UCL’s Constitution Unit hosted a seminar looking at the prospect for a British Bill of Right, which was given by Sir Leigh Lewis KCB. Sir Leigh was the chair of the controversial commission set up by the Prime Minister to look at the possible use for a British Bill of Rights. The report was published on 18 December 2012, and this is the first chance that Sir Leigh has had to reflect on it in public.
After a quick straw poll in the room showing that most people had not read the summary of the report, Sir Leigh started with its background. The commission was set up as a response to the political impasse caused by human rights in the coalition formation discussions. It was already clear to most that the manifestos of the two parties clashed on this are, and so the formation of a commission is a tried and tested political response which buys the politicians some time before having to deal with the issue.
Sir Leigh was appointed the Chair, following his long service in the Department of Work and Pensions, and he was supported by eight other commissioners. Each party selected four commissioners, and often their views represented the views of the party they were selected by. The terms of reference that the committee worked under were ‘interesting’; it was apparent that the parties had negotiated them to a fine level of detail. The key words for the commissioners were as follows: The Commission will 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 extend our liberties. This was taken by all the commissioners to mean that any resulting Bill would supplement the existing European Convention in UK law, even though it was noted by a small minority that they wished it were not so.
While the commission was working, the external environment put greater pressures on the work they were doing. As examples, the Hirst judgment on prisoner voting had returned to the fore, and the deportation cases of Abu Hamza and Abu Quatada had exacerbated the polarisation of the views that were already deeply held by many.
The commission decided that transparency was key in their work, so all the papers and minutes were published. The commission met 19 times, and engaged in different types of outreach work. This includes open consultations for the public, a large by-invitation seminar in Birmingham, receipt of submissions from key groups, and discussions with the devolved administrations. All the responses were read and summarised by the secretariat, and about half were read the commissioners.
The commission decided not to hold Leveson-style hearing for pragmatic reasons, such as time allowed and costs, and also they felt that it did not suit the nature of the task. Similar to this, the commission did not commission their own polling; although deliberative polling was considered, finding the correct questions to ask would prove too difficult, and the commission wanted no skew at all.
They released 24 recommendations, 17 of which were agreed by all commissioners. The key one, that a United Kingdom Bill of Rights should be established so long as it incorporated the EUROPEAN CONVENTION ON HUMAN RIGHTS fully, was only agreed by seven of the nine commissioners. The two who disagreed, Baroness Helena Kennedy QC and Professor Philippe Sands QC believed that this level of detail was not necessary, as the failure of the EUROPEAN CONVENTION ON HUMAN RIGHTS, European Court of Human Rights and HUMAN RIGHTS ACT had not been fully explored by the commission.
One thing that was agreed by all was that they thought it key to provide steers as to what any such Bill should contain. A question that arose out of this was whether the Bill should contain other additional rights. This was not opposed in principle; the Convention if drafted today would be a very different document to the one drafted 50 years ago. Various rights were proposed, including equality rights, and children’s rights. Some members also thought that enshrining the right to a form of administrative justice should also be enshrined in the Bill if it was ever drafted. When considering socio-economic and environmental rights, it was decided that they would not be suitable for such a Bill, as most felt that overall that these rights required the making of choices and decisions that were best left to the elected politicians, not the courts.
The commission also considered the mechanisms with any Bill should operate on broadly similar principles to those in the HUMAN RIGHTS ACT. This included a mechanism for a declaration of incompatibility such as that found in the HUMAN RIGHTS ACT. The commission found the formula in the HUMAN RIGHTS ACT to be a subtle balance between the elected legislature and the judiciary, and saw no reason to change that.
The commission also considered whether any such Bill should include a concept of responsibilities. This was suggested in light of the green papers released under the previous Labour government, and the discussions at the Birmingham seminar showed support for this. The commission concluded that it was not desirable to make rights conditional upon the exercise of responsibilities; this denied the inherent universality of rights. Instead, it was suggested that some form of declaratory non-justiciable statement could be made to encourage those covered by the Bill to support the ties of respect and responsibility that bind society.
Devolution and Europe
As noted above, the devolved administrations were also considered in the process. The devolved governments of Scotland and Wales understandably felt that the matter was for them to decide in their own area, and said that their populations were much less concerned anyway. However, Sir Leigh said that the polling, with the above caveat in mind, showed that the reactions of the people in these countries were much in line with England on the matter. The Northern Ireland question was much more complicated, and there was not time to discuss it in the seminar. However, it was clear that any future debate must be sensitive to the devolution or independence of the countries in the United Kingdom.
The commission was also ask to consider and review the European Court of Human Rights as part of a wider constitutional review. This was prior to the UK’s assumption of the chairmanship of the Council of Europe. One matter that stuck out was the backlog of cases, which has only modestly dropped since it became a public concern. The commission recommended a significant reduction in the number of cases that was sent to the court, and that these were limited to serious cases where interpretation of the Convention was required. There were also questions about the remedies the court could offer, and suggested reform of the judicial appointment process. However, this was only ever to be interim advice and was left at these points.
Following publication, the reactions were overwhelmingly those of disapproval. The Telegraph’s response was the only positive plaudit from the Press, and Sir Leigh read out some of the less flattering ones, including a comment from Ben Emmerson QC, who said the commission was kin to the editors of the Daily Mail and the Sun sitting down together to write the constitution. Sir Leigh’s own view reflected that of the commission’s values: that there needs to be respect for different viewpoints and that any debate must be well-informed. He said that the argument that better education would solve the problem of public ownership of human rights was too simplistic, but there is a nugget of truth to the matter. Sir Leigh borrowed the words of Lord Lester QC, who noted that in Europe we are rare as a country to not view human rights as part of our constitutional rights, and human rights cases as matter decided by our laws, but rather in line purely with the Convention. Rather, we feel a sense of alienation about the whole concept. This issue of public ownership is why the seven of nine commissioners suggested the adoption of a Bill of Rights for the United Kingdom.
The seminar was followed up by a Q&A session done under Chatham House rules.
One thing was clear after that seminar: Sir Leigh was very proud of the commission’s thoroughness, and was not disheartened by the lack of approval. He admitted that he knew it would always have been a difficult and mostly thankless task. What was most interesting about the seminar was the impact of the human rights arguments within the devolved administrations. While the coalition was busy forming the government in Westminster and having discussions about human rights, they had not considered what the other administrations within the United Kingdom may feel about the issue. Welsh politicians have renewed calls for a separate legal jurisdiction to England, and the Scottish independence referendum has the chance to change the political structure of the United Kingdom in a big way. With these two issues and the increasingly loud rhetoric on both sides of the debate, it is not surprising that the commission did not achieve as much as it had hoped. Its lasting contribution may well be to provide a snapshot of the human rights agenda at this point in time, so that any debate to be had will be, as the commission suggests, well-informed.
Other UCL Constitution Unit seminars can be found here.