The case for the Human Rights Act part 1 of 3 responses to the commission on a bill of rights: hra plus not minus



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Timed


Any process should have a clear timeframe including a period to build momentum. It should not be indeterminate.

Symbolic


The process should be suitably ambitious for the undertaking of a constitutional enterprise. A Bill of Rights that aspires to last for generations requires a process that is compelling to the public.

Designed to do no harm


The process should be adequately resourced and there should be a political commitment to act on the outcome of consultation.

Respectful of the devolution settlements


Choice should reside with the devolved assemblies and the process should respect their competency and self-determination.

Policy implications

Pre-conditions for engagement


The principles stated above are, to a degree, interdependent. However, the principle of non-regression is of a higher order. Without an unequivocal guarantee that the purpose of a Bill of Rights process is to augment international standards and to maintain their incorporation in domestic law, the other principles are likely to appear immaterial. We suggest that any actor concerned with the protection and promotion of human rights would be bound to reject a process predicated on regression in terms of formal endorsement or engagement.

The corollary of this is that any future government must provide (and non-governmental actors should demand) an unambiguous   and public   statement of intent and terms of reference for the consultation process, along with clear procedural commitments to act on the outcome of consultation within the stated parameters.


Certifying non-regression


Subject to these assurances, any future government should establish (and actors concerned with the protection and promotion of human rights should advocate for) an independent committee of experts, who might be appointed on a cross-party basis, to provide a ‘kitemark’ throughout the process that the principle of non-regression is being upheld.

Designing process to produce an outcome with democratic legitimacy


Any future government should, drawing from precedents in other jurisdictions, establish an independent body to run the consultation process. Contingent upon the assurances sought above, actors concerned with the protection and promotion of human rights should advocate for a consultative process that is run independently of government and designed to engender public trust.

The process must also be transparent: actors concerned with the protection and promotion of human rights should influence and monitor the process to ensure that any future government does not ‘pick and mix’ from available methodologies in order to manufacture apparent consensus behind measures which would not, in fact, have democratic legitimacy.


Influencing the terms of debate: a concordat


Actors concerned with the protection and promotion of human rights should advocate for a concordat that would bind all parties that signed it to certain rules of engagement; principally, an agreement not to use language or bring stories into the public domain that knowingly distort the purported impact of human rights and the HRA. This would help to ensure that all parties commit themselves to a process which is avowedly educative and non-partisan and does not trade in myths or seek to use the Bill of Rights as a proxy for unrelated issues.

Devolution


Actors concerned with the protection and promotion of human rights should champion the principle that choice should reside with the devolved assemblies and that the process of creating a UK Bill of Rights should respect their competency and self-determination. It is imperative that those actors with appropriate expertise and authority highlight the legal, constitutional and political implications of devolution for any decision to amend or repeal the HRA and/or to enact a UK or ‘British’ Bill of Rights.

The Commission believes that the same principles and policy implications apply today in relation to this consultation process on a Bill of Rights. The Commission therefore calls on CBR to take them into account in conducting its consultation and in its final report.



1 Winston S Churchill, Complete Speeches, 1897-1963, R.R.James (ed), 1974, pp7635-9.

2 House of Lords, Second Reading, The Lord Chancellor (Lord Irvine), Official Report, House of Lords, 3 November 1997, vol 582 col 1227.

3 The rights under the European Convention on Human Rights.

4 Section 11 of the Equality Act 2006

5 These provide the requirements for effective NHRIs:

6 HRA Plus: Human Rights for 21st century Britain, March 2010, http://www.equalityhumanrights.com/legal-and-policy/bill-of-rights/our-response-to-the-green-paper/

7 Developing a Bill of Rights for the UK, Alice Donald with the assistance of Philip Leach and Andrew Puddephatt, Global Partners and Associates, London Metropolitan University, March 2010, http://www.equalityhumanrights.com/uploaded_files/research/developing_a_bill_of_rights_for_the_uk_report_51.pdf

8 HRA Plus: Human Rights for 21st century Britain, March 2010, page 5.

9 Habeas corpus links to the article 5 right to liberty as it is a legal action which enables a prisoner to be released where they have been unlawfully detained.

10 This was a predecessor to similar future provisions on torture, inhumane and degrading treatment in Bills of Rights such as article 3 of the European Convention on Human Rights.

11 Thomas Paine, On the Rights of Man 1792.

12 Oxford: Oxford University Press, 1869.

13 Mary Wollstonecraft, A Vindication of the Rights of Woman, 1792. Her earlier work, A Vindication of the Rights of Men (1790), argued against the slave trade.

