and
debate to enhance understanding and legitimacy.”179
264. Others who shared this view stated:
“the Government [should] stop taking any further action in recasting
the Human Rights Act as a UK Bill of Rights and instead undertake
an appropriate and effective programme of public education on
human rights and the Human Rights Act.”180
“In brief from our particular standpoint we are reasonably content
with the existing laws and believe that resources should not be
directed to the creation of yet another massive piece of legislation
but instead directed to more effective awareness and
implementation of the existing laws.”181
265. A small number of the respondents made particular reference to the need to
educate public authorities on their obligations under the Human Rights Act.
The Citizens Advice Bureau said that:
“both the Government and the EHRC should play central roles in
active promotion of human rights standards. It is particularly
important that public officials have a clear and accurate
understanding of what the HRA requires them to do, including the
positive obligations that public authorities have to protect human
rights.”182
266. Less than 10 respondents thought better education was needed on human
rights issues and argued that a UK Bill of Rights, including the process of its
179
Law Society of England and Wales, Discussion Paper Response, p. 2.
Imkaan, Consultation Paper Response, p. 2.
181
Gender Identity Research and Education, Consultation Paper Response, p. 1.
182
Consultation Paper Response, p. 6.
180
80
adoption, was the best way to educate the public on human rights matters.
The student response from the Northumbria School of Law said that:
“the Bill would be an opportunity to educate and inform citizens of
their rights. The student body concluded that any Bill of Rights
which attempts to modify the UK’s human rights’ culture would have
to do so through education.”183
267. Similarly, Tom Hickman of Blackstone Chambers said in response to our
Discussion Paper:
“A Bill of Rights project would have an important educative function,
not only in making people aware of the importance of civil and
human rights but also about the importance of the constitution and
the separation of power more generally.”184
268. Amongst both those who favoured better education on the status quo and
those who supported better education through the adoption of a UK Bill of
Rights, a handful of respondents stated that one way in which this might be
achieved would be through the school system. The student response from the
Northumbria School of Law argued that:
“there is now an opportunity to educate the public in a positive way
as to what rights they can expect to enjoy and see enforced under
UK law. One of the simplest ways of doing this is through schools,
perhaps through the provision of awareness sessions. One member
of the student body worked in a school where a rights and
responsibilities module was delivered and he described the
feedback from children aged 4-7 as very positive.”185
183
Discussion Paper Response, p. 2. Discussion Paper Response, p. 3. 185
Discussion Paper Response, p. 9. 184
81
Reform of the European Court of Human Rights 269. The Commission was asked in its terms of reference to provide interim advice
to the Government on the ongoing Interlaken process to reform the European
Court of Human Rights ahead of and following the UK’s Chairmanship of the
Council of Europe.
270. On 28 July 2011, the Commission provided interim advice to the Government
ahead of its Chairmanship. The Chair of the Commission also submitted a
parallel letter to Ministers on Court reform. The advice set out five main
recommendations for reform of the Court:
1. that the Court should only “address a limited number of cases
that raise serious questions affecting the interpretation or
application of the Convention and serious issues of general
importance”;
2. that the UK Government “use its Chairmanship to initiate a timebound programme of fundamental reform”;
3. that “a new and effective screening mechanism that allows the
Court to decline to deal with cases that do not raise a serious
violation of the Convention” should be established;
4. that “the meaning and effect of Article 41 of the Convention and
the role of the Court in awarding “just satisfaction” should be
revisited; and
5. that “agreement on appropriate and merit-based principles and
rules and adequate resources, for the selection of judicial
candidates at the national level, and for the appointment process
at the European level” should be established.
271. The Chair’s parallel letter presented a number of further suggestions for future
consideration which had not been agreed by Commission members but which
had either been suggested to them or had been raised by one or more of the
members. These included:
1. using retired judges to determine admissibility;
2. authorising officials of the Registry to take decisions on admissibility; 3. requiring applications to the Court to be signed by a lawyer or
NGO;
82
4. enabling the Court to deliver advisory opinions;
5. enabling preliminary references to be made from the highest
national court;
6. introducing a Statute of the Court which would allow the working
practices of the Court to be changed more quickly;
7. considering some form of “democratic override” or dialogue; and
8. introducing subsidiarity reviews by analogy to the EU treaty.
272. Although the Commission did not pose a question in either consultation on the
issue of reform of the Strasbourg Court, a number of respondents discussed
this issue. Below we summarise the views we received.
Reform of the Strasbourg Court
273. Approximately 50 respondents submitted views on this issue, mostly in
response to the Consultation Paper.
274. Approximately 40 respondents supported Court reform, while the rest were
equivocal or unclear on this issue. There were no express objections to reform
of the Strasbourg Court.
275. Around one third of the respondents who supported Court reform endorsed
the need for reform generally without reservation, including a very small
number who expressly supported some or all specific measures set out in the
Commission's interim advice.
276. However, approximately one quarter of those advocating reform expressed
concerns about the proposals in the Commission’s Interim Advice or the
Chair’s letter, while a small number expressed other concerns.
277. Concerns raised in connection with the Interim Advice included cautions about
the impact of screening mechanisms to reduce the workload of the Court and
about reforms to the process of awarding just satisfaction. The AIRE Centre
and others stated:
“we oppose proposals for a screening mechanism that would
impose additional admissibility criteria designed to curtail effective
access to and redress by the Court for violations of Convention
rights.”186
278. In addition, Amnesty International UK told us:
186
Joint response from: Amnesty International; the AIRE Centre; European Human Rights Advocacy Centre; Interrights; International Commission of Jurists; Human Rights Watch; and Open Society Justice Initiative, Discussion Paper Response, p. 3. 83
“we believe that permitting the Court to remit Article 41 decisions
back to the relevant State may increase delays in the determination
of compensation decisions, and the risk of further litigation, and
could risk different standards being applied to awards of just
satisfaction.”187
279. Concerns raised in connection with the Chair’s parallel letter included
objections to any proposals to introduce a ‘democratic override’. The Law
Society of England and Wales stated:
“the Law Society strongly opposes allowing an ECtHR decision to
be overridden by the PACE and or the Committee of Ministers
(CoM). Such override would undermine the rule of law, and the
whole point of the Convention system if member states can be let
off the hook.”188
280. A few respondents expressed caution on Court reform for other reasons,
including concerns that the Court’s effectiveness might be weakened by
reform, or scepticism about the underlying motives for reforming the Court.
One respondent said:
“I see no problem reforming and improving the European Court of
Human Rights, provided in the process the power of that court is
not reduced and that justice is not sacrificed simply to increase the
power of the local governments.”189
What reasons did respondents provide for advocating Court
reform?
281. Of the approximately 40 respondents who advocated Court reform, about two
thirds advanced the need to reduce the Court’s workload or to enhance the
efficiency of the Court. One respondent told us that:
“the European Court of Human Rights is drastically over-worked
and has an ever growing caseload. Very real consideration must be
given to a method of correcting this ever-growing problem.”190
282. Around one third of these respondents cited the quality of judges as a reason
for reforming the Court. For instance, one respondent said:
187
Discussion Paper Response, p. 9.
Discussion Paper Response, p. 16.
189
Professor Dabir H Tehrani, Discussion Paper Response.
190
Thomas Webber, Discussion Paper Response, p. 3.
188
84
“as to reform of the Strasbourg court, my own main interest is in
seeing its independence reinforced and the quality of its members
improved.”191
283. A small number of respondents urged that the Court’s role in awarding
relief/just satisfaction needed to be reformed. For example, Unlock
Democracy said:
“we are also inclined to agree that the Court is not the proper forum
for determining matters of relief.”192
How did respondents think the Court should be reformed?
284. Around one fifth of respondents discussing Court reform expressly agreed
with suggestions contained in the Commission’s Interim Advice, either in full
or on specific issues such as the introduction of a new screening mechanism.
285. A small number of respondents supported specific proposals raised in the
Chair’s letter, specifically the use of advisory opinions and democratic
override. Approximately 10 respondents presented their own proposals for
how to reform the Court. A further 10 respondents considered how to improve
the efficiency of the Court or appointment of judges, while a very small
number discussed just satisfaction or the potential for the Court to issue
advisory opinions. A very small number of respondents emphasised the need
to ensure that the Court has adequate funding and resources in order to
properly fulfil its mandate.
191
192
David Pollock, Discussion Paper Response.
Unlock Democracy, Discussion Paper Response, p. 13.
85
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Annex H1 The Institute for Public Policy Research, A British Bill of Rights, 1990 Reproduced with the kind permission of the Institute for Public Policy Research.
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Annex H2 Joint Committee on Human Rights, Outline of a UK Bill of Rights and Freedoms, 2008 Contains Parliamentary information licensed under the Open Parliament Licence v1.0:
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A Bill of Rights for the UK? 105
Annex 1: Outline of a UK Bill of Rights and
Freedoms
This Annex sets out an outline Bill of Rights and Freedoms. The Bill broadly follows and
adapts the basic structure of the Human Rights Act, which created a parliamentary model
of human rights protection. The Bill aims to improve on that model, by giving Parliament
an even more central role in the overall scheme. Annex 2 explains the clauses in the
Outline Bill of Rights and Freedoms, and how its provisions might work in practice.
UK BILL OF RIGHTS AND FREEDOMS
Preamble
This Bill of Rights and Freedoms is adopted to give lasting effect to the values which the
people of the United Kingdom of Great Britain and Northern Ireland, consider to be
fundamental:
•
The rule of law: the commitment to power being exercised lawfully as determined
by an independent judiciary
•
Liberty: the freedom from both unwarranted restrictions and basic wants
•
Democracy: giving as much control as possible to individuals over the decisions
which affect their lives
•
Fairness: the equal right of each and every person to be treated with dignity and
respect
•
Civic duty: the responsibilities to each other, to the communities to which we
belong and to future generations
The Rights and Freedoms
1. In this Act the “rights and freedoms” means –
(a) the Civil and Political Rights and Freedoms set out in Schedule 1
(b) the Fair Process Rights set out in Schedule 2
(c) the Economic and Social Rights set out in Schedule 3
(d) the Democratic Rights set out in Schedule 4
(5) the Rights of Particular Groups set out in Schedule 5.
Interpretation of the Bill of Rights and Freedoms
2. Any court, tribunal or other person or body interpreting this Bill of Rights and
Freedoms
106 A Bill of Rights for the UK?
(a) must strive to achieve the purpose of the Bill and to give practical effect to the
fundamental values underpinning it, as set out in the Preamble to the Bill;
(b) must pay due regard to international law, including international human rights
law; and
(c) may consider the relevant judgments of foreign and international courts and
tribunals.
Interpretation of legislation and common law
3. Any court, tribunal or other person or body interpreting any legislation (whenever
enacted) or applying the common law (whenever laid down) must, so far as it is possible to
do so, read and give effect to the legislation or common law in a way which is compatible
with the rights and freedoms in this Bill and which promotes the purpose of the Bill as set
out in the Preamble.
Power of Legislative Override
4. Parliament may expressly declare in an Act of Parliament that the Act or any provision
in it shall operate notwithstanding anything contained in this Bill of Rights and Freedoms.
Limitation of Rights
5. The rights and freedoms contained in this Bill may be subject only to such reasonable
limits, provided for by law, as can be demonstrably justified in a society based on the values
of liberty, democracy, fairness, civic duty and the rule of law, and to the extent compatible
with international human rights treaties to which the UK is a party, taking into account all
relevant factors, including:
(a) the nature of the right;
(b) the importance and legitimacy of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) the availability of less restrictive means to achieve the purpose.
