a uk bill of rights? the choice before us - volume 2: annexes

A UK Bill of Rights

The Choice Before Us

Volume 2 Annexes

December 2012

copy Members of the Commission on a Bill of Rights 2012

You may re-use this information (not including logos) free of charge in any format or medium under the terms of the Open Government Licence To view this licence visit httpwwwnationalarchivesgovukdocopen-government-licence

Any enquiries regarding this publication and copyright should be sent to us at enquiriescommissiononabillofrightsgsigovuk

This publication is available for download on the Commissionrsquos website at wwwjusticegovukaboutcbrindexhtm

A UK Bill of Rights The Choice Before Us Volume 2 Annexes | 1

Annex A Organisations and individuals with whom the Commission met 3

Annex B The Commissionrsquos Interim Advice to Government on Reform of the European Court of Human Rights 9

Annex C The Chairrsquos letter to Ministers on Reform of the European Court of Human Rights 17

Annex D The Commissionrsquos Discussion Paper Do we need a UK Bill of Rights August 2011 25

Annex E The Commissionrsquos Consultation Paper A Second Consultation July 2012 45

Annex F List of Respondents to the Commissionrsquos Discussion and Consultation Papers 75

Annex G Consultation Summary 111

Annex H Examples of Bills of Rights 199

Annex H1 The Institute for Public Policy Research A British Bill of Rights 1990 201

Annex H2 Joint Committee on Human Rights Outline of a UK Bill of Rights and Freedoms 2008 229

Annex H3 Links to Bills of Rights in other countries 241

Annex I The European Convention on Human Rights 243

Annex J The Human Rights Act 1998 257

Table of Contents

2 | A UK Bill of Rights The Choice Before Us Volume 2 Annexes


Annex A

Organisations and individuals with whom the Commission met



Age UK

David Anderson QC

Dr Maggie Atkinson Childrenrsquos Commissioner for England

Nick Barber University of Oxford

Professor Christine Bell University of Edinburgh

Birmingham Lesbian Gay Bisexual Transgender Community Trust

Birmingham Race Action Partnership

British Institute of Human Rights

British-Irish Parliamentary Assembly

Lord Blair of Boughton QPM

British Academy Steering Group for the Human Rights and the UK Constitution publication

Robert Broadhurst Parliamentary Researcher

Chris Bryant MP

Church of England Diocese of Birmingham

Citizens Advice Bureau

Lord Carlile of Berriew CBE QC

Catholic Archdiocese of Birmingham

The Rt Hon Ken Clarke QC MP Former Secretary of State for Justice and Lord Chancellor

The Rt Hon Nick Clegg MP Deputy Prime Minister

The Community Law Partnership

Jean-Paul Costa former President of the European Court of Human Rights The Hon Sir Nicholas Bratza former Deputy President and President of the Court and other Justices of the Court

Council of Birmingham and Midland Jewry

Council of Disabled People

Permanent Representatives to the Council of Europe from Turkey Norway Germany Netherlands Sweden and France

David Cowling BBC Political Research Editor

Professor Paul Craig University of Oxford

Roseanna Cunningham MSP Minister for Community Safety and Legal Affairs Scottish Government

Professor Brice Dickson Queenrsquos University Belfast

Professor John Eekalaar Oxford Centre for Family Law and Policy

Equality Commission for Northern Ireland

Equality and Diversity Forum

Equality and Human Rights Commission

Department for the Execution of Judgments European Court of Human Rights

Advisory Panel on the Selection of Judges European Court of Human Rights

Professor David Feldman University of Cambridge

Professor James Fishkin Stanford University


David Ford MLA Minister of Justice for Northern Ireland

Professor Sandra Fredman QC University of Oxford

Ambassador Eleanor Fuller Former UK Permanent Representative to the Council of Europe

Professor Conor Gearty London School of Economics and Political Science

Blair Gibbs Policy Exchange

The Rt Hon Lord Gill Lord President and Lord Justice General of Scotland and other members of the Judiciary of Scotland