14 Blackstone, Commentaries on the Laws of England, 1765-1769.

15 Zurich 19 September 1946, http://assembly.coe.int/Main.asp?link=/AboutUs/zurich_e.htm

16 Lord Scarman, English Law—The New Dimension, Hamlyn Lectures, 26th Series (London: Stevens, 1974).

17 Francesca Klug, Human Rights don't belong to political parties, Guardian, 2 February 2010.

18 Ibid, The Dilemma of Democracy, 1978

19 House of Commons Second reading. Official report, 16 February 1998, vol 307 col 769.

20 Smith and Grady v UK (1999) 29 EHRR 493

21 Professor AV Dicey: Introduction to the Law of the Constitution, 1885.

22 See for example the models for entrenchment of human rights in the United States, Germany and France.

23 Section 3 Human Rights Act

24 Section 4 Human Rights Act

25 ‘A Bill of Rights for the UK?’, Joint Committee on Human Rights, 29th report, session 2007-08

26 Ibid paragraph 211-218.

27 Review of the Implementation of the Human Rights Act, July 2006, Department for Constitutional Affairs.

28 Rebalancing the criminal justice system in favour of the law-abiding majority. Cutting crime, reducing reoffending and protecting the public, Home Office July 2006.

29 The Human Rights Act: the DCA and the Home Office Reviews Joint Committee on Human Rights, 32nd report of session 2005-06

30 Such as statements of compatibility under section 19 of the Human Rights Act.

31 The Human Rights Act: the DCA and the Home Office Reviews Joint Committee on Human Rights, 32nd report of session 2005-06

32 Ibid paragraph 100.

33 Rebalancing the criminal justice system in favour of the law-abiding majority. Cutting crime, reducing reoffending and protecting the public, Home Office July 2006. page 4.

34 The Human Rights Act: the DCA and the Home Office Reviews Joint Committee on Human Rights, 32nd report of session 2005-06, paragraph 101.

35 Human Rights Inquiry, Report of the Equality and Human Rights Commission, June 2009, page 13.

36 In total 2,855 people provided evidence to the Inquiry between April and December 2008. Ibid page 15. The Inquiry comprised two phases: firstly an analytical literature review on the implementation of the Human Rights Act over the last decade; and secondly by gathering evidence directly from the public.

37 Chapter 2, section 1.0, Human Rights Inquiry Report.

38 Chapter 3, section 2.0, Ibid.

39 Chapter 4, section 5.0, Ibid.

40 Chapter 3, section 3.0 Ibid.

41 Chapter 3, section 2.0; Chapter 3, section 3.1 Ibid.

42 Chapter 3, section 3.5 Ibid.

43 Chapter 5, section 2.1-2.3 Ibid.

44 Chapter 5, section 2.1 Ibid.

45 Chapter 6, section 4.3 Ibid.

46 Chapter 4, section 11 Ibid.

47 Irish Traveller Movement, Call for evidence response; Sheffield Law Centre, Call for Evidence response; East Midlands Group evidence session.

48 Chapter 6, section 9.3.

49 Human Rights at Home: guidance for social housing providers, Equality and Human Rights Commission, 2011, http://www.equalityhumanrights.com/uploaded_files/humanrights/human_rights_at_home.pdf

50 The European Commission of Human Rights was formerly the filtering body responsible for hearing all individual complaints under the European Convention on Human Rights (‘ECHR’). In November 1998, following the adoption of Protocol 11 to the Convention, the Court was restructured and the Commission’s functions were folded into those of the Court.

51 The Committee of Ministers of the Council of Europe is made up of the foreign ministers of all the Council of Europe member states, and is responsible under the Convention for the enforcement of the Court’s judgments: see article 46(2) ECHR.

52 See e.g. section 2(1) of the 1973 Act: ‘(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly’.

53 section 2(4) European Communities Act 1972

54 [1991] 1 All ER 70 ECJ Case C-213/89

55 The Parliamentary Secretary (LCD) House of Commons Committee Stage Official Report 3 June 1998 vol. 313 col. 404

56 Hansard House of Lord Debates, 18 November 1997, col 511, amendment 9.

57 Hansard, House of Lords L Debates, 18 November 1997, col 512.

58 See Article 46 ECHR: ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties’.

59 Hansards House of Lords Debates, 18 November 1997, col 514.

60 Ibid.

61 Ibid, col 515.

62 Ibid.

63 Ibid.

64 1997 Labour Party Manifesto, emphasis added.

65 ‘Rights Brought Home: The Human Rights Bill’ (Cm 3782, October 1997), para 1.14, emphasis added.

