The Report of the Commission on a UK Bill of Rights: a Rorschach test?
The Commission on a Bill of Rights has now reported: A UK Bill of Rights: the Choice Before Us.
It found that there was a ‘strong argument’ for a UK Bill of Rights to ‘build on’ UK obligations
under the ECHR.
But its measured conclusion should be read against the evidence if offers of a deeply polarised
political climate for human rights, and of the related risk that an attempt to strengthen
protection by way of a Bill of Rights would have the opposite effect.
Established in 2011, the Commission’s remit was to ‘investigate the creation of a UK Bill of
Rights that incorporates and builds on our obligation under the ECHR, ensures that these rights
continue to be enshrined in UK law, and protects and extends our liberties.’ This mandate then
became, in effect, a rorschach test revealing very different perceptions of the UK’s human rights
system – the Human Rights Act, the European Convention and the Strasbourg Court – within
the Commission, in Scotland, Wales and Northern Ireland, and among organisations and
individuals.
The report lucidly traces the history of UK human rights law, including the complex
constitutional arrangements created by devolution. It notes that most Council of Europe
members have national bills of rights which often protect rights to a similar or greater degree
than the ECHR, and have more public ownership than the HRA. It describes UK influence in the
drafting of the ECHR, slow engagement with the Strasbourg system, eventual domestication of
the Convention through the HRA, and the post 2000 consensus on the need for a Bill of Rights,
which was supported by the three main parties and by many civil liberties groups.
It then describes changing attitudes and the breakdown of that consensus, quoting one
consultation comment that the Bill of Rights idea had come to be supported by ‘a false
coalition of two polarised camps’; one would expand the scope of the ECHR, while the other
would restrict it. Both would ‘scrap the HRA’, but for opposite reasons; the expansion model
could even become a ‘trojan horse’ for restriction.
To the Commission’s evident surprise, it found little interest in a UK Bill of Rights in Scotland,
Wales and Northern Ireland – seen as an English project – or criticism of the Convention or the
Strasbourg court. But there were very serious objections to any action by Westminster which
would fly in the face of devolved rights protections under the Good Friday Agreement, or a
future Scottish referendum. That this comes close to being a political deal breaker is tacitly
acknowledged in the Commission’s conclusion that any future debate on a UK Bill should be
‘acutely sensitive’ to issues of devolution.
At the start, there was criticism of the nine members: all appointed by the two Coalition parties,
all white, and all lawyers except the chair, with only a single woman. But in fact social
homogeneity masked deep differences. In the end, members could agree only that the ‘idea of
a Bill of Rights’ should not be finally rejected ‘at this stage’.
A majority went further, supporting a UK Bill which would incorporate and build on all UK
obligations under the ECHR, provide no less protection than the HRA and be written in language
reflecting the UK’s distinctive heritage in order to attract ownership and legitimacy.
Two members dissented : the majority position could be used to ‘decouple’ the UK from the
ECHR, and ran counter to views expressed by a clear majority of those consulted, who
supported retention of the HRA, and opposed a Bill of Rights. It was also premature given UK
moves towards a federal structure. Some of the majority saw a UK Bill as a convenient means
to ‘cast Europe adrift’, reduce rights, and return to the ‘delusional idyll of an earlier age of
sovereign authority’ unconstrained by treaty obligations.
Strong stuff, but three members of the majority have set out different personal positions. As
the report was published, two complained in the press that the Commission’s terms of
reference assumed continued adherence to the ECHR, arguing that the HRA duty on UK courts
to apply Strasbourg’s ‘judicially creative jurisprudence’ had served to undermine human rights.
A draft Bill by another member, annexed to the report, makes rights depend on nationality –
all for British citizens, less for EU nationals, and still less for others. Even before the Commission
completed its work one member resigned, saying it was ignoring sovereignty issues and had
been ‘hijacked by the Liberal Democrats and the grandees of the human rights culture’.
So what can usefully be taken from this difficult exercise? First, the substantive sections of the
report set out clearly and dispassionately the legal history of human rights in the UK, the
international and European human rights systems, the status of bills of rights in other countries,
and the UK rights legislation and infrastructure – including the exemplary Parliamentary Joint
Committee on Human Rights – which has been put in place since 1998. It deals well with
constitutional issues and devolution. Anyone seeking a balanced defence and apologia for the
UK status quo can find it in Lord Lester’s brief Personal Statement.
Whatever the reality – as opposed to media perceptions – of a public ownership deficit, the
consultation showed wide support for the Act as, in effect, a Bill of Rights. Responses came not
only from civil liberties groups and lawyers, but from the most vulnerable, including older
persons, patients, the blind, the disabled, roma. The Royal College of Nursing spoke of the
HRA’s value in ensuring the dignity of patients. MacMillan Cancer Support wrote of the ‘crucial’
protection it provides for privacy and family, and against inhuman and degrading treatment, in
the context of cancer care.
Most importantly, the report makes clear that this is not a green light for action towards a UK
Bill of Rights, but rather a contribution to a continuing national debate.
Stefanie Grant, Harrison Grant