Obligations
6. (1) The legislature, the executive, the judiciary, public authorities and any person or
body in the performance of any public function must
(a) act compatibly with a right or freedom in this Bill of Rights and Freedoms and
(b) take active steps to respect, protect, promote and fulfil the rights and freedoms in
this Bill.
(2) The factors which may be taken into account in determining whether a function is a
public function include:
A Bill of Rights for the UK? 107
(a) the extent to which the state has assumed responsibility for the function in
question
(b) the role and responsibility of the State in relation to the subject matter in question
(c) the nature and extent of the public interest in the function in question
(d) the nature and extent of any statutory power or duty in relation to the function in
question
(e) the extent to which the state, directly or indirectly, regulates, supervises and
inspects the performance of the function in question
(f) the extent to which the state makes payment for the function in question
(g) whether the function involves or may involve the use of statutory coercive powers
(h) the extent of the risk that improper performance of the function might violate a
right or freedom in this Bill.
Impact assessments and statements of compatibility
7. (1) A member of Parliament who introduces a Bill into either House of Parliament must,
before Second Reading of the Bill, lay before Parliament
(a) an impact assessment , assessing the impact of the Bill on the rights and freedoms
protected in this Bill of Rights and Freedoms; and
(b) a statement of compatibility stating
(i) whether, in the member’s opinion, the Bill is compatible with the
rights and freedoms in this Bill and, if so, the reasons for that view; and
(ii) if, in the member’s opinion, any part of the Bill is incompatible with
any right or freedom in this Bill, the nature and extent of the
incompatibility.
(2) The obligations in sub-section (1) also apply on tabling or making of
(a) Government amendments to Bills
(b) statutory instruments
(c) Orders-in-Council.
Enforcement
8. Any person or body who has a sufficient interest in the matter may bring legal
proceedings in the appropriate court or tribunal concerning the alleged breach of any right
or freedom in this Bill of Rights and Freedoms.
108 A Bill of Rights for the UK?
Remedies
9. (1) Subject to (2) below, a court may grant to any person or body whose rights or
freedoms under this Bill have been violated such remedy, within its powers, as it considers
just and appropriate and necessary to provide an effective remedy.
(2) If a court is satisfied that a provision of primary legislation is incompatible with a
provision of this Bill of Rights and Freedoms and cannot be interpreted compatibly, it must
make a declaration of incompatibility.
(3) A declaration of incompatibility does not affect the validity, continuing operation or
enforcement of the provision in respect of which it is given.
Process following declaration of incompatibility
10. (1) Within 3 months of a final declaration of incompatibility, the Minister responsible
for the relevant statutory provision must lay before Parliament a written statement
explaining
(a) whether the Government agrees that the provision is incompatible with a right or
freedom in this Bill;
(b) if it disagrees, its reasons for so doing;
(c) if it agrees, whether it proposes to remedy the incompatibility.
(2) If the Government proposes to remedy the incompatibility, the Minister responsible for
the relevant statutory provision must, within 6 months of the final declaration of
incompatibility, lay before Parliament a written statement explaining in detail how the
incompatibility will be remedied.
(3) A Minister of the Crown must, within six weeks of laying a statement under subsections
(1) or (2) above, make a motion in both Houses to take note of the statement laid.
(4) The Minister may by order (“a remedial order”) make such amendments to the
legislation as are necessary to remove the incompatibility.
(5) The court which made the final declaration of incompatibility has the power to re-open
the case in order to consider whether the incompatibility has been remedied.
Relationship with European Convention on Human Rights
11. (1) Rights and freedoms in this Bill which correspond with rights guaranteed by the
European Convention on Human Rights shall be interpreted as having at least the same
scope as the Convention rights.
(2) Nothing in this Article shall prevent rights and freedoms in this Bill being interpreted as
providing more extensive protection than the corresponding Convention rights.
Relationship with other existing rights
12. Nothing in this Bill of Rights and Freedoms denies the existence or restricts the scope
of any other rights or freedoms recognised or conferred by common law, statute or
A Bill of Rights for the UK? 109
customary international law, to the extent that they are consistent with the rights and
freedoms contained in this Bill.
Emergencies
13. (1) No derogation from any of the rights and freedoms in this Bill shall be lawful unless
a state of emergency has first been declared and confirmed by Parliament.
(2) A state of emergency may be declared only when there is a public emergency
threatening the life of the nation.
(3) Any legislation enacted in consequence of a declaration of a state of emergency may
derogate from any right or freedom in this Bill only to the extent that the derogation is
strictly required by the emergency and is consistent with the UK’s other international
obligations.
(4) Any person or body who has a sufficient interest in the matter may bring legal
proceedings in the appropriate court or tribunal challenging the validity of:
(a) a declaration of a state of emergency; or
(b) any legislation enacted, or other action taken, in consequence of a state of
emergency.
(5) A declaration of a state of emergency, and any legislation enacted or other action taken
in consequence of that declaration, shall be effective only
(a) prospectively from the date of the Act of Parliament making the declaration; and
(b) for no more than three months from the date of the declaration.
(6) No legislation enacted in consequence of a declaration of a state of emergency may
permit or authorise any derogation from the non-derogable rights listed in Schedule 1.
Prohibition of abuse of rights
14. Nothing in this Bill of Rights, Freedoms and Responsibilities may be interpreted as
implying for any person, group or body any right to engage in any activity or perform any
act aimed at the destruction of any of the rights and freedoms set forth in this Bill or at
their limitation to a greater extent than is provided for in this Bill.
Parliamentary Review
15. (1) The Secretary of State for Justice shall appoint an independent panel of reviewers of
the operation of this Bill of Rights and Freedoms.
(2) The independent panel shall conduct a review of the first 5 years of operation of this Bill
of Rights and Freedoms and lay its report before Parliament.
Schedule 1 - Civil and Political Rights and Freedoms
•
Equality
•
Dignity
110 A Bill of Rights for the UK?
•
Life
•
Physical and mental integrity
•
Freedom from torture and inhuman or degrading treatment or punishment
•
Freedom from slavery and forced labour
•
Liberty
•
Private and family life, home and communications
•
Freedom of thought, conscience and religion
•
Freedom of expression
•
Freedom of association
•
Right of assembly and demonstration
•
Right to marry
•
Right to found a family
•
Property
•
Freedom of movement and residence
•
Right to asylum
Schedule 2 – Fair Process Rights
•
Rights of arrested and detained persons
•
Right to a fair criminal trial
•
Right of access to court
•
Right to legal representation
•
Right to a fair hearing
•
Right to effective remedy
•
Right of access to information
•
Right to fair and just administrative action
Schedule 3 - Economic and Social Rights
Duty of progressive realisation
The Government must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of the rights in this schedule.
A Bill of Rights for the UK? 111
Duty to report to Parliament
The Government shall report annually to Parliament on the progress made during the
previous year in realising the rights in this schedule.
Parliament to determine eligibility
Eligibility for the rights in this schedule on grounds of nationality, residence or other status
shall be determined by Parliament in primary legislation, subject to the rights in schedule 1.
Justiciability
(1) The rights in this schedule are not enforceable by individuals against the Government
or any public authority.
(2) The rights in this schedule are justiciable only to the extent that they are relevant to:
(a) the interpretation of other legislation, or
(b) the assessment of the reasonableness of the measures taken to achieve their
progressive realisation.
Judicial review
When evaluating the reasonableness of the measures taken by the Government to achieve
the progressive realisation of the rights in this schedule, the courts shall have regard to the
following relevant considerations:
(a) the availability of resources
(b) the latitude inherent in a duty to achieve the realisation of the rights progressively
(c) the court has no jurisdiction to inquire into whether public money could be
better spent
(d) the fact that a wide range of measures is possible to meet the Government’s
obligations
(e) the availability of an alternative means of realising the rights is not, of itself, an
indication of unreasonableness
(f) whether the measures include emergency relief for those whose needs are urgent
(g) whether the measures are discriminatory
(h) whether the measures have been effectively made known to the public
(i) whether the measures are capable of facilitating the realisation of the relevant
rights
(j) whether any deprivation of existing rights is demonstrably justifiable in
accordance with s. 5 of this Bill (Limitation of Rights).
112 A Bill of Rights for the UK?
Health care
Everyone has the right to have access to appropriate health care services, free at the point of
use and within a reasonable time
No one may be refused appropriate emergency medical treatment
Education
Everyone of compulsory school age has the right to receive free, full-time education
suitable to their needs.
Everyone has the right to have access to further education and to vocational and
continuing training.
Housing
Everyone has the right to adequate accommodation appropriate to their needs. Everyone is entitled to be secure in the occupancy of their home. No one may be evicted from their home without an order of a court.
An adequate standard of living
Everyone is entitled to an adequate standard of living sufficient for that person and their
dependents, including adequate food, water and clothing
Everyone has the right to social assistance, including care and support, in accordance with
their needs.
No one shall be allowed to fall into destitution.
A healthy and sustainable environment
Everyone has the right to an environment that is not harmful to their health.
Everyone has the right to information enabling them to assess the risk to their health from
their environment.
Everyone has the right to a high level of environmental protection, for the benefit of
present and future generations, through reasonable legislative and other measures that –
(i) prevent pollution and ecological degradation;
(ii) promote conservation and
(iii) ensure that economic development and use of natural resources
are sustainable.
Schedule 4 - Democratic Rights
•
Right to free and fair elections
•
Right to vote and to stand as a candidate at elections
A Bill of Rights for the UK? 113
•
Right to participate in public life
•
Citizenship
Schedule 5 - Rights of Particular Groups
•
Children
•
Minorities
•
People with disabilities
•
Victims of Crime
240 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Annex H3 Links to Bills of Rights in other countries
Australia
Australian Capital Territory
Australian Capital Territory Human Rights Act 2004
http://www.legislation.act.gov.au/images/pdfa.gif
Victoria
Victorian Charter of Human Rights and Responsibilities 2006
http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubLawToday.nsf/imgPDF
Bahamas
The Constitution of The Bahamas 1973 (Chapter III)
http://www.lexbahamas.com/bahconfundamentalrights.htm
Barbados
The Constitution of Barbados 2002 (Chapter III)
http://www.oas.org/dil/The_Constitution_of_Barbados.pdf
Canada
Canadian Charter of Rights and Freedoms 1982
http://laws-lois.justice.gc.ca/eng/Const/page-15.html
Cyprus
The Constitution of the Republic of Cyprus 1960 (Part II)
http://www.kypros.org/Constitution/English/
Denmark
The Constitution of Denmark 1953 (Part VIII)
http://www.servat.unibe.ch/icl/da00000_.html
Finland
The Constitution of Finland 2000 (Chapter 2)
http://www.finlex.fi/fi/laki/kaannokset/1999/en19990731.pdf
France
Declaration of the Rights of Man and the Citizen 1789
http://www.constitution.org/fr/fr_drm.htm
Germany
Basic Law for the Federal Republic of Germany (Grundgesetz) 1949 (Chapter 1)
http://www.iuscomp.org/gla/statutes/GG.htm
Gibraltar
Gibraltar Constitution Order 2006 (Chapter I)
http://www.gibraltarlaws.gov.gi/constitution.php
Hong Kong
Hong Kong Bill of Rights 1991
http://hkhrm.org.hk/english/law/eng_boro1.html
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 241
India
The Constitution of India 1950 (Part III)
http://www.india.gov.in/govt/constitutions_india.php?id=2
Ireland
The Constitution of Ireland (Bunreacht na hÉireann) 1937 (Articles 40- 44)
www.constitution.ie
Jamaica
The Charter of Rights (Constitutional Amendment) Act 2011 (Chapter III)
http://www.japarliament.gov.jm/attachments/341_The%20Charter%20of%20Fundamental%
20Rights%20and%20Freedoms%20(Constitutional%20Amendment)%20Act,%202011.pdf
Namibia
The Constitution of the Republic of Namibia 1990 (Chapter 3)
http://www.grnnet.gov.na/
New Zealand
New Zealand Bill of Rights Act 1990
http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html
Norway
The Constitution of Norway 1814
http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The-Constitution/
South Africa
The Constitution of South Africa 1996 (Chapter 2)
http://www.info.gov.za/documents/constitution/1996/96cons2.htm/
Spain
The Constitution of Spain 1978 (Part 1)
http://www.lamoncloa.gob.es/IDIOMAS/9/Espana/LeyFundamental/index.htm
Sweden
The Instrument of Government (Chapter 2)
http://www.riksdagen.se/en/Documents-and-laws/Laws/The-Constitution/
Trinidad and Tobago
The Constitution of the Republic of Trinidad and Tobago (Chapter 1)
http://pdba.georgetown.edu/Constitutions/Trinidad/trinidad76.html
USA
United States Bill of Rights 1789
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
Virginia
Virginia Declaration of Rights 1776
http://www.constitution.org/bcp/virg_dor.htm
242 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Annex I The European Convention on Human Rights Council of Europe, Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols No. 11 and 14. Published with the permission of the
Council of Europe.