66 Ibid, para 2.4. This led some to predict that section 2 of the HRA would enable courts in the UK to develop the Convention rights in Schedule 1 of the Act as free-standing rights: ‘[It would] be open to national courts to develop a jurisprudence under the Convention which may be more generous to applicants than that dispensed in Strasbourg, while remaining broadly consistent with it’ (Beatson and Duffy, Human Rights: The 1998 Act and the European Convention (Sweet & Maxwell: 2000) at p 20). It is worth noting, however, that the 1997 manifesto speaks only of Parliament enhancing rights, rather than the courts themselves.

67 [2000] 29 EHRR 245.

68[(2002] 34 EHRR 3

69 R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46 at para 18 per Lord Bingham.

70 [2004] UKHL 26 at para 20. Emphasis added.

71 The term ‘mirror principle’ originates in J Lewis, ‘The European Ceiling on Human Rights’ (2007) Public Law, p720. See also Masterman, ‘Section 2(1) of the Human Rights Act: binding domestic courts to Strasbourg’ [2004] PL 725.

72 See also e.g. the speech of Lord Slynn in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at para 26: ‘In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court which is likely in the ordinary case to follow its own constant jurisprudence’; see also e.g. Lord Slynn’s statement in R v Secretary of State for the Home Department ex parte Amin [2003] UKHL 51 at para 44.

73 See e.g. Secretary of State for the Home Department v AF [2009] UKHL 38, in particular the statements of Lord Hoffmann at para 70, Lord Rodger at para 98, Lord Carswell at para 108, and Lord Brown at 121.

74 [2010] UKSC 45 per Lord Neuberger at para 48. See also e.g. Lord Hoffmann in the case of R v Lyons [2002] UKHL 44 at para 46.

75 Similarly, there have been a handful of cases in which the UK courts have gone further than the ECtHR, usually in circumstances where our courts have felt sufficiently certain of the likely result in Strasbourg to be able to anticipate it: see Limbuela v Secretary of State for the Home Department [2005] UKHL 56; In re P (Northern Ireland) [2008] UKHL 38; and EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64.

76 [2002] UKHL 31

77 [2002] 34 EHRR 1253.

78 See e.g. Lord Bingham, R v Spear at para 12: ‘It goes without saying that any judgment of the European Court commands great respect, and section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account, as it routinely does. There were, however, a large number of points in issue in Morris, and it seems clear that on this particular aspect the European Court did not receive all the help which was needed to form a conclusion …. In my opinion the rules governing the role of junior officers as members of courts-martial are in practice such as effectively to protect the accused against the risk that they might be subject to ‘external army influence’, as I feel sure the European Court would have appreciated had the position been more fully explained’.

79 [2004] 39 EHRR 8, paras 117-134.

80 [2008] UKHL 57.

81 See e.g. Lord Hope at para 20: ‘I am not convinced that the Strasbourg court – which did not hear oral argument in McCann – has fully appreciated the very real problems that are likely to be caused if we were to [reverse Kay]. [The judgment in McCann] suffers from a fundamental defect which renders it almost useless in the domestic context. It lacks any firm objective criterion by which a judgment can be made as to which cases will achieve this standard and which will not .… Until the Strasbourg court has developed principles on which we can rely on for general application the only safe course is to take the decision in each case as it arises’; see also e.g. Lord Scott at para 82 and Lord Walker at para 115.

82 [2010] UKSC 45 per Lord Neuberger at para 46.

83 [2009] UKSC 14.

84 See e.g. Lord Phillips at para 11: ‘The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case’.

85 [2011] UKSC 45.

86 Abdulaziz, Cabales and Balkandali v UK [1985] 7 EHRR 471.

87 See Lord Wilson at para 43: ‘Having duly taken account of the decision in Abdulaziz pursuant to section 2 of the Human Rights Act 1998, we should in my view decline to follow it. It is an old decision. There was dissent from it even at the time. More recent decisions of the ECtHR, in particular Boultif and Tuquabo-Tekle, are inconsistent with it. There is no ‘clear and consistent jurisprudence’ of the ECtHR which our courts ought to follow’; see also e.g. Baroness Hale at para 72.

