As the Commission on a Bill of Rights approaches the deadline for reporting to the Government, a further consultation paper published on 11 July asks fundamental questions about the possible form of a UK Bill of Rights, but is it too much, too late?
In March 2011, the Ministry of Justice launched the independent Commission with, among others, the following Terms of Reference:
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.
In August last year, the Commission kicked off the consultation process with a “discussion paper” entitled “Do we need a UK Bill of Rights?” Despite being somewhat lacking in detail (it only contained four, very general questions) the paper had elicited over 900 responses by the time the consultation period ended in November 2011, including from the Law Society, Liberty, the Children’s Commission, the University of Cambridge Faculty of Law, and the British Institute of Human Rights.
Now, five months before the Commission is due to report to the Government, it has published a further consultation document entitled, with no possibility of criticism for inaccuracy, “A second consultation”. This time, the consultation, which closes in September 2012, sets out 15 questions. It seeks views on topics such as:
- how a UK bill of Rights should interact with the European Convention on Human Rights and the Human Rights Act 1998;
- possible additional rights;
- the creation of “responsibilities” to sit alongside the rights;
- the possibility of modifying the current duty to take relevant Strasbourg case law “into account”;
- whether a UK Bill of Rights should seek to give guidance on the way in which certain rights should be balanced against each other, with express reference to article 8 (privacy) and article 10 (freedom of expression); and
- the giving of a new power to the court to declare statutes of the UK Parliament invalid and unenforceable.
These are fundamental questions that sit uncomfortably in a consultation document published so close to the intended end of the Commission’s lifetime. It certainly seems possible that the current deadline will be extended, and that this consultation is being used to buy the necessary time to justify that extension. In fact, most of the questions in the current consultation fall within the scope of the broader questions set out in the initial consultation. It is hard to see, for example, how someone who has already provided a full response to the question, “Do you think we need a UK Bill of Rights?” could now have much more to say in answer to the first question of the new consultation, which starts off asking, “What do you think would be the advantages and disadvantages of a UK bill of Rights? Do you think there are alternatives…?” However, it would certainly have been helpful to provide consultees with the more detailed questions and considerations from the beginning of the process.
The new consultation document expressly states that any views put forward in response to the first consultation have already been taken into account, and do not need to be resubmitted. However, that has not prevented familiar criticism from the press from resurfacing, in particular in response to the idea of possible additional rights (these include: a right to equality; a right to administrative justice; a right to trial by jury; rights in criminal and civil justice; rights for victims; socio-economic rights; children’s rights; and environmental rights). The socio-economic rights section of the consultation, for example, has prompted the Daily Express to refer to the “scroungers’ charter” and The Sun to claim, that the consultation includes “Government plans to give people a human right to BENEFITS”.
While the content of a UK Bill of Rights is always likely to lead to dramatic headlines, and while the questions currently being considered are of fundamental importance, it remains to be seen how quickly or easily any dramatic headway will be now be made, given that this further consultation has been published at such a late stage in the Commission’s two-year consideration of the question, and when one consultation process has already been completed.
17 July 2012
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