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 243
European Treaty Series - No. 5
Convention for the Protection
of Human Rights
and Fundamental Freedoms,
as amended by Protocols No. 11 and 14
Rome, 4.XI.1950
Text amended by the provisions of Protocol No. 14 (CETS No. 194) as from the date of its entry into force on 1 June 2010.
The text of the Convention had been previously amended according to the provisions of Protocol No. 3 (ETS No. 45), which entered
into force on 21 September 1970, of Protocol No. 5 (ETS No. 55), which entered into force on 20 December 1971 and of Protocol No. 8
(ETS No. 118), which entered into force on 1 January 1990, and comprised also the text of Protocol No. 2 (ETS No. 44) which, in
accordance with Article 5, paragraph 3 thereof, had been an integral part of the Convention since its entry into force on
21 September 1970. All provisions which had been amended or added by these Protocols were replaced by Protocol No. 11 (ETS
No. 155), as from the date of its entry into force on 1 November 1998. As from that date, Protocol No. 9 (ETS No. 140), which entered
into force on 1 October 1994, was repealed and Protocol No. 10 (ETS no. 146) had lost its purpose.
244 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
The governments signatory hereto, being members of the Council of Europe,
Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the
United Nations on 10th December 1948;
Considering that this Declaration aims at securing the universal and effective recognition and
observance of the Rights therein declared;
Considering that the aim of the Council of Europe is the achievement of greater unity between its
members and that one of the methods by which that aim is to be pursued is the maintenance and further
realisation of human rights and fundamental freedoms;
Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice
and peace in the world and are best maintained on the one hand by an effective political democracy and
on the other by a common understanding and observance of the human rights upon which they depend;
Being resolved, as the governments of European countries which are like-minded and have a common
heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the
collective enforcement of certain of the rights stated in the Universal Declaration,
Have agreed as follows:
Article 1 – Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms
defined in Section I of this Convention.
Section I – Rights and freedoms
Article 2 – Right to life
1
Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save
in the execution of a sentence of a court following his conviction of a crime for which this penalty is
provided by law.
2
Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
a
in defence of any person from unlawful violence;
b
in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c
in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4 – Prohibition of slavery and forced labour
1
No one shall be held in slavery or servitude.
2
No one shall be required to perform forced or compulsory labour.
3
For the purpose of this article the term “forced or compulsory labour” shall not include:
a
any work required to be done in the ordinary course of detention imposed according to the
provisions of Article 5 of this Convention or during conditional release from such detention;
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 245
b
any service of a military character or, in case of conscientious objectors in countries where they
are recognised, service exacted instead of compulsory military service;
c
any service exacted in case of an emergency or calamity threatening the life or well-being of the
community;
d
any work or service which forms part of normal civic obligations.
Article 5 – Right to liberty and security
1
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law:
a
the lawful detention of a person after conviction by a competent court;
b
the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
c
the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing after having done
so;
d
the detention of a minor by lawful order for the purpose of educational supervision or his lawful
detention for the purpose of bringing him before the competent legal authority;
e
the lawful detention of persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants;
f
the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view to deportation or
extradition.
2
Everyone who is arrested shall be informed promptly, in a language which he understands, of the
reasons for his arrest and of any charge against him.
3
Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be
brought promptly before a judge or other officer authorised by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.
4
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the
detention is not lawful.
5
Everyone who has been the victim of arrest or detention in contravention of the provisions of this article
shall have an enforceable right to compensation.
Article 6 – Right to a fair trial
1
In the determination of his civil rights and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
2
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to
law.
246 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
3
Everyone charged with a criminal offence has the following minimum rights:
a
to be informed promptly, in a language which he understands and in detail, of the nature and cause
of the accusation against him;
b
to have adequate time and facilities for the preparation of his defence;
c
to defend himself in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the interests of justice so
require;
d
to examine or have examined witnesses against him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions as witnesses against him;
e
to have the free assistance of an interpreter if he cannot understand or speak the language used in
court.
Article 7 – No punishment without law
1
No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was
committed.
2
This article shall not prejudice the trial and punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to the general principles of law recognised by
civilised nations.
Article 8 – Right to respect for private and family life
1
Everyone has the right to respect for his private and family life, his home and his correspondence.
2
There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others.
Article 9 – Freedom of thought, conscience and religion
1
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and observance.
2
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of public safety, for the protection of
public order, health or morals, or for the protection of the rights and freedoms of others.
Article 10 – Freedom of expression
1
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by public authority and regardless of
frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or
cinema enterprises.
2
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 247
reputation or rights of others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
Article 11 – Freedom of assembly and association
1
Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his interests.
2
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law
and are necessary in a democratic society in the interests of national security or public safety, for the
prevention of disorder or crime, for the protection of health or morals or for the protection of the rights
and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of the administration of the
State.
Article 12 – Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the
national laws governing the exercise of this right.
Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been committed by persons
acting in an official capacity.
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.
Article 15 – Derogation in time of emergency
1
In time of war or other public emergency threatening the life of the nation any High Contracting Party
may take measures derogating from its obligations under this Convention to the extent strictly required
by the exigencies of the situation, provided that such measures are not inconsistent with its other
obligations under international law.
2
No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from
Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3
Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General
of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It
shall also inform the Secretary General of the Council of Europe when such measures have ceased to
operate and the provisions of the Convention are again being fully executed.
Article 16 – Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from
imposing restrictions on the political activity of aliens.
Article 17 – Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to
engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is provided for in the Convention.
Article 18 – Limitation on use of restrictions on rights
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The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for
any purpose other than those for which they have been prescribed.
Section II – European Court of Human Rights
Article 19 – Establishment of the Court
To ensure the observance of the engagements undertaken by the High Contracting Parties in the
Convention and the Protocols thereto, there shall be set up a European Court of Human Rights,
hereinafter referred to as "the Court". It shall function on a permanent basis.
Article 20 – Number of judges
The Court shall consist of a number of judges equal to that of the High Contracting Parties.
Article 21 – Criteria for office
1
The judges shall be of high moral character and must either possess the qualifications required for
appointment to high judicial office or be jurisconsults of recognised competence.
2
The judges shall sit on the Court in their individual capacity.
3
During their term of office the judges shall not engage in any activity which is incompatible with their
independence, impartiality or with the demands of a full-time office; all questions arising from the
application of this paragraph shall be decided by the Court.
Article 22 – Election of judges 13
The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party
by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.
Article 23 – Terms of office and dismissal 14
1
The judges shall be elected for a period of nine years. They may not be re-elected. 2
The terms of office of judges shall expire when they reach the age of 70. 3
The judges shall hold office until replaced. They shall, however, continue to deal with such cases as they already have under consideration.
4
No judge may be dismissed from office unless the other judges decide by a majority of two-thirds that
that judge has ceased to fulfil the required conditions.
Article 24 – Registry and rapporteurs 2
1
The Court shall have a registry, the functions and organisation of which shall be laid down in the rules
of the Court.
2
When sitting in a single-judge formation, the Court shall be assisted by rapporteurs who shall function
under the authority of the President of the Court. They shall form part of the Court’s registry.
Article 25 – Plenary Court 15
The plenary Court shall
a
elect its President and one or two Vice-Presidents for a period of three years; they may be reelected;
b
set up Chambers, constituted for a fixed period of time;
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 249
c
elect the Presidents of the Chambers of the Court; they may be re-elected; d
adopt the rules of the Court;
e
elect the Registrar and one or more Deputy Registrars;
f
make any request under Article 26, paragraph 2. Article 26 – Single-judge formation, committees, Chambers and Grand Chamber 1
1
To consider cases brought before it, the Court shall sit in a single-judge formation, in committees of
three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges. The Court’s
Chambers shall set up committees for a fixed period of time.
2
At the request of the plenary Court, the Committee of Ministers may, by a unanimous decision and for a
fixed period, reduce to five the number of judges of the Chambers.
3
When sitting as a single judge, a judge shall not examine any application against the High Contracting
Party in respect of which that judge has been elected.
4
There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in
respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a
person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the
capacity of judge.
5
The Grand Chamber shall also include the President of the Court, the Vice-Presidents, the Presidents of
the Chambers and other judges chosen in accordance with the rules of the Court. When a case is
referred to the Grand Chamber under Article 43, no judge from the Chamber which rendered the
judgment shall sit in the Grand Chamber, with the exception of the President of the Chamber and the
judge who sat in respect of the High Contracting Party concerned.
Article 27 – Competence of single judges 16
1
A single judge may declare inadmissible or strike out of the Court’s list of cases an application
submitted under Article 34, where such a decision can be taken without further examination.
2
The decision shall be final.
3
If the single judge does not declare an application inadmissible or strike it out, that judge shall forward
it to a committee or to a Chamber for further examination.
Article 28 – Competence of committees 17
1
In respect of an application submitted under Article 34, a committee may, by a unanimous vote,
a
declare it inadmissible or strike it out of its list of cases, where such decision can be taken without
further examination; or
b
declare it admissible and render at the same time a judgment on the merits, if the underlying
question in the case, concerning the interpretation or the application of the Convention or the
Protocols thereto, is already the subject of well-established case-law of the Court.
2
Decisions and judgments under paragraph 1 shall be final.
3
If the judge elected in respect of the High Contracting Party concerned is not a member of the
committee, the committee may at any stage of the proceedings invite that judge to take the place of one
of the members of the committee, having regard to all relevant factors, including whether that Party has
contested the application of the procedure under paragraph 1.b.
Article 29 – Decisions by Chambers on admissibility and merits 18
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1
If no decision is taken under Article 27 or 28, or no judgment rendered under Article 28, a Chamber
shall decide on the admissibility and merits of individual applications submitted under Article 34. The
decision on admissibility may be taken separately.
2
A Chamber shall decide on the admissibility and merits of inter-State applications submitted under
Article 33. The decision on admissibility shall be taken separately unless the Court, in exceptional
cases, decides otherwise.
Article 30 – Relinquishment of jurisdiction to the Grand Chamber
Where a case pending before a Chamber raises a serious question affecting the interpretation of the
Convention or the protocols thereto, or where the resolution of a question before the Chamber might
have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any
time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless
one of the parties to the case objects.
Article 31 – Powers of the Grand Chamber 19
The Grand Chamber shall
a
determine applications submitted either under Article 33 or Article 34 when a Chamber has
relinquished jurisdiction under Article 30 or when the case has been referred to it under Article 43;
b
decide on issues referred to the Court by the Committee of Ministers in accordance with Article
46, paragraph 4; and
c
consider requests for advisory opinions submitted under Article 47.