88 See e.g. R v Lyons [2002] UKHL 447 per Lord Hoffmann at para 46: ‘It is obviously highly desirable that there should be no divergence between domestic and ECtHR jurisprudence but section 2(1) says only that the courts must ‘take into account’ the decisions of the ECtHR. If, for example, an English court considers that the ECtHR has misunderstood or been misinformed about some aspect of English law, it may wish to give a judgment which invites the ECtHR to reconsider the question: compare Z v United Kingdom (2001) 10 BHRC 384. There is room for dialogue on such matters’ [emphasis added].See also Sedley LJ, ‘Personal reflections on the reception and application of the Court’s case-law’, Judicial Dialogue (Council of Europe, 2006); Lord Neuberger MR, ‘The current legal challenges facing social landlords: A judge’s perspective’, Social Housing Law Association Annual Conference, 27 November 2009); and Lord Judge LCJ, Judicial Studies Board lecture, Inner Temple, 17 March 2010, p7.

89 [2006] 42 EHRR 30, para 120, emphasis added.

90 app no 26565/05, 27 May 2008

91[2005] UKHL 31

92 app no 41615/07, 6 July 2010 paras 60 and 64

93 ‘We must replace the Human Rights Act with a British Bill of Rights’, Conservative Party blog, 22 November 2009. Similar inaccuracies appear in the Denning Lecture given by Sir Malcolm Rifkind QC MP (‘Governed by Law or by Lawyers? International Treaties and Human Rights’, 28 October 2009), see esp pp16-17 where he refers to the UK courts’ ‘lack of flexibility’ under the HRA.

94 ‘Can the Bill of Rights do better than the Human Rights Act?’, Middle Temple Hall, 30 November 2009, p9.

95 [2004] UKHL 30

96 See also e.g. Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex parte Pierson[1998] AC 539 at 575: ‘basic rights are not to be overridden by the general words of a statute since the presumption is against the impairment of such basic rights’.

97 R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, emphasis added. See also e.g. Philip Sales, ‘A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998’ [2009] 125 Law Quarterly Review 598.

98 See e.g. the reading-down of inconsistent legislation by the Canadian Supreme Court in cases such as R v Butler [1992] 1 SCR 452 or Ruby v. Canada (Solicitor General) [2002] 4 SCR 3.

99 Hansard, HL Debates, 5 February 1998, col 840.

100 Hansard, HC Debates 16 February 1998, col 778.

101 Ibid, para 40 per Lord Steyn.

102 Ibid, para 26. Emphasis added.

103 Ibid, para 43.

104 Ibid, para 39.

105 R v Secretary of State for the Home Department ex parte Anderson [2002] UKHL 46.

106 Ibid, para 30.

107 [2011] UKSC 21.

108 First Lord Alexander of Weedon lecture, Inner Temple Hall, 22 April 2010, p44. Emphasis added.

109 Dominic Raab MP, Strasbourg in the Dock (Civitas, April 2011).

110 Ibid, para 43.

111 [2011] EWHC 1578 (Admin).

112 Hookway was an unpopular decision, with one chief constable quoted as saying that he and his colleagues were ‘running around like headless chickens’ and on the ‘verge of a disaster’.  The outrage had nothing to do with the Human Rights Act and whilst criticisms were temporarily directed at the court, the real object of the frustration was the legislation which Parliament subsequently corrected.

113 [2009] UKHL 3

114 Hansard House of Commons Committee Stage 3 June 1998 vol 313 col 457

115 Hansard, House of Lords debates, 3 November 1997, cols 1228-1229. Emphasis added.

116 R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, emphasis added. See also e.g. the speech of Lord Keith in Derbyshire County Council v Times Newspaper Ltd and others [1993] AC 534 at 551: ‘My Lords, I have reached my conclusion upon the common law of England without finding any need to rely upon the European Convention. My noble and learned friend, Lord Goff of Chieveley, in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 A.C. 109, at p. 283-284, expressed the opinion that in the field of freedom of speech there was no difference in principle between English law on the subject and Article 10 of the Convention. I agree, and can only add that I find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the treaty in this particular field’.

117 See Footnote 58 above.

118 Evidence to the Joint Committee on Human Rights, 15 March 2011, Q57.

119 Second Lord Alexander of Weedon Lecture, 6 April 2011, paras 58-59. Emphasis added.

120 Ministry of Justice, Responding to human rights judgments: Report to the Joint Committee on Human Rights on the Government’s response to human rights judgments 2010-2011 (September 2011), p 5: ‘Since the Human Rights Act came into force on 2 October 2000, 27 declarations of incompatibility have been made, of which 19 have become final (in whole or in part) and none of which are subject to further appeal’.

121 Ibid, Annex A, p29.

122 A and others v Secretary of State for the Home Department [2004] UKHL 56.

123 [2003] UKHL 21.

124 [2008] UKHL 53.

125 [2006] EWHC 2886 (Admin), subsequently confirmed by the UK Supreme Court.