Richard Glancey and students Northumbria University Law School

Gurdwara Guru Nanak Nishkam Sewak Jatha Birmingham

Professor Colin Harvey Queenrsquos University Belfast

Tom Hickman Blackstone Chambers

Stephen Hockman QC 6 Pump Court Chambers and other members of the group of signatories to a letter to The Times dated 15 September 2011

Professor Christopher Hood CBE FBA Fellow of All Souls College Oxford

Theodore Huckle QC Counsel General to the Welsh Government

Independent Monitoring Board HMP Birmingham

Ipsos Mori

Irish Traveller Movement in Britain

Professor John Jackson University College Dublin

Thorbjoslashrn Jagland Secretary General Council of Europe and other senior representatives of the Council of Europe

Sir Bill Jeffrey KCB

Sir Paul Jenkins KCB QC Treasury Solicitor

Joint Committee on Human Rights

The Rt Hon Carwyn Jones AM First Minister of Wales

Professor Timothy H Jones University of Swansea

Professor Sir Jeffrey Jowell KCMG QC Director of the Bingham Centre for Rule of Law Emeritus Professor of Public Law at University College London

The Rt Hon Lord Judge Lord Chief Justice of England and Wales and other members of the Judiciary of England and Wales

JUSTICE

Dr Aileen Kavanagh University of Oxford

Sadiq Khan MP Shadow Lord Chancellor and Shadow Secretary of State for Justice

Professor Francesca Klug OBE Human Rights Futures Project at the London School of Economics and Political Science

John Larkin QC Attorney General for Northern Ireland

Law Society of Scotland

Dr Liora Lazarus University of Oxford

Sir Jeremy Lever KCMG QC Fellow of All Souls College University of Oxford

Liberty

The Rt Hon David Lidington MP Minister of State for Europe


Professor Inge Loslashnning Chair of the Norwegian Select Committee on Human Rights in the Constitution

Professor Vaughan Lowe Chichele Professor of Public International Law and Fellow of All Souls College Oxford

Kenny MacAskill MSP Cabinet Secretary for Justice Scottish Government

Professor Christopher McCrudden Queenrsquos University Belfast

The McKay Commission

Lord McNally Minister of State for Justice and Deputy Leader of the House of Lords

Professor Monica McWilliams Ulster University

Paul Mahoney Justice of the European Court of Human Rights and former Registrar of the Court

Dr Austen Morgan 33 Bedford Row Chambers

The Rt Hon Sir Declan Morgan QC Lord Chief Justice of Northern Ireland and other members of the Northern Ireland Judiciary

Communities and Local Government Committee National Assembly for Wales

Constitutional and Legislative Committee National Assembly for Wales

Cross Party Group on Human Rights National Assembly for Wales

NHS Midlands and East

Committee for the First Minister and deputy First Minister Northern Ireland Assembly

Justice Committee Northern Ireland Assembly

Northern Ireland Human Rights Commission

Northern Ireland Human Rights Consortium

Michael OrsquoBoyle Deputy Registrar European Court of Human Rights and other senior officials of the Registry

Colm OrsquoCinneide University College London

Baroness Nuala OrsquoLoan of Kirkinriola

Christine OrsquoNeill Convenor Constitutional Law Committee Law Society of Scotland

Political and Constitutional Reform Committee UK Parliament

Public Law Wales

Geoffrey Robertson QC Doughty Street Chambers

Scottish Human Rights Commission

Cross Party Group on Human Rights Scottish Parliament

Justice Committee Scottish Parliament

Rt Hon Sir Stephen Sedley Retired Lord Justice of the Court of Appeal of England and Wales

Dr Alice Siu Stanford University

South Wales Police Cardiff Community Cohesion Group

Staffordshire and West Midlands Police Joint Legal Services

Staffordshire and West Midlands Probation Trust

UK Delegation to the Parliamentary Assembly of the Council of Europe

Lord Phillips of Worth Matravers KG Former President of The UK Supreme Court and other Justices of the Court


Councillor Alan Rudge Birmingham City Council and senior officials of the Council