Article 32 – Jurisdiction of the Court 1
1
The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of
the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34, 46 and
47.
2
In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.
Article 33 – Inter-State cases
Any High Contracting Party may refer to the Court any alleged breach of the provisions of the
Convention and the protocols thereto by another High Contracting Party.
Article 34 – Individual applications
The Court may receive applications from any person, non-governmental organisation or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights
set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.
Article 35 – Admissibility criteria 1
1
The Court may only deal with the matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law, and within a period of six months from the date on
which the final decision was taken.
2
The Court shall not deal with any application submitted under Article 34 that
a
is anonymous; or
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b
3
4
is substantially the same as a matter that has already been examined by the Court or has already
been submitted to another procedure of international investigation or settlement and contains no
relevant new information.
The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that :
a
the application is incompatible with the provisions of the Convention or the Protocols thereto,
manifestly ill-founded, or an abuse of the right of individual application; or
b
the applicant has not suffered a significant disadvantage, unless respect for human rights as
defined in the Convention and the Protocols thereto requires an examination of the application on
the merits and provided that no case may be rejected on this ground which has not been duly
considered by a domestic tribunal.
The Court shall reject any application which it considers inadmissible under this Article. It may do so
at any stage of the proceedings.
Article 36 – Third party intervention 20
1
In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals
is an applicant shall have the right to submit written comments and to take part in hearings.
2
The President of the Court may, in the interest of the proper administration of justice, invite any High
Contracting Party which is not a party to the proceedings or any person concerned who is not the
applicant to submit written comments or take part in hearings.
3
In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human
Rights may submit written comments and take part in hearings.
Article 37 – Striking out applications
1
The Court may at any stage of the proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that
a
the applicant does not intend to pursue his application; or
b
the matter has been resolved; or
c
for any other reason established by the Court, it is no longer justified to continue the examination
of the application.
However, the Court shall continue the examination of the application if respect for human rights as
defined in the Convention and the protocols thereto so requires.
2
The Court may decide to restore an application to its list of cases if it considers that the circumstances
justify such a course.
Article 38 – Examination of the case 21
The Court shall examine the case together with the representatives of the parties and, if need be,
undertake an investigation, for the effective conduct of which the High Contracting Parties concerned
shall furnish all necessary facilities.
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Article 39 – Friendly settlements 22
1
At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with
a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined
in the Convention and the Protocols thereto.
2
Proceedings conducted under paragraph 1 shall be confidential.
3
If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached.
4
This
decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of
the terms of the friendly settlement as set out in the decision.
Article 40 – Public hearings and access to documents
1
Hearings shall be in public unless the Court in exceptional circumstances decides otherwise.
2
Documents deposited with the Registrar shall be accessible to the public unless the President of the
Court decides otherwise.
Article 41 – Just satisfaction
If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.
Article 42 – Judgments of Chambers
Judgments of Chambers shall become final in accordance with the provisions of Article 44, paragraph
2.
Article 43 – Referral to the Grand Chamber
1
Within a period of three months from the date of the judgment of the Chamber, any party to the case
may, in exceptional cases, request that the case be referred to the Grand Chamber.
2
A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious
question affecting the interpretation or application of the Convention or the protocols thereto, or a
serious issue of general importance.
3
If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.
Article 44 – Final judgments
1
The judgment of the Grand Chamber shall be final.
2
The judgment of a Chamber shall become final
3
a
when the parties declare that they will not request that the case be referred to the Grand Chamber;
or
b
three months after the date of the judgment, if reference of the case to the Grand Chamber has not
been requested; or
c
when the panel of the Grand Chamber rejects the request to refer under Article 43.
The final judgment shall be published.
Article 45 – Reasons for judgments and decisions
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 253
1
Reasons shall be given for judgments as well as for decisions declaring applications admissible or
inadmissible.
2
If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge
shall be entitled to deliver a separate opinion.
Article 46 – Binding force and execution of judgments 23
1
The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which
they are parties.
2
The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall
supervise its execution.
3
If the Committee of Ministers considers that the supervision of the execution of a final judgment is
hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling
on the question of interpretation. A referral decision shall require a majority vote of two thirds of the
representatives entitled to sit on the Committee.
4
If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final
judgment in a case to which it is a party, it may, after serving formal notice on that Party and by
decision adopted by a majority vote of two thirds of the representatives entitled to sit on the
Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under
paragraph 1.
5
If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for
consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer
the case to the Committee of Ministers, which shall close its examination of the case.
Article 47 – Advisory opinions
1
The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions
concerning the interpretation of the Convention and the protocols thereto.
2
Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms
defined in Section I of the Convention and the protocols thereto, or with any other question which the
Court or the Committee of Ministers might have to consider in consequence of any such proceedings as
could be instituted in accordance with the Convention.
3
Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a
majority vote of the representatives entitled to sit on the Committee.
Article 48 – Advisory jurisdiction of the Court
The Court shall decide whether a request for an advisory opinion submitted by the Committee of
Ministers is within its competence as defined in Article 47.
Article 49 – Reasons for advisory opinions
1
Reasons shall be given for advisory opinions of the Court.
2
If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any
judge shall be entitled to deliver a separate opinion.
3
Advisory opinions of the Court shall be communicated to the Committee of Ministers.
Article 50 – Expenditure on the Court
The expenditure on the Court shall be borne by the Council of Europe.
254 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Article 51 – Privileges and immunities of judges
The judges shall be entitled, during the exercise of their functions, to the privileges and immunities
provided for in Article 40 of the Statute of the Council of Europe and in the agreements made
thereunder.
Section III – Miscellaneous provisions
Article 52 – Inquiries by the Secretary General
On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party
shall furnish an explanation of the manner in which its internal law ensures the effective implementation
of any of the provisions of the Convention.
Article 53 – Safeguard for existing human rights
Nothing in this Convention shall be construed as limiting or derogating from any of the human rights
and fundamental freedoms which may be ensured under the laws of any High Contracting Party or
under any other agreement to which it is a Party.
Article 54 – Powers of the Committee of Ministers
Nothing in this Convention shall prejudice the powers conferred on the Committee of Ministers by the
Statute of the Council of Europe.
Article 55 – Exclusion of other means of dispute settlement
The High Contracting Parties agree that, except by special agreement, they will not avail themselves of
treaties, conventions or declarations in force between them for the purpose of submitting, by way of
petition, a dispute arising out of the interpretation or application of this Convention to a means of
settlement other than those provided for in this Convention.
Article 56 – Territorial application
1
Any State may at the time of its ratification or at any time thereafter declare by notification addressed to
the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4
of this Article, extend to all or any of the territories for whose international relations it is responsible.
2
The Convention shall extend to the territory or territories named in the notification as from the thirtieth
day after the receipt of this notification by the Secretary General of the Council of Europe.
3
The provisions of this Convention shall be applied in such territories with due regard, however, to local
requirements.
4
Any State which has made a declaration in accordance with paragraph 1 of this article may at any time
thereafter declare on behalf of one or more of the territories to which the declaration relates that it
accepts the competence of the Court to receive applications from individuals, non-governmental
organisations or groups of individuals as provided by Article 34 of the Convention.
Article 57 – Reservations
1
Any State may, when signing this Convention or when depositing its instrument of ratification, make a
reservation in respect of any particular provision of the Convention to the extent that any law then in
force in its territory is not in conformity with the provision. Reservations of a general character shall not
be permitted under this article.
2
Any reservation made under this article shall contain a brief statement of the law concerned.
Article 58 – Denunciation
A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 255
1
A High Contracting Party may denounce the present Convention only after the expiry of five years from
the date on which it became a party to it and after six months' notice contained in a notification
addressed to the Secretary General of the Council of Europe, who shall inform the other High
Contracting Parties.
2
Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its
obligations under this Convention in respect of any act which, being capable of constituting a violation
of such obligations, may have been performed by it before the date at which the denunciation became
effective.
3
Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to
be a Party to this Convention under the same conditions.
4
The Convention may be denounced in accordance with the provisions of the preceding paragraphs in
respect of any territory to which it has been declared to extend under the terms of Article 56.
Article 59 – Signature and ratification 24
1
This Convention shall be open to the signature of the members of the Council of Europe. It shall be
ratified. Ratifications shall be deposited with the Secretary General of the Council of Europe.
2
The European Union may accede to this Convention.
3
The present Convention shall come into force after the deposit of ten instruments of ratification.
4
As regards any signatory ratifying subsequently, the Convention shall come into force at the date of the
deposit of its instrument of ratification.
5
The Secretary General of the Council of Europe shall notify all the members of the Council of Europe
of the entry into force of the Convention, the names of the High Contracting Parties who have ratified it,
and the deposit of all instruments of ratification which may be effected subsequently.
Done at Rome this 4th day of November 1950, in English and French, both texts being equally
authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The
Secretary General shall transmit certified copies to each of the signatories.
256 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes
Annex J
The Human Rights Act 1998
Contains Public Sector information licensed under the Open Government Licence v1.0:
http://www.nationalarchives.gov.uk/doc/open-government-licence/
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Human Rights Act 1998
1998 CHAPTER 42
An Act to give further effect to rights and freedoms guaranteed under the European
Convention on Human Rights; to make provision with respect to holders of certain
judicial offices who become judges of the European Court of Human Rights; and for
connected purposes.
[9th November 1998]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same, as follows:—
Annotations:
Extent Information
E1
For the extent of this Act outside the U.K., see s. 22(6)(7)
Modifications etc. (not altering text)
C1
C2
Act: certain functions of the Secretary of State transferred to the Lord Chancellor (26.11.2001) by S.I.
2001/3500, arts. 3, 4, Sch. 1 para. 5
Act (except ss. 5, 10, 18, 19 and Sch. 4): Functions of the Lord Chancellor transferred to the Secretary
of State, and all property, rights and liabilities to which the Lord Chancellor is entitled or subject to
in connection with any such function transferred to the Secretary of State for Constitutional Affairs
(19.8.2003) by S.I. 2003/1887, art. 4, Sch. 1
Introduction
1
The Convention Rights.
(1) In this Act “the Convention rights” means the rights and fundamental freedoms set
out in—
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, and
(c) [F1Article 1 of the Thirteenth Protocol],
2
Human Rights Act 1998 (c. 42)
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as read with Articles 16 to 18 of the Convention.
(2) Those Articles are to have effect for the purposes of this Act subject to any designated
derogation or reservation (as to which see sections 14 and 15).
(3) The Articles are set out in Schedule 1.
(4) The [F2Secretary of State] may by order make such amendments to this Act as he
considers appropriate to reflect the effect, in relation to the United Kingdom, of a
protocol.
(5) In subsection (4) “protocol” means a protocol to the Convention—
(a) which the United Kingdom has ratified; or
(b) which the United Kingdom has signed with a view to ratification.
(6) No amendment may be made by an order under subsection (4) so as to come into force
before the protocol concerned is in force in relation to the United Kingdom.
Annotations:
Amendments (Textual)
F1
F2
2
Words in s. 1(1)(c) substituted (22.6.2004) by The Human Rights Act 1998 (Amendment) Order 2004
(S. I. 2004/1574), art. 2(1)
Words in s. 1 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
Interpretation of Convention rights.
(1) A court or tribunal determining a question which has arisen in connection with a
Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of
Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the
Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the
Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the
Convention,
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant
to the proceedings in which that question has arisen.
(2) Evidence of any judgment, decision, declaration or opinion of which account may
have to be taken under this section is to be given in proceedings before any court or
tribunal in such manner as may be provided by rules.
