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

The role of the Commission and our response

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The role of the Commission and our response

The Equality and Human Rights Commission (the Commission) has a statutory duty to promote equality and diversity, work towards the elimination of discrimination, promote human rights and build good relations between and among groups. The Commission has responsibilities in nine areas of equality (age, disability, gender, race, religion or belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment) as well as human rights.

The Commission is an accredited ‘A’ status National Human Rights Institution (NHRI) with the United Nations which recognises our authoritative and independent role in promoting and protecting human rights in Britain.

Under section 9 of the Equality Act 2006 the Commission has duties to:

- promote understanding of the importance of human rights,

- encourage good practice in relation to human rights,

- promote awareness, understanding and protection of human rights, and

- encourage public authorities to comply with Convention rights3.

In addition, a key duty of the Commission under both the Equality Act 20064 and the United Nations Paris Principles5 is to monitor and advise the government on the effectiveness of the Human Rights Act. Responding to the consultation by the Commission on a Bill of Rights (CBR) is therefore central to our duties.

Our response to the consultation is structured in order to respond to the four questions asked:

(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?

In Chapter 1 we focus on whether we need a Bill of Rights by analysing:

  • our response to the last government's consultation on a Bill of Rights in March 2010;

  • the historical developments towards the Human Rights Act;

  • the uniquely British model of human rights protection that the HRA provides; and

  • the reviews that have been conducted by the government, the Parliamentary Joint Committee on Human Rights (JCHR) and the Commission on the effectiveness of the HRA.

In Chapter 2 we analyse how the HRA works and why we believe that the current rights and mechanisms under the HRA are effective and should be retained. Where appropriate we have also considered how the mechanisms under the HRA could be improved: in particular to provide better clarity on the scope of which bodies are subject to the HRA (section 6 of the HRA) and to improve parliamentary involvement in discussions about the compliance of draft legislation with human rights obligations (section 19 of the HRA).

We are not at this point providing our views on the role of European Court of Human Rights (ECtHR), its relationship with domestic courts under the HRA and the proposals to reform the ECtHR.

This is for several reasons.

Firstly, the CBR has indicated it is not asking the public detailed questions on the ECtHR at this stage.

Secondly, we are undertaking a specific stream of work on the role of the ECtHR and have recently commissioned a research project. We plan to send the CBR a detailed submission on the role of the ECtHR in due course, as well as the report of the research findings.

In Chapter 3 we consider issues relating to devolution. In particular we discuss how the HRA and Convention rights are embedded into the devolution settlements, and what are the implications of any possible amendment or repeal of the HRA on the devolution settlements in Scotland, Wales and Northern Ireland.

In Chapter 4 we provide our position on the appropriate process and principles that should be followed by any government if any Bill of Rights is developed.

Finally we note that the Commission will be sending the CBR a separate submission which will consider human rights that are not currently directly protected by the HRA or the ECHR, but we believe merit further consideration in any discussions on a Bill of Rights. This analysis will be based on evidence from a number of sources, including our previous submission on a Bill of Rights in March 2010, recent inquires we have conducted and other ongoing work. It will also be based on the principle that additional rights should only be considered if they build on the current rights and mechanisms in the HRA.

Chapter 1: Do we need a Bill of Rights?

The Human Rights Act is a Bill of Rights that was the culmination of several decades of debate, across all political parties, on the need to incorporate the European Convention on Human Rights. It gives British people access to justice at home and it provides an ingenious model tailored to British constitutional traditions. We do not believe that is necessary to replace the HRA with a new Bill of Rights.

This chapter provides the Commission's key positions on the HRA and possibility of any Bill of Rights; an explanation of British history of human rights protection and cross party involvement in the calls for the incorporation of the European Convention of Human Rights; an outline of how the Human Rights Act provides a British model for protecting human rights; and an analysis of the key findings of reviews of the Human Rights Act conducted by the government, JCHR and the Commission.

1. The Commission's position

In March 2010, the Commission published its detailed positions on the HRA in response to the last government's Green Paper consultation on a Bill of Rights (‘HRA Plus’).6 At the same time, the Commission also published research that it commissioned into the appropriate process for developing any Bill of Rights based on comparative experience in the United Kingdom and internationally.7 The findings of this research are discussed further in Chapter 4.

HRA Plus provided the Commission's positions on retaining the HRA, and (on condition that those rights and mechanisms were retained) what further rights and mechanisms would or may be appropriate to better protect the human rights of everyone in Britain.

The Commission developed a set of principles for any Bill of Rights to ensure both comprehensive protection of the human rights of all and a greater understanding and ownership of human rights throughout society.These principles are:

  • Principle 1: The Human Rights Act is essential for the protection of human rights in the United Kingdom and should be retained. Any Bill of Rights should build on the Human Rights Act. Any Bill of Rights that replaces the Human Rights Act should not be brought into force until and unless it contains at least the same levels of protection of rights and mechanisms under the Human Rights Act, and complies with obligations under international treaties.

  • Principle 2: The government and any future government should ensure that the process of developing any Bill of Rights involves and includes all sectors of society, ensures that the process and result creates a feeling of ownership in society as a whole, that the consultation is conducted by an independent body, and that it is adequately resourced.

  • Principle 3: In any Bill of Rights process, the government should actively promote understanding of the Human Rights Act and European Convention on Human Rights and the rights and mechanisms they protect, as well as countering any misconceptions.

  • Principle 4: The Commission will use the results and recommendations from its Human Rights Inquiry to inform its response to any Bill of Rights and further develop the current human rights framework.8

In relation to the first principle we believe that:

  • the level of protection and all the mechanisms provided by the Human Rights Act (HRA) should be retained and not diluted in effect in any way,

  • any Bill of Rights must comply with international human rights obligations,

  • there should be no additional limitations on the rights and mechanisms currently provided in the HRA, and

  • if any Bill of Rights is legislated for in the future, the HRA should not be repealed unless and until the Bill of Rights comes into force.

The second and third principles are discussed in more detail in Chapter 4 on the process for developing any Bill of Rights. In relation to the fourth principle, we discuss below the findings from our Human Rights Inquiry in 2009 in relation to the effectiveness of the HRA.

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