126 Lord Irvine, formerly Lord Chancellor, Hansard House of Lords Debates (Committee Stage) col 475, 18 November 1997

127 See Aston Cantlow (per Lord Nicholls at paragraph 6, per Lord Rodger at paragraph 160, per Lord Hope at paragraph 52, per Lord Hobhouse at paragraph 87 and per Lord Scott at paragraph 129).

128 Hansard House of Lords Debates Committee Stage, 24 November 1997, col 811

129 The former Home Secretary Jack Straw MP Hansard House of Commons Debates Committee Stage col 314,17 June 1998

130 Hansard House of Commons Debates, 17 June 1998, cols 409-410

131. Hansard House of Lords Committee Stage) 24 November 1997, col 811. See also: House of Commons Debates, 16 February 1998, col 773 (Home Secretary); House of Commons Debates, 17 June 1998, cols 409-410, 433 (Home Secretary),

132 Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley v. Wallbank and Another [2003] UKHL 37, paragraph 7

133 Human Rights Inquiry, Chapter 3, page 37-38, Equality and Human Rights Commission, 2009, http://www.equalityhumanrights.com/uploaded_files/hri_report.pdf

134 Surrey and Borders Partnership Trust, Southwark Health and Social Care, Heart of Birmingham Teaching PCT, Mersey Care NHS Trust, Tees, Esk and Wear Valleys NHS Trust. See ‘Human Rights in Healthcare – A Framework for Local Action’, Department of Health / British Institute of Human Rights, March 2007.

135 ‘Human Rights in Healthcare Evaluation’, Department of Health, 31 July 2008, p.1.

136 See for example Lord Mance’s commentary in YL (paragraph 92).

137 Aston Cantlow, paragraph 12

138 YL per Lord Mance at paragraph 91.

139 R(A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin)

140 NHS Information Centre (2011) Community Care Statistics 2009-2010

141 R (Weaver) v London & Quadrant Housing Trust [2009] HLR 40, CA

142 See Eastlands Home Partnership Ltd v White [2010] EWHC 695 (QB) where the registered social landlord accepted for the purposes of the hearing that it was within the scope of the HRA

143 Joint Committee on Human Rights: The meaning of public authority under the Human Rights Act 1998, Ninth Report of session 2006-07

144 Paragraph 150

145 Joint Committee on Human Rights: The meaning of public authority under the Human Rights Act; Ninth report of session2006 – 2007, paragraph 83

146 The government argued at the time that Article 13 was not needed in Schedule 1 as the whole scheme of the Act was designed to provide an effective remedy.

147 [2005] UKHL 14

148 Awards are commonly in the range of £500 - £1500, whereas claims for discrimination might attract awards for injury to feelings of around £3000 - £15000, or more.

149 Accessibility is in a particular problem in relation to claimants who would need legal aid/ public funding to bring a claim. Because awards are so low they do not usually meet the costs-benefit test for legal aid eligibility and claimants can only bring a claim if their claim also meets the ‘public interest’ test. Any damages awarded in those circumstances could be paid over to the Legal Services Commission as a contribution to the costs of bringing the case, so in fact a claimant could receive nothing.

150 Section 10(2).

151 Schedule 2, para 2(b).

152 See R(H) v Mental Health Review Tribunal for the North and East London Region [2001] EWCA Civ 415 and the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712).

153 See Gillan and Quinton v United Kingdom (2009) 50 EHRR 45 and the Terrorism Act 2000 (Remedial) Order 2011 (SI 2011/631).

154 See R (Baiai and others) v Secretary of State for the Home Department, nError: Reference source not found above, and the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2011

155 See R(F and another) v Secretary of State for the Home Department[2010] UKSC 17 and the Sexual Offences Act 2003 (Remedial) Order 2011.

156 Cream Holdings Ltd v Banerjee and the Liverpool Post Echo Ltd. [2004] UKHL 44

157 Hansard House of Commons Committee Stage 20 May 1998 col 1020 See also In the case of Gallagher (Valuation Officer) v Church of Jesus Christ Latter Day Saints there Church relied on its religious beliefs as part of its argument that it should be exempt from liability to non domestic rates The House of Lords found that article 9 was engaged but that taxation would not interfere with the Church's right to manifest its faith.

158 s.19 HRA 1998

159 S.31 (1) and 31 (2) Scotland Act 1998

160 See for example AXA General Insurance v The Lord Advocate & others [2011] UKSC 46

161 Statement of compatibility by the Rt Hon Baroness Royall of Blaisdon under s.19(1)(a) HRA

162 www.
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