(3) In this section “rules” means rules of court or, in the case of proceedings before a
tribunal, rules made for the purposes of this section—
(a) by F3...[F4the Lord Chancellor or] the Secretary of State, in relation to any
proceedings outside Scotland;
(b) by the Secretary of State, in relation to proceedings in Scotland; or
(c) by a Northern Ireland department, in relation to proceedings before a tribunal
in Northern Ireland—
Human Rights Act 1998 (c. 42)
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3
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force.
Annotations:
Amendments (Textual)
F3
F4
Words in s. 2(3)(a) repealed (19.8.2003) by The Secretary of State for Constitutional Affairs Order
2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(2)
Words in s. 2(3)(a) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary
of State) Order 2005 (S.I. 2005/3429), art. 8, Sch. para. 3
Modifications etc. (not altering text)
C3
S. 2(3)(a): functions of the Secretary of State to be exercisable concurrently with the Lord Chancellor
(12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I.
2005/3429), art. 3(2) (with arts. 4, 5)
Legislation
3
Interpretation of legislation.
(1) So far as it is possible to do so, primary legislation and subordinate legislation must
be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any
incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any
incompatible subordinate legislation if (disregarding any possibility of
revocation) primary legislation prevents removal of the incompatibility.
4
Declaration of incompatibility.
(1) Subsection (2) applies in any proceedings in which a court determines whether a
provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it
may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a
provision of subordinate legislation, made in the exercise of a power conferred by
primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation
concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
(5) In this section “court” means—
[F5(a) the Supreme Court;]
4
Human Rights Act 1998 (c. 42)
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(b)
(c)
(d)
(e)
[F7(f)
the Judicial Committee of the Privy Council;
the [F6Court Martial Appeal Court] ;
in Scotland, the High Court of Justiciary sitting otherwise than as a trial court
or the Court of Session;
in England and Wales or Northern Ireland, the High Court or the Court of
Appeal.
the Court of Protection, in any matter being dealt with by the President of the
Family Division, the Vice-Chancellor or a puisne judge of the High Court.]
(6) A declaration under this section (“a declaration of incompatibility”)—
(a) does not affect the validity, continuing operation or enforcement of the
provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
Annotations:
Amendments (Textual)
F5
F6
F7
5
S. 4(5)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para.
66(2); S.I. 2009/1604, art. 2(d)
Words in s. 4(5)(c) substituted (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed
Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 156; S.I. 2009/812, art. 3 (with transitional
provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
S. 4(5)(f) inserted (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68(1)-(3), Sch. 6 para.
43 (with ss. 27, 28, 29, 62); S.I. 2007/1897, art. 2(1)(c)(d)
Right of Crown to intervene.
(1) Where a court is considering whether to make a declaration of incompatibility, the
Crown is entitled to notice in accordance with rules of court.
(2) In any case to which subsection (1) applies—
(a) a Minister of the Crown (or a person nominated by him),
(b) a member of the Scottish Executive,
(c) a Northern Ireland Minister,
(d) a Northern Ireland department,
is entitled, on giving notice in accordance with rules of court, to be joined as a party
to the proceedings.
(3) Notice under subsection (2) may be given at any time during the proceedings.
(4) A person who has been made a party to criminal proceedings (other than in Scotland)
as the result of a notice under subsection (2) may, with leave, appeal to the [F8Supreme
Court] against any declaration of incompatibility made in the proceedings.
(5) In subsection (4)—
“criminal proceedings” includes all proceedings before the [F9Court Martial
Appeal Court]; and
“leave” means leave granted by the court making the declaration of
incompatibility or by the [F10Supreme Court]
Human Rights Act 1998 (c. 42)
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5
Annotations:
Amendments (Textual)
F8
F9
F10
Words in s. 5(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9
para. 66(3); S.I. 2009/1604, art. 2(d)
Words in s. 5(5) substituted (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed
Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 157; S.I. 2009/812, art. 3 (with transitional
provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
Words in s. 5(5) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9
para. 66(3); S.I. 2009/1604, art. 2(d)
Public authorities
6
Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority
could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation
which cannot be read or given effect in a way which is compatible with the
Convention rights, the authority was acting so as to give effect to or enforce
those provisions.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in
connection with proceedings in Parliament.
(4) F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) In relation to a particular act, a person is not a public authority by virtue only of
subsection (3)(b) if the nature of the act is private.
(6) “An act” includes a failure to act but does not include a failure to—
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.
Annotations:
Amendments (Textual)
F11
S. 6(4) repealed (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 146, 148, Sch. 9 para.
66(4), Sch. 18 Pt. 5; S.I. 2009/1604, art. 2(d)(f)
Modifications etc. (not altering text)
C4
S. 6(1) applied (2.10.2000) by 1999 c. 33, ss. 65(2), 170(4); S.I. 2000/2444, art. 2, Sch. 1 (subject to
transitional provisions in arts. 3, 4, Sch. 2)
6
Human Rights Act 1998 (c. 42)
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C5
7
S. 6(3)(b) modified (1.12.2008 with exception in art. 2(2) of commencing S.I.) by Health and Social
Care Act 2008 (c. 14), ss. 145(1)-(4), 170 (with s. 145(5)); S.I. 2008/2994, art. 2(1)
Proceedings.
(1) A person who claims that a public authority has acted (or proposes to act) in a way
which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court
or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as
may be determined in accordance with rules; and proceedings against an authority
include a counterclaim or similar proceeding.
(3) If the proceedings are brought on an application for judicial review, the applicant is
to be taken to have a sufficient interest in relation to the unlawful act only if he is, or
would be, a victim of that act.
(4) If the proceedings are made by way of a petition for judicial review in Scotland, the
applicant shall be taken to have title and interest to sue in relation to the unlawful act
only if he is, or would be, a victim of that act.
(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained
of took place; or
(b) such longer period as the court or tribunal considers equitable having regard
to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure
in question.
(6) In subsection (1)(b) “legal proceedings” includes—
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he
would be a victim for the purposes of Article 34 of the Convention if proceedings were
brought in the European Court of Human Rights in respect of that act.
(8) Nothing in this Act creates a criminal offence.
(9) In this section “rules” means—
(a) in relation to proceedings before a court or tribunal outside Scotland, rules
made by F12...[F13the Lord Chancellor or] the Secretary of State for the purposes
of this section or rules of court,
(b) in relation to proceedings before a court or tribunal in Scotland, rules made
by the Secretary of State for those purposes,
(c) in relation to proceedings before a tribunal in Northern Ireland—
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force,
rules made by a Northern Ireland department for those purposes,
Human Rights Act 1998 (c. 42)
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and includes provision made by order under section 1 of the
Services Act 1990.
7
M1
Courts and Legal
(10) In making rules, regard must be had to section 9.
(11) The Minister who has power to make rules in relation to a particular tribunal may, to the
extent he considers it necessary to ensure that the tribunal can provide an appropriate
remedy in relation to an act (or proposed act) of a public authority which is (or would
be) unlawful as a result of section 6(1), by order add to—
(a) the relief or remedies which the tribunal may grant; or
(b) the grounds on which it may grant any of them.
(12) An order made under subsection (11) may contain such incidental, supplemental,
consequential or transitional provision as the Minister making it considers appropriate.
(13) “The Minister” includes the Northern Ireland department concerned.
Annotations:
Amendments (Textual)
F12
F13
Words in s. 7(9)(a) repealed (19.8.2003) by The Secretary of State for Constitutional Affairs Order
2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(2)
Words in s. 7(9)(a) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary
of State) Order 2005 (S.I. 2005/3429), art. 8, Sch. para. 3,
Modifications etc. (not altering text)
C6
C7
C8
C9
S. 7 amended (2.10.2000) by Regulation of Investigatory Powers Act 2000 (c. 23), ss. 65(2)(a), 83
(with s. 82(3); S.I. 2000/2543, art. 3
S. 7: referred to (11.3.2005) by Prevention of Terrorism Act 2005 ( c. 2), {s. 11(2)}
S. 7(9)(a): functions of the Secretary of State to be exercisable concurrently with the Lord Chancellor
(12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I.
2005/3429), art. 3(2) (with arts. 4, 5)
S. 7(11): functions of the Secretary of State to be exercisable concurrently with the Lord Chancellor
(12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I.
2005/3429), art. 3(2) (with arts. 4, 5)
Marginal Citations
M1
8
1990 c. 41.
Judicial remedies.
(1) In relation to any act (or proposed act) of a public authority which the court finds is
(or would be) unlawful, it may grant such relief or remedy, or make such order, within
its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or
to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances
of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in
question (by that or any other court), and
8
Human Rights Act 1998 (c. 42)
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(b)
the consequences of any decision (of that or any other court) in respect of
that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person
in whose favour it is made.
(4) In determining—
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of
Human Rights in relation to the award of compensation under Article 41 of the
Convention.
(5) A public authority against which damages are awarded is to be treated—
(a) in Scotland, for the purposes of section 3 of the M2Law Reform (Miscellaneous
Provisions) (Scotland) Act 1940 as if the award were made in an action of
damages in which the authority has been found liable in respect of loss or
damage to the person to whom the award is made;
(b) for the purposes of the M3Civil Liability (Contribution) Act 1978 as liable in
respect of damage suffered by the person to whom the award is made.
(6) In this section—
“court” includes a tribunal;
“damages” means damages for an unlawful act of a public authority; and
“unlawful” means unlawful under section 6(1).
Annotations:
Marginal Citations
M2
M3
9
1940 c. 42.
1978 c. 47.
Judicial acts.
(1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only—
(a) by exercising a right of appeal;
(b) on an application (in Scotland a petition) for judicial review; or
(c) in such other forum as may be prescribed by rules.
(2) That does not affect any rule of law which prevents a court from being the subject
of judicial review.
(3) In proceedings under this Act in respect of a judicial act done in good faith, damages
may not be awarded otherwise than to compensate a person to the extent required by
Article 5(5) of the Convention.
(4) An award of damages permitted by subsection (3) is to be made against the Crown; but
no award may be made unless the appropriate person, if not a party to the proceedings,
is joined.
(5) In this section—
“appropriate person” means the Minister responsible for the court
concerned, or a person or government department nominated by him;
Human Rights Act 1998 (c. 42)
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9
“court” includes a tribunal;
“judge” includes a member of a tribunal, a justice of the peace [F14(or, in
Northern Ireland, a lay magistrate)] and a clerk or other officer entitled to
exercise the jurisdiction of a court;
“judicial act” means a judicial act of a court and includes an act done on
the instructions, or on behalf, of a judge; and
“rules” has the same meaning as in section 7(9).
Annotations:
Amendments (Textual)
F14
Words in definition s. 9(5) inserted (N.I.)(1.4.2005) by 2002 c. 26, s. 10(6), Sch. 4 para. 39; S.R.
2005/109, art. 2 Sch.
Remedial action
10
Power to take remedial action.
(1) This section applies if—
(a) a provision of legislation has been declared under section 4 to be incompatible
with a Convention right and, if an appeal lies—
(i) all persons who may appeal have stated in writing that they do not
intend to do so;
(ii) the time for bringing an appeal has expired and no appeal has been
brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned;
or
(b) it appears to a Minister of the Crown or Her Majesty in Council that, having
regard to a finding of the European Court of Human Rights made after the
coming into force of this section in proceedings against the United Kingdom,
a provision of legislation is incompatible with an obligation of the United
Kingdom arising from the Convention.
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding
under this section, he may by order make such amendments to the legislation as he
considers necessary to remove the incompatibility.
(3) If, in the case of subordinate legislation, a Minister of the Crown considers—
(a) that it is necessary to amend the primary legislation under which the
subordinate legislation in question was made, in order to enable the
incompatibility to be removed, and
(b) that there are compelling reasons for proceeding under this section,
he may by order make such amendments to the primary legislation as he considers
necessary.
