The Commission on a Bill of Rights came out with its report 21 months into the making, but the government is expected to issue no response to it. Amy Williams welcomes this result but felt the commissioners in the majority could have done better by highlighting their disagreements, in particular over the UK’s European Convention on Human Rights (ECHR) membership and the universal application of human rights.
When it comes to human rights protection in the UK, the two Coalition parties are sorely at odds. In their respective 2010 General Election manifestos, the Liberal Democrats committed to protecting the Human Rights Act (HRA) whilst the Conservatives pledged to scrap the HRA and replace it with a UK Bill of Rights. Cue the establishment of a Commission on a Bill of Rights “to investigate the creation of a UK Bill of Rights.” Viewed as long grass territory during the 21 months it was deliberating, the Commission comprised an equal number of Conservative and Liberal Democrat QC appointees. On 18 December of last year, the esteemed lawyers published their findings. On 22 January, we learned that the government will issue no formal response to the report. Somewhat counter-intuitively, there may be reason to welcome this result.
The nine Commissioners did not reach a consensus in their findings. A majority report, to which seven of the Commissioners, including the Chair (retired civil servant Sir Leigh Lewis KCB) signed up, concluded that “there is a strong argument in favour of a UK Bill of Rights”. They cite “the lack of ‘ownership’ by the public” of our current human rights framework, namely the Human Rights Act, as “the most powerful argument for a new constitutional instrument.” It is certainly the case that there is no shortage of media and political hostility to the HRA.
Yet the minority report, authored by Baroness Kennedy of the Shaws QC and Philippe Sands QC, states that time is not ripe for a new UK Bill of Rights. Three reasons are offered in support of this assertion: (a) the devolution arrangements in the UK, into which the HRA is successfully embedded, are potentially about to undergo significant change (post-Scottish referendum) (b) the majority of respondents to the Commission’s consultation support the HRA as the UK’s Bill of Rights and (c) for some Commissioners, a Bill of Rights would be a means to decoupling the connection between the United Kingdom and the European Convention on Human Rights (ECHR) – the HRA includes most of the rights in the ECHR and instructs UK judges to ‘take into account’ the case law of the European Court of Human Rights.
In a telling phrase in one of the eight ‘individual papers from members’ contained within the report, Kennedy and Sands write: “It is impossible to speak of principle when the true purport is not being addressed explicitly and would include, for some at least, a reduction of rights.” Are the dissenters right to dismiss the ‘rebranding’ exercise promoted by the ‘majority Commissioners’ as a Trojan horse for weaker rights protection?
A 3-way split, not two
Although presented as a majority/minority split, the report articulates at least three differing positions on human rights protection in the UK. Kennedy and Sands make their ‘the time is not ripe’ position clear, as outlined above. But within the majority group, there are those, on the one hand, who advocate continued commitment to the UK’s obligations under the ECHR and those, on the other, who take an almost opposing view, revealed in their respective individual papers. This is in spite of the Commission’s terms of reference requiring the Commissioners to investigate the creation of a “UK Bill of Rights that incorporates and builds on all our obligations under the ECHR.”
Two of the individual papers draw our attention to the three Commissioners in this ‘anti-ECHR’ camp. In a paper entitled ‘Unfinished Business’, Jonathan Fisher QC and Lord Faulks QC advocate withdrawal from the ECHR unless there is further reform of the European Court of Human Rights (which appears to mean unless there is significantly less ‘interference’ than the ten cases in which the UK was found in breach of the ECHR in 2012) or unless the UK renegotiates its membership of the Convention to exit from the Court (made impossible byProtocol 11). The tenor of the paper makes clear that Fisher and Faulks envisage withdrawal as a real possibility.
In his individual paper Martin Howe QC offers a draft UK Bill of Rights, containing clauses that are, on the face of it, wholly incompatible with the ECHR. Howe proposes different levels of rights protection for different categories of person (UK citizen, EU and non-EU citizens), in distinct opposition to the ‘everyone’ to whom the rights in the ECHR apply. And his clause on the justification for restricting rights involves taking into account the fulfilment of individual responsibilities, including “for providing as permitted by his or her abilities and circumstances for self and family.” Failing to provide for your family is not a recognised ground for restricting universal human rights, notwithstanding the restrictions on certain rights permitted in the interests of factors like national security or the economic well-being of the country.
Arguably, the seven majority Commissioners sacrificed honesty in favour of unity. Rather than highlighting genuine areas of disagreement, in particular over the UK’s ECHR membership and the universal application of human rights, these authors chose to shelter behind a proposed ‘UK Bill of Rights’ in the hope that the measure will be populated with their very different visions once the time comes to draft such a Bill. The government’s silence in response to the report can therefore be welcomed if it reflects the realisation that berating the European Court of Human Rights and human rights protection for unpopular groups on the one hand, whilst promising a UK Bill of Rights that ‘builds on all our obligations under the ECHR’ on the other, simply does not add up.
An edited version of this blog first appeared on the UK Human Rights Blog.
Note: This article gives the views of the author, and not the position of the British Politics and Policy blog, nor of the London School of Economics. Please read our comments policy before posting.
Amy Williams is research assistant on the Human Rights Futures Project at the London School of Economics. She conducted research for the Commission on a Bill of Rights.