UK Border Agency

Unicef UK

Professor Guglielmo Verdirame Kings College London

Walsall Magistrates Bench

Dr Greacutegoire Webber London School of Economics and Political Science

Welsh Centre for International Affairs

West Midlands Later Life Forum

West Midlands Police

The Rt Hon Baroness Shirley Williams of Crosby

The Rt Hon the Lord Michael Wills of North Swindon

Womenrsquos Help Centre Handsworth Birmingham

WWF-UK

Dr Alison Young University of Oxford



Annex B

The Commissionrsquos Interim Advice to Government on Reform of the

European Court of Human Rights


Sir Leigh Lewis KCB Commission on a Bill of Rights Post point 955 102 Petty France

London SW1H 9AJ

T 020 3334 2486

Rt Hon Nick Clegg MP Deputy Prime Minister and Lord President of the Privy Council 70 Whitehall London SW1A 2AS

Rt Hon Kenneth Clarke MP QC Lord Chancellor and Secretary of State for Justice 102 Petty France London SW1H 9AJ 28 July 2011

Dear Ministers

REFORM OF THE EUROPEAN COURT OF HUMAN RIGHTS OUR INTERIM ADVICE TO GOVERNMENT

INTRODUCTION

1 The Commission is invited by its terms of reference to provide advice to the Government on the Interlaken process for reform of the European Court of Human Rights including in advance of the assumption by the United Kingdom of the Chairmanship of the Council of Europe

2 This letter sets out our interim advice as a first step in fulfilling our terms of reference It sets out our preliminary advice on the need for reform and the priorities that might guide the Government The main thrust of our advice is that the United Kingdom is uniquely well-placed to set the ball rolling on fundamental reforms and that it should do so with a view to achieving the well-being and effective functioning of the Court over the long term

3 In particular we believe there is a need to ask two basic questions

(i) what is the central purpose of the European Court of Human Rights for the 800 million citizens of the 47 Member States and

(ii) how is that purpose most likely to be achieved

4 It is evident that the current structure and functioning of the Court as it struggles with a voluminous and ever-growing case-load places it in an impossible situation From this three areas of fundamental reform appear to us to be particularly pressing and cannot be addressed by mere tinkering at the edges

first the need to reduce very significantly the number of cases that reach the Court by introducing new screening mechanisms second the need to reconsider the relief that the Court is able to offer by way of just satisfaction and third the need to enhance procedures for the selection of well-qualified judges of the Court

BACKGROUND

5 By way of background it is appropriate to mention that the Commission has taken account of the considerable literature and advice that already exists on the subject of Court reform and all but one of its members visited Strasbourg on 4 and 5 July During that visit we met with many individuals closely involved in the working of the Court including the current President the President-elect other judges of the Court the Secretary General of the Council of Europe the Registrar and Deputy Registrar of the Court and a number of officials from the Court and Council of Europe We were also able to discuss Court reform informally with a number of the Permanent Representatives to the Council of Europe from other Member States In this context we would like to record the Commissionrsquos considerable thanks to the UKrsquos Permanent Representative to the Council Ambassador Eleanor Fuller for hosting and facilitating our visit We should also note that following our visit several members of the Commission met with the Leader and other members of the UK Delegation to the Parliamentary Assembly for a similarly wide-ranging and helpful discussion We anticipate that our meetings and discussions with individuals closely involved with the operation of the Court will form part of a continuing dialogue in the course of our work

6 It is clear that a considerable programme of reform has already been undertaken In particular the adoption of Protocol 14 to the European Convention on Human Rights has allowed a number of reforms to be introduced including the new procedure whereby a single judge can decide on the admissibility of an application The Court has also introduced a pilot judgment procedure to deal with systemic and structural weaknesses in national systems and repetitive applications In addition the Court has introduced a system of prioritisation of the cases coming to it so as to allow the Court to hear urgent and substantial cases more quickly These and other reforms have improved the Courtrsquos working and efficiency