(4) This section also applies where the provision in question is in subordinate legislation
and has been quashed, or declared invalid, by reason of incompatibility with a
Convention right and the Minister proposes to proceed under paragraph 2(b) of
Schedule 2.
10
Human Rights Act 1998 (c. 42)
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(5) If the legislation is an Order in Council, the power conferred by subsection (2) or (3)
is exercisable by Her Majesty in Council.
(6) In this section “legislation” does not include a Measure of the Church Assembly or of
the General Synod of the Church of England.
(7) Schedule 2 makes further provision about remedial orders.
Other rights and proceedings
11
Safeguard for existing human rights.
A person’s reliance on a Convention right does not restrict—
(a) any other right or freedom conferred on him by or under any law having effect
in any part of the United Kingdom; or
(b) his right to make any claim or bring any proceedings which he could make or
bring apart from sections 7 to 9.
12
Freedom of expression.
(1) This section applies if a court is considering whether to grant any relief which, if
granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made (“the respondent”) is
neither present nor represented, no such relief is to be granted unless the court is
satisfied—
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the
court is satisfied that the applicant is likely to establish that publication should not
be allowed.
(4) The court must have particular regard to the importance of the Convention right
to freedom of expression and, where the proceedings relate to material which the
respondent claims, or which appears to the court, to be journalistic, literary or artistic
material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section—
“court” includes a tribunal; and
“relief” includes any remedy or order (other than in criminal proceedings).
13
Freedom of thought, conscience and religion.
(1) If a court’s determination of any question arising under this Act might affect
the exercise by a religious organisation (itself or its members collectively) of the
Human Rights Act 1998 (c. 42)
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11
Convention right to freedom of thought, conscience and religion, it must have
particular regard to the importance of that right.
(2) In this section “court” includes a tribunal.
Derogations and reservations
14
Derogations.
(1) In this Act “designated derogation” means—
F15
................................
any derogation by the United Kingdom from an Article of the Convention, or of
any protocol to the Convention, which is designated for the purposes of this Act
in an order made by the [F16Secretary of State]
F17
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) If a designated derogation is amended or replaced it ceases to be a designated
derogation.
(4) But subsection (3) does not prevent the [F18Secretary of State] from exercising his
power under subsection (1) F19. . . to make a fresh designation order in respect of the
Article concerned.
(5) The [F20Secretary of State] must by order make such amendments to Schedule 3 as he
considers appropriate to reflect—
(a) any designation order; or
(b) the effect of subsection (3).
(6) A designation order may be made in anticipation of the making by the United Kingdom
of a proposed derogation.
Annotations:
Amendments (Textual)
F15
F16
F17
F18
F19
F20
15
S. 14(1): from “(a)” to “(b)” repealed (1.4.2001) by S.I. 2001/1216, art. 2(a)
Words in s. 14 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
S. 14(2) repealed (1.4.2001) by S.I. 2001/1216, art. 2(b)
Words in s. 14 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
S. 14(4): “(b)” repealed (1.4.2001) by S.I. 2001/1216, art. 2(c)
Words in s. 14 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
Reservations.
(1) In this Act “designated reservation” means—
(a) the United Kingdom’s reservation to Article 2 of the First Protocol to the
Convention; and
12
Human Rights Act 1998 (c. 42)
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(b)
any other reservation by the United Kingdom to an Article of the Convention,
or of any protocol to the Convention, which is designated for the purposes of
this Act in an order made by the [F21Secretary of State] .
(2) The text of the reservation referred to in subsection (1)(a) is set out in Part II of
Schedule 3.
(3) If a designated reservation is withdrawn wholly or in part it ceases to be a designated
reservation.
(4) But subsection (3) does not prevent the [F22Secretary of State] from exercising his
power under subsection (1)(b) to make a fresh designation order in respect of the
Article concerned.
(5) [F23Secretary of State] must by order make such amendments to this Act as he considers
appropriate to reflect—
(a) any designation order; or
(b) the effect of subsection (3).
Annotations:
Amendments (Textual)
F21
F22
F23
16
Words in s. 15 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
Words in s. 15 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
Words in s. 15 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
Period for which designated derogations have effect.
(1) If it has not already been withdrawn by the United Kingdom, a designated derogation
ceases to have effect for the purposes of this Act—
F24
................................
. . ., at the end of the period of five years beginning with the date on which the
order designating it was made.
(2) At any time before the period—
(a) fixed by subsection (1) F25. . ., or
(b) extended by an order under this subsection,
comes to an end, the [F26Secretary of State] may by order extend it by a further period
of five years.
(3) An order under section 14(1) F27. . . ceases to have effect at the end of the period for
consideration, unless a resolution has been passed by each House approving the order.
(4) Subsection (3) does not affect—
(a) anything done in reliance on the order; or
(b) the power to make a fresh order under section 14(1) . . ..
(5) In subsection (3) “period for consideration” means the period of forty days beginning
with the day on which the order was made.
Human Rights Act 1998 (c. 42)
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13
(6) In calculating the period for consideration, no account is to be taken of any time during
which—
(a) Parliament is dissolved or prorogued; or
(b) both Houses are adjourned for more than four days.
(7) If a designated derogation is withdrawn by the United Kingdom, the [F28Secretary of
State] must by order make such amendments to this Act as he considers are required
to reflect that withdrawal.
Annotations:
Amendments (Textual)
F24
F25
F26
F27
F28
17
S. 16(1): words from “(a)” to “any other derogation” repealed (1.4.2001) by S.I. 2001/1216, art. 3(a)
Words in s. 16(2)(a) repealed (1.4.2001) by S.I. 2001/1216, art. 3(b)
Words in s. 16 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
S. 16(3)(4)(b): “(b)” repealed (1.4.2001) by S.I. 2001/1216, art. 3(c)(d)
Words in s. 16 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)
Periodic review of designated reservations.
(1) The appropriate Minister must review the designated reservation referred to in
section 15(1)(a)—
(a) before the end of the period of five years beginning with the date on which
section 1(2) came into force; and
(b) if that designation is still in force, before the end of the period of five years
beginning with the date on which the last report relating to it was laid under
subsection (3).
(2) The appropriate Minister must review each of the other designated reservations (if
any)—
(a) before the end of the period of five years beginning with the date on which
the order designating the reservation first came into force; and
(b) if the designation is still in force, before the end of the period of five years
beginning with the date on which the last report relating to it was laid under
subsection (3).
(3) The Minister conducting a review under this section must prepare a report on the result
of the review and lay a copy of it before each House of Parliament.
Judges of the European Court of Human Rights
18
Appointment to European Court of Human Rights.
(1) In this section “judicial office” means the office of—
(a) Lord Justice of Appeal, Justice of the High Court or Circuit judge, in England
and Wales;
(b) judge of the Court of Session or sheriff, in Scotland;
14
Human Rights Act 1998 (c. 42)
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(c)
Lord Justice of Appeal, judge of the High Court or county court judge, in
Northern Ireland.
(2) The holder of a judicial office may become a judge of the European Court of Human
Rights (“the Court”) without being required to relinquish his office.
(3) But he is not required to perform the duties of his judicial office while he is a judge
of the Court.
(4) In respect of any period during which he is a judge of the Court—
(a) a Lord Justice of Appeal or Justice of the High Court is not to count as a judge
of the relevant court for the purposes of section 2(1) or 4(1) of the [F29Senior
Courts Act 1981](maximum number of judges) nor as a judge of the [F30Senior
Courts] for the purposes of section 12(1) to (6) of that Act (salaries etc.);
(b) a judge of the Court of Session is not to count as a judge of that court for
the purposes of section 1(1) of the M4Court of Session Act 1988 (maximum
number of judges) or of section 9(1)(c) of the M5Administration of Justice Act
1973 (“the 1973 Act”) (salaries etc.);
(c) a Lord Justice of Appeal or judge of the High Court in Northern Ireland is not
to count as a judge of the relevant court for the purposes of section 2(1) or
3(1) of the M6Judicature (Northern Ireland) Act 1978 (maximum number of
judges) nor as a judge of the [F31Court of Judicature] of Northern Ireland for
the purposes of section 9(1)(d) of the 1973 Act (salaries etc.);
(d) a Circuit judge is not to count as such for the purposes of section 18 of the
M7
Courts Act 1971 (salaries etc.);
(e) a sheriff is not to count as such for the purposes of section 14 of the M8Sheriff
Courts (Scotland) Act 1907 (salaries etc.);
(f) a county court judge of Northern Ireland is not to count as such for the
purposes of section 106 of the M9County Courts Act Northern Ireland) 1959
(salaries etc.).
(5) If a sheriff principal is appointed a judge of the Court, section 11(1) of the M10Sheriff
Courts (Scotland) Act 1971 (temporary appointment of sheriff principal) applies,
while he holds that appointment, as if his office is vacant.
(6) Schedule 4 makes provision about judicial pensions in relation to the holder of a
judicial office who serves as a judge of the Court.
(7) The Lord Chancellor or the Secretary of State may by order make such transitional
provision (including, in particular, provision for a temporary increase in the maximum
number of judges) as he considers appropriate in relation to any holder of a judicial
office who has completed his service as a judge of the Court.
[F32(7A) The following paragraphs apply to the making of an order under subsection (7) in
relation to any holder of a judicial office listed in subsection (1)(a)—
(a) before deciding what transitional provision it is appropriate to make, the
person making the order must consult the Lord Chief Justice of England and
Wales;
(b) before making the order, that person must consult the Lord Chief Justice of
England and Wales.
(7B) The following paragraphs apply to the making of an order under subsection (7) in
relation to any holder of a judicial office listed in subsection (1)(c)—
Human Rights Act 1998 (c. 42)
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(a)
(b)
15
before deciding what transitional provision it is appropriate to make, the
person making the order must consult the Lord Chief Justice of Northern
Ireland;
before making the order, that person must consult the Lord Chief Justice of
Northern Ireland.
(7C) The Lord Chief Justice of England and Wales may nominate a judicial office holder
(within the meaning of section 109(4) of the Constitutional Reform Act 2005) to
exercise his functions under this section.
(7D) The Lord Chief Justice of Northern Ireland may nominate any of the following to
exercise his functions under this section—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern
Ireland) Act 2002;
(b) a Lord Justice of Appeal (as defined in section 88 of that Act).]
Annotations:
Amendments (Textual)
F29
F30
F31
F32
Words in s. 18(4)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148,
Sch. 11 para. 4; S.I. 2009/1604, art. 2(d)
Words in s. 18(4)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148,
Sch. 11 para. 4; S.I. 2009/1604, art. 2(d)
Words in s. 18(4)(c) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148,
Sch. 11 para. 6; S.I. 2009/1604, art. 2(d)
S. 18(7A)-(7D) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 148, Sch. 4 para.
278; S.I. 2006/1014, art. 2, Sch. 1 para. 11(v)
Marginal Citations
M4
M5
M6
M7
M8
M9
M10
1988 c. 36.
1973 c. 15.
1978 c. 23.
1971 c. 23.
1907 c. 51.
1959 c. 25 (N.I.).
1971 c. 58.
Parliamentary procedure
19
Statements of compatibility.
(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before
Second Reading of the Bill—
(a) make a statement to the effect that in his view the provisions of the Bill are
compatible with the Convention rights (“a statement of compatibility”); or
(b) make a statement to the effect that although he is unable to make a statement
of compatibility the government nevertheless wishes the House to proceed
with the Bill.
(2) The statement must be in writing and be published in such manner as the Minister
making it considers appropriate.
16
Human Rights Act 1998 (c. 42)
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Supplemental
20
Orders etc. under this Act.
(1) Any power of a Minister of the Crown to make an order under this Act is exercisable
by statutory instrument.
(2) The power of F33...[F34the Lord Chancellor or] the Secretary of State to make rules
(other than rules of court) under section 2(3) or 7(9) is exercisable by statutory
instrument.
(3) Any statutory instrument made under section 14, 15 or 16(7) must be laid before
Parliament.
(4) No order may be made by F35...[F36the Lord Chancellor or] the Secretary of State
under section 1(4), 7(11) or 16(2) unless a draft of the order has been laid before, and
approved by, each House of Parliament.
(5) Any statutory instrument made under section 18(7) or Schedule 4, or to which
subsection (2) applies, shall be subject to annulment in pursuance of a resolution of
either House of Parliament.
(6) The power of a Northern Ireland department to make—
(a) rules under section 2(3)(c) or 7(9)(c), or
(b) an order under section 7(11),
is exercisable by statutory rule for the purposes of the M11Statutory Rules (Northern
Ireland) Order 1979.
(7) Any rules made under section 2(3)(c) or 7(9)(c) shall be subject to negative resolution;
and section 41(6) of the M12Interpretation Act Northern Ireland) 1954 (meaning of
“subject to negative resolution”) shall apply as if the power to make the rules were
conferred by an Act of the Northern Ireland Assembly.
(8) No order may be made by a Northern Ireland department under section 7(11) unless
a draft of the order has been laid before, and approved by, the Northern Ireland
Assembly.
Annotations:
Amendments (Textual)
F33
F34
F35
F36
Words in s. 20(2) repealed (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(2)
Words in s. 20(2) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of
State) Order 2005 (S.I. 2005/3429), art. 8, Sch. para. 3
Words in s. 20(4) repealed (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003
(S. I. 2003/1887), art. 9, Sch. 2 para. 10(2)
Words in s. 20(4) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of
State) Order 2005 (S.I. 2005/3429), art. 8, Sch. para. 3
Marginal Citations
M11 S.I. 1979/1573 (N.I. 12).
M12 1954 c. 33 (N.I.).
Human Rights Act 1998 (c. 42)
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21
17
Interpretation, etc.
(1) In this Act—
“amend” includes repeal and apply (with or without modifications);
“the appropriate Minister” means the Minister of the Crown having charge
of the appropriate authorised government department (within the meaning of
the M13Crown Proceedings Act 1947);
“the Commission” means the European Commission of Human Rights;
“the Convention” means the Convention for the Protection of Human
Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome
on 4th November 1950 as it has effect for the time being in relation to the
United Kingdom;
“declaration of incompatibility” means a declaration under section 4;
“Minister of the Crown” has the same meaning as in the Ministers of the
M14
Crown Act 1975;
“Northern Ireland Minister” includes the First Minister and the deputy First
Minister in Northern Ireland;
“primary legislation” means any—
(a) public general Act;
(b) local and personal Act;
(c) private Act;
(d) Measure of the Church Assembly;
(e) Measure of the General Synod of the Church of England;
(f) Order in Council—
(g) made in exercise of Her Majesty’s Royal Prerogative;
(h) made under section 38(1)(a) of the M15Northern Ireland Constitution Act
1973 or the corresponding provision of the Northern Ireland Act 1998; or
(i) amending an Act of a kind mentioned in paragraph (a), (b) or (c);
and includes an order or other instrument made under primary legislation
(otherwise than by the [F37Welsh Ministers, the First Minister for Wales,
the Counsel General to the Welsh Assembly Government,] a member of
the Scottish Executive, a Northern Ireland Minister or a Northern Ireland
department) to the extent to which it operates to bring one or more provisions
of that legislation into force or amends any primary legislation;
“the First Protocol” means the protocol to the Convention agreed at Paris
on 20th March 1952;
F38
...
“the Eleventh Protocol” means the protocol to the Convention
(restructuring the control machinery established by the Convention) agreed at
Strasbourg on 11th May 1994;
[F39“the Thirteenth Protocol” means the protocol to the Convention
(concerning the abolition of the death penalty in all circumstances) agreed at
Vilnius on 3rd May 2002;]
“remedial order” means an order under section 10;
“subordinate legislation” means any—
(a) Order in Council other than one—
(b) made in exercise of Her Majesty’s Royal Prerogative;
18
Human Rights Act 1998 (c. 42)
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(c) made under section 38(1)(a) of the Northern Ireland Constitution Act
1973 or the corresponding provision of the Northern Ireland Act 1998; or
(d) amending an Act of a kind mentioned in the definition of primary
legislation;
(e) Act of the Scottish Parliament;
(f) [F40Measure of the National Assembly for Wales;
(g) Act of the National Assembly for Wales;]
(h) Act of the Parliament of Northern Ireland;
(i) Measure of the Assembly established under section 1 of the M16Northern
Ireland Assembly Act 1973;
(j) Act of the Northern Ireland Assembly;
(k) order, rules, regulations, scheme, warrant, byelaw or other instrument
made under primary legislation (except to the extent to which it operates
to bring one or more provisions of that legislation into force or amends
any primary legislation);
(l) order, rules, regulations, scheme, warrant, byelaw or other instrument
made under legislation mentioned in paragraph (b), (c), (d) or (e) or made
under an Order in Council applying only to Northern Ireland;
(m) order, rules, regulations, scheme, warrant, byelaw or other instrument
made by a member of the Scottish Executive [F41, Welsh Ministers, the
First Minister for Wales, the Counsel General to the Welsh Assembly
Government,] a Northern Ireland Minister or a Northern Ireland
department in exercise of prerogative or other executive functions of
Her Majesty which are exercisable by such a person on behalf of Her
Majesty;
“transferred matters” has the same meaning as in the Northern Ireland Act
1998; and
“tribunal” means any tribunal in which legal proceedings may be brought.
(2) The references in paragraphs (b) and (c) of section 2(1) to Articles are to Articles of
the Convention as they had effect immediately before the coming into force of the
Eleventh Protocol.
(3) The reference in paragraph (d) of section 2(1) to Article 46 includes a reference to
Articles 32 and 54 of the Convention as they had effect immediately before the coming
into force of the Eleventh Protocol.
(4) The references in section 2(1) to a report or decision of the Commission or a decision of
the Committee of Ministers include references to a report or decision made as provided
by paragraphs 3, 4 and 6 of Article 5 of the Eleventh Protocol (transitional provisions).
(5) F42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Annotations:
Extent Information
E2
For the extent of s. 21 outside the U.K. see s. 22(7)
Amendments (Textual)
F37
Words in the definition of "primary legislation" in s. 21(1) substituted by Government of Wales Act
2006 (c. 32), s. 160(1), Sch. 10 para.56(2) (with Sch. 11 para. 22) the amending provision coming into
force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending
Human Rights Act 1998 (c. 42)
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F38
F39
F40
F41
F42
19
Act, which provides for certain provisions to come into force for specified purposes immediately after
the end of "the initial period" (which ended with the day of the first appointment of a First Minister on
25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.
S. 21(1): definition of "the Sixth Protocol" omitted (22.6.2004) by virtue of The Human Rights Act
1998 (Amendment) Order 2004 (S.I. 2004/1574), art. 2(2)
S. 21(1): definition of "the Thirteenth Protocol" inserted (22.6.2004) by virtue of The Human Rights
Act 1998 (Amendment) Order 2004 (S.I. 2004/1574), art. 2(2)
Words in the definition of "subordinate legislation" in s. 21(1) substituted by Government of Wales Act
2006 (c. 32), s. 160(1), Sch. 10 para.56(3) (with Sch. 11 para. 22) the amending provision coming into
force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending
Act, which provides for certain provisions to come into force for specified purposes immediately after
the end of "the initial period" (which ended with the day of the first appointment of a First Minister on
25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.
Words in the definition of "subordinate legislation" in s. 21(1) substituted by Government of Wales Act
2006 (c. 32), s. 160(1), Sch. 10 para.56(4) (with Sch. 11 para. 22) the amending provision coming into
force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending
Act, which provides for certain provisions to come into force for specified purposes immediately after
the end of "the initial period" (which ended with the day of the first appointment of a First Minister on
25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.
S. 21(5) repealed (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces
Act 2006 (c. 52), ss. 378, 383, Sch. 17; S.I. 2009/812, art. 3 (with transitional provisions in S.I.
2009/1059); S.I. 2009/1167, art. 4
Commencement Information
I1
S. 21 wholly in force at 2.10.2000; s. 21(5) in force at Royal Assent, see s. 22(2)(3); s. 21 in force so
far as not already in force (2.10.2000) by S.I. 2000/1851, art. 2
Marginal Citations
M13
M14
M15
M16
22
1947 c. 44.
1975 c. 26.
1973 c. 36.
1973 c. 17.
Short title, commencement, application and extent.
(1) This Act may be cited as the Human Rights Act 1998.
(2) Sections 18, 20 and 21(5) and this section come into force on the passing of this Act.
(3) The other provisions of this Act come into force on such day as the Secretary of State
may by order appoint; and different days may be appointed for different purposes.
(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the
instigation of a public authority whenever the act in question took place; but otherwise
that subsection does not apply to an act taking place before the coming into force of
that section.
(5) This Act binds the Crown.
(6) This Act extends to Northern Ireland.
(7) F43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Human Rights Act 1998 (c. 42)
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Annotations:
Subordinate Legislation Made
P1
S. 22(3) power partly exercised: 24.11.1998 appointed for specified provisions by S.I. 1998/2882, art.
2
S. 22(3) power fully exercised: 2.10.2000 appointed for remaining provisions by S.I. 2000/1851, art. 2
Amendments (Textual)
F43
S. 22(7) repealed (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces
Act 2006 (c. 52), ss. 378, 383, Sch. 17; S.I. 2009/812, art. 3 (with transitional provisions in S.I.
2009/1059); S.I. 2009/1167, art. 4
21
Human Rights Act 1998 (c. 42)
SCHEDULE 1 – The Articles
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SCHEDULES
SCHEDULE 1
Section 1(3).
THE ARTICLES
PART I
THE CONVENTION
RIGHTS AND FREEDOMS
ARTICLE 2
RIGHT TO LIFE
1
Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law.
2
Deprivation of life shall not be regarded as inflicted in contravention of this Article
when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
ARTICLE 3
PROHIBITION OF TORTURE
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
ARTICLE 4
PROHIBITION OF SLAVERY AND FORCED LABOUR
1
No one shall be held in slavery or servitude.
2
No one shall be required to perform forced or compulsory labour.
3
For the purpose of this Article the term “forced or compulsory labour” shall not
include:
(a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of this Convention or during
conditional release from such detention;
22
Human Rights Act 1998 (c. 42)
SCHEDULE 1 – The Articles
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(b)
(c)
(d)
any service of a military character or, in case of conscientious objectors in
countries where they are recognised, service exacted instead of compulsory
military service;
any service exacted in case of an emergency or calamity threatening the
life or well-being of the community;
any work or service which forms part of normal civic obligations.
ARTICLE 5
RIGHT TO LIBERTY AND SECURITY
1
Everyone has the right to liberty and security of person. No one shall be deprived of
his liberty save in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the
lawful order of a court or in order to secure the fulfilment of any obligation
prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable suspicion
of having committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having done
so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before
the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts
or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
2
Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.
3
Everyone arrested or detained in accordance with the provisions of paragraph 1(c)
of this Article shall be brought promptly before a judge or other officer authorised
by law to exercise judicial power and shall be entitled to trial within a reasonable
time or to release pending trial. Release may be conditioned by guarantees to appear
for trial.
4
Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.
5
Everyone who has been the victim of arrest or detention in contravention of the
provisions of this Article shall have an enforceable right to compensation.