7 These reforms are not however sufficient to tackle the serious problems facing the Court This was a common theme amongst all of our interlocutors Whilst recent reforms may slow the rate of increase in the backlog of cases which now stands at over 150000 no one believes that they offer any real prospect of addressing the underlying issues As a consequence the number of well-founded cases that are not urgent and that have been awaiting a decision for many years is continuing to increase The absence of any real prospect of grappling with this growing problem raises the most serious concerns about the well-being of the Court and must be a


central part of the Governmentrsquos proposals for reform

8 These challenges mean that fundamental reform is required Over the next year we would like to revisit the various modalities for achieving necessary reforms whether by way of amendment of the Convention or otherwise We were encouraged in that view by many of those whom we met in Strasbourg who are clearly looking to the Interlaken process and to the forthcoming United Kingdom Chairmanship of the Council for renewed impetus to be given to the reform programme The core of our interim advice is to urge that the necessary will be found among the governments of the Council of Europe to reform the system so as to enable the European Court of Human Rights to focus on its essential purpose as the judicial guardian of human rights across Europe As the Court itself has explained ldquothe machinery of protection established by the Convention is subsidiary to the national systems protecting human rightsrdquo1 and ldquoby reason of their direct and continuous contact with the vital forces of their countries the national authorities are in principle better placed than an international court to evaluate local needs and conditionsrdquo2 It is essential for the Court to be able to address cases involving serious questions affecting the interpretation or application of the Convention and serious issues of general importance where the Courtrsquos intervention is justified The Court should be a court of last resort and not a first port of call for all human rights issues It should be adjudicating hundreds of cases a year not thousands and certainly not tens of thousands and ensuring that the principle of subsidiarity is observed by national institutions with the primary responsibility for the protection of human rights and the provision of effective remedies for violations of the Convention rights

Interim Recommendation 1 the Government should vigorously pursue the need for urgent and fundamental reform to ensure that the European Court of Human Rights is called upon as an international court only to address a limited number of cases that raise serious questions affecting the interpretation or application of the Convention and serious issues of general importance It is essential to ensure that the Member States and their national institutions ndash legislative executive and judicial ndash assume their primary responsibility for securing the Convention rights and providing effective remedies for violations Failure to put in place the necessary machinery for compliance should itself constitute a violation of the Convention

Interim Recommendation 2 the Government should use its Chairmanship to initiate a time-bound programme of fundamental reform

9 We believe that a number of fundamental changes need to occur

(1) Subsidiarity and screening

10 First the Court must be able to decline to address cases that raise no serious violation of the Convention or any issues of significant European public importance This change was recommended by the 2001 Evaluation Group to the Committee of Ministers and it needs to be adopted as a matter of urgency

1 Handyside v United Kingdom (1976) 1 EHRR 737 para 48 2 Buckley v United Kingdom (1996) 23 EHRR 101 para 75



11 The exponential increase in the Courtrsquos caseload arising from a particular group of defaulting Member States is unsustainable and poses a serious threat to the Courtrsquos viability and effectiveness In 2001 the Courtrsquos backlog stood at only 18000 cases The Evaluation Group established by the Committee of Ministers concluded that

ldquothe system is seriously overloaded and with the relatively limited resources available to it the Courtrsquos ability to respond is in danger Immediate action is indispensable if the Court is to remain effective and retain its credibility and authorityrdquo3

12 By 2006 the backlog stood at 86000 cases A Group of Wise Persons established by the Committee of Ministers reported that

ldquothe explosion in the number of casesis now seriously threatening the survival of the machinery for the judicial protection of human rights and the Courtrsquos ability to cope with its workload This dramatic development jeopardises the proper functioning of the Conventionrsquos control systemrdquo4

13 Against this background the situation is even more serious today with a backlog of 150000 cases increasing at a rate of 20000 per annum The Government should use as a springboard for urgent reform the work of the Evaluation Group and the Group of Wise Persons that sought to reinforce the founding aims of the Convention and its cornerstone principle of subsidiarity They recommended inter alia fundamental reforms of the Courtrsquos role which would allow the Court to return to its essential role as final arbiter of human rights

14 In 2006 the Group of Wise Persons recommended a number of reform measures including the pilot judgment procedure which the Court has since instituted In so doing they pointed out that

ldquo(t)here is a fundamental conflict between the size of the population who have access to the Courtand the Courtrsquos responsibility as the final arbiter in human rights matters for so many different states No other international court is confronted with a workload of such magnitude while having at the same time such a demanding responsibility for setting the standards of conduct required to comply with the Conventionrdquo5

15 In 2001 the Evaluation Group made similar observations and affirmed that one of the

3 Council of Europe Committee of Ministers Report of the Group of Wise Persons to the Committee of Ministers CM(2006)203 [2006 Report] Preface and Executive Summary 4 Council of Europe Committee of Ministers Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights EG Court(2001)1 [2001 Report] para 26 5 2006 Report paras 35-36 6 2001 Report Preface and para 8 7 2001 Report para 22 8 2001 Report paras 92-93 9 Paras 94ff 10 Letter from Mr Jean-Paul Costa President of the European Court of Human Rights addressed to Member Statesrsquo Permanent Representatives (Ambassadors) on 9 June 2010 appended to Council of Europe Parliamentary Assembly Committee on Legal Affairs and Human Rights National procedures for the selection of candidates for the European Court of Human Rights Doc 12391 6 October 2010


founding intentions of the Convention was to place ldquoprimary responsibility for securing the rights and freedomswith the domestic authorities and particularly the judiciary (of each Member State)rdquo6 The Strasbourg court as the Group reported should play a subsidiary role and particularly not the role of ldquocourt of appeal from national courtsrdquo7 The Commission respectfully endorses this approach One of the principal recommendations of the 2001 Evaluation Group was that the Court be given a means of rejecting applications that raised issues of minor or secondary importance The Group recognised the objection that such a measure would deprive some victims of a decision from the Court but recognised that ldquothe primary responsibility for applying Convention standards lies with domestic courts and authoritiesrdquo The Evaluation Group noted that

ldquoeither the Court continues to attempt to deal in the same way with all the applications that arrive (in which event it will slowly sink) or it reserves detailed treatment for those cases which in the light of its overall object and purpose warrant such attentionrdquo8

16 The Commission agrees with the observations of the Evaluation Group and the Group of Wise Persons about the Courtrsquos essential function and believes that the eight-fold increase in the size of the Courtrsquos caseload in the 10 years since it reported confirms the irrefutable merit of this fundamental reform and the pressing need for urgent action by the Committee of Ministers of the Council of Europe

17 We note that the Interlaken and Izmir Declarations invite the Court to take fully into account its subsidiary role in the interpretation and application of the Convention The Interlaken Declaration invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of final arbiter of human rights and to adjudicate upon well-founded cases with the necessary speed in particular those alleging serious violations of human rights

Interim Recommendation 3 the Government should ensure that an urgent programme of fundamental reform addresses the need to give practical effect and meaning to the essential role of the Court by establishing a new and effective screening mechanism that allows the Court to decline to deal with cases that do not raise a serious violation of the Convention

2) Relief and lsquojust satisfactionrsquo

18 The second area for fundamental change concerns the way in which successful Applicants are afforded financial redress A considerable part of the Courtrsquos work relates to the calculation and award of lsquojust satisfactionrsquo under Article 41 ndash ie financial redress ndash in cases where a breach of a Convention right has been found some 1500 such awards were made in 2010 In many cases the amounts awarded are small in some cases as low as euro100 We understand that many cases brought before the Court are motivated by a desire to obtain such compensation rather than to remedy any alleged serious violation of a Convention right

19 The Commission recognises that the subject of relief and remedies raises important and sometimes complex issues for any court At this preliminary stage we wish to raise an expression of doubt as to whether it is properly the function of an


international court of last resort to be entrusted with the task of calculating and awarding just satisfaction since Article 41 provides that it should only be awarded ldquoif necessaryrdquo

20 We do not now express a concluded view as to how to address this issue although one option as recommended by the Group of Wise Persons in 20069 would be for the Court to remit such decisions to the Member State concerned but to retain the power to award just satisfaction in certain cases This could include cases