Human Rights Act 1998 (c. 42)
SCHEDULE 1 – The Articles
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23
ARTICLE 6
RIGHT TO A FAIR TRIAL
1
In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. Judgment shall
be pronounced publicly but the press and public may be excluded from all or part of
the trial in the interest of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice.
2
Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
3
Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail,
of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given it
free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak
the language used in court.
ARTICLE 7
NO PUNISHMENT WITHOUT LAW
1
No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the criminal offence was committed.
2
This Article shall not prejudice the trial and punishment of any person for any act
or omission which, at the time when it was committed, was criminal according to
the general principles of law recognised by civilised nations.
ARTICLE 8
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1
Everyone has the right to respect for his private and family life, his home and his
correspondence.
2
There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of
24
Human Rights Act 1998 (c. 42)
SCHEDULE 1 – The Articles
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the country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
ARTICLE 9
FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
1
Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief,
in worship, teaching, practice and observance.
2
Freedom to manifest one’s religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a democratic society in
the interests of public safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others.
ARTICLE 10
FREEDOM OF EXPRESSION
1
Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent States
from requiring the licensing of broadcasting, television or cinema enterprises.
2
The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.
ARTICLE 11
FREEDOM OF ASSEMBLY AND ASSOCIATION
1
Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for the
protection of his interests.
2
No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of
others. This Article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of the
administration of the State.
Human Rights Act 1998 (c. 42)
SCHEDULE 1 – The Articles
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25
ARTICLE 12
RIGHT TO MARRY
Men and women of marriageable age have the right to marry and to found a family, according
to the national laws governing the exercise of this right.
ARTICLE 14
PROHIBITION OF DISCRIMINATION
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.
ARTICLE 16
RESTRICTIONS ON POLITICAL ACTIVITY OF ALIENS
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties
from imposing restrictions on the political activity of aliens.
ARTICLE 17
PROHIBITION OF ABUSE OF RIGHTS
Nothing in this Convention may be interpreted as implying for any State, group or person any
right to engage in any activity or perform any act aimed at the destruction of any of the rights
and freedoms set forth herein or at their limitation to a greater extent than is provided for in
the Convention.
ARTICLE 18
LIMITATION ON USE OF RESTRICTIONS ON RIGHTS
The restrictions permitted under this Convention to the said rights and freedoms shall not be
applied for any purpose other than those for which they have been prescribed.
26
Human Rights Act 1998 (c. 42)
SCHEDULE 1 – The Articles
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PART II
THE FIRST PROTOCOL
ARTICLE 1
PROTECTION OF PROPERTY
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce
such laws as it deems necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or penalties.
ARTICLE 2
RIGHT TO EDUCATION
No person shall be denied the right to education. In the exercise of any functions which it
assumes in relation to education and to teaching, the State shall respect the right of parents to
ensure such education and teaching in conformity with their own religious and philosophical
convictions.
ARTICLE 3
RIGHT TO FREE ELECTIONS
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret
ballot, under conditions which will ensure the free expression of the opinion of the people in
the choice of the legislature.
[F44PART 3
ARTICLE 1 OF THE THIRTEENTH PROTOCOL
ABOLITION OF THE DEATH PENALTY
Annotations:
Amendments (Textual)
F44
Sch. 1 Pt. 3 substituted (22.6.2004) by The Human Rights Act 1998 (Amendment) Order 2004 (S.I.
2004/1574), art. 2(3)
The death penalty shall be abolished. No one shall be condemned to such penalty or executed.]
Human Rights Act 1998 (c. 42)
SCHEDULE 2 – Remedial Orders
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27
PART III
THE SIXTH PROTOCOL
................................
SCHEDULE 2
Section 10.
REMEDIAL ORDERS
Orders
1
(1) A remedial order may—
(a) contain such incidental, supplemental, consequential or transitional
provision as the person making it considers appropriate;
(b) be made so as to have effect from a date earlier than that on which it is made;
(c) make provision for the delegation of specific functions;
(d) make different provision for different cases.
(2) The power conferred by sub-paragraph (1)(a) includes—
(a) power to amend primary legislation (including primary legislation other than
that which contains the incompatible provision); and
(b) power to amend or revoke subordinate legislation (including subordinate
legislation other than that which contains the incompatible provision).
(3) A remedial order may be made so as to have the same extent as the legislation which
it affects.
(4) No person is to be guilty of an offence solely as a result of the retrospective effect
of a remedial order.
Procedure
2
No remedial order may be made unless—
(a) a draft of the order has been approved by a resolution of each House of
Parliament made after the end of the period of 60 days beginning with the
day on which the draft was laid; or
(b) it is declared in the order that it appears to the person making it that, because
of the urgency of the matter, it is necessary to make the order without a
draft being so approved.
Orders laid in draft
3
(1) No draft may be laid under paragraph 2(a) unless—
(a) the person proposing to make the order has laid before Parliament a
document which contains a draft of the proposed order and the required
information; and
(b) the period of 60 days, beginning with the day on which the document
required by this sub-paragraph was laid, has ended.
28
Human Rights Act 1998 (c. 42)
SCHEDULE 2 – Remedial Orders
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(2) If representations have been made during that period, the draft laid under paragraph
2(a) must be accompanied by a statement containing—
(a) a summary of the representations; and
(b) if, as a result of the representations, the proposed order has been changed,
details of the changes.
Urgent cases
4
(1) If a remedial order (“the original order”) is made without being approved in draft,
the person making it must lay it before Parliament, accompanied by the required
information, after it is made.
(2) If representations have been made during the period of 60 days beginning with the
day on which the original order was made, the person making it must (after the end
of that period) lay before Parliament a statement containing—
(a) a summary of the representations; and
(b) if, as a result of the representations, he considers it appropriate to make
changes to the original order, details of the changes.
(3) If sub-paragraph (2)(b) applies, the person making the statement must—
(a) make a further remedial order replacing the original order; and
(b) lay the replacement order before Parliament.
(4) If, at the end of the period of 120 days beginning with the day on which the original
order was made, a resolution has not been passed by each House approving the
original or replacement order, the order ceases to have effect (but without that
affecting anything previously done under either order or the power to make a fresh
remedial order).
Definitions
5
In this Schedule—
“representations” means representations about a remedial order (or
proposed remedial order) made to the person making (or proposing to make)
it and includes any relevant Parliamentary report or resolution; and
“required information” means—
(a) an explanation of the incompatibility which the order (or proposed
order) seeks to remove, including particulars of the relevant
declaration, finding or order; and
(b) a statement of the reasons for proceeding under section 10 and for
making an order in those terms.
Calculating periods
6
In calculating any period for the purposes of this Schedule, no account is to be taken
of any time during which—
(a) Parliament is dissolved or prorogued; or
(b) both Houses are adjourned for more than four days.
[F487 (1) This paragraph applies in relation to–
Human Rights Act 1998 (c. 42)
SCHEDULE 3 – Derogation and Reservation
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(a)
(b)
29
any remedial order made, and any draft of such an order proposed to be
made,–
(i) by the Scottish Ministers; or
(ii) within devolved competence (within the meaning of the Scotland
Act 1998) by Her Majesty in Council; and
any document or statement to be laid in connection with such an order (or
proposed order).
(2) This Schedule has effect in relation to any such order (or proposed order), document
or statement subject to the following modifications.
(3) Any reference to Parliament, each House of Parliament or both Houses of Parliament
shall be construed as a reference to the Scottish Parliament.
(4) Paragraph 6 does not apply and instead, in calculating any period for the purposes
of this Schedule, no account is to be taken of any time during which the Scottish
Parliament is dissolved or is in recess for more than four days.]
Annotations:
Amendments (Textual)
F48
Sch. 2 para. 7 inserted (27.7.2000) by S.I. 2000/2040, art. 2, Sch. Pt. I para. 21 (with art. 3)
SCHEDULE 3
DEROGATION AND RESERVATION
F49
................................
PART I
Annotations:
Amendments (Textual)
F49
Sch. 3 Pt. I repealed (1.4.2001) by S.I. 2001/1216, art. 4
F50
PART I
DEROGATION
................................
Sections 14 and 15.
30
Human Rights Act 1998 (c. 42)
SCHEDULE 4 – Judicial Pensions
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Annotations:
Amendments (Textual)
F50
Sch. 3 Pt. I repealed (8.4.2005) by The Human Rights Act 1998 (Amendment) Order 2005 (S.I.
2005/1071), art. 2
PART II
RESERVATION
At the time of signing the present (First) Protocol, I declare that, in view of certain provisions
of the Education Acts in the United Kingdom, the principle affirmed in the second sentence of
Article 2 is accepted by the United Kingdom only so far as it is compatible with the provision
of efficient instruction and training, and the avoidance of unreasonable public expenditure.
Dated 20 March 1952
Made by the United Kingdom Permanent Representative to the Council of Europe.
SCHEDULE 4
Section 18(6).
JUDICIAL PENSIONS
Duty to make orders about pensions
1
(1) The appropriate Minister must by order make provision with respect to pensions
payable to or in respect of any holder of a judicial office who serves as an ECHR
judge.
(2) A pensions order must include such provision as the Minister making it considers is
necessary to secure that—
(a) an ECHR judge who was, immediately before his appointment as an ECHR
judge, a member of a judicial pension scheme is entitled to remain as a
member of that scheme;
(b) the terms on which he remains a member of the scheme are those which
would have been applicable had he not been appointed as an ECHR judge;
and
(c) entitlement to benefits payable in accordance with the scheme continues to
be determined as if, while serving as an ECHR judge, his salary was that
which would (but for section 18(4)) have been payable to him in respect of
his continuing service as the holder of his judicial office.
Contributions
2
A pensions order may, in particular, make provision—
(a) for any contributions which are payable by a person who remains a member
of a scheme as a result of the order, and which would otherwise be payable
by deduction from his salary, to be made otherwise than by deduction from
his salary as an ECHR judge; and
Human Rights Act 1998 (c. 42)
SCHEDULE 4 – Judicial Pensions
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(b)
31
for such contributions to be collected in such manner as may be determined
by the administrators of the scheme.
Amendments of other enactments
3
A pensions order may amend any provision of, or made under, a pensions Act
in such manner and to such extent as the Minister making the order considers
necessary or expedient to ensure the proper administration of any scheme to which
it relates.
Definitions
4
In this Schedule—
“appropriate Minister” means—
(a) in relation to any judicial office whose jurisdiction is exercisable
exclusively in relation to Scotland, the Secretary of State; and
(b) otherwise, the Lord Chancellor;
“ECHR judge” means the holder of a judicial office who is serving as a
judge of the Court;
“judicial pension scheme” means a scheme established by and in
accordance with a pensions Act;
“pensions Act” means—
(a) the M17County Courts Act Northern Ireland) 1959;
(b) the M18Sheriffs’ Pensions (Scotland) Act 1961;
(c) the M19Judicial Pensions Act 1981; or
(d) the M20Judicial Pensions and Retirement Act 1993; and
“pensions order” means an order made under paragraph 1.
Annotations:
Marginal Citations
M17
M18
M19
M20
1959 c. 25 (N.I.).
1961 c. 42.
1981 c. 20.
1993 c. 8.
32
Human Rights Act 1998 (c. 42)
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and are referenced with annotations.
Commencement Orders yet to be applied to the Human Rights Act 1998:
Commencement Orders bringing legislation that affects this Act into force:
–
S.I. 2006/1014 art. 2(a) Sch. 1 para. 11(v) commences (2005 c. 4)
–
S.I. 2007/1897 art. 2(1) commences (2005 c. 9)
–
S.I. 2009/812 art. 3(a)(b) commences (2006 c. 52)
–
S.I. 2009/1604 art. 2 commences (2005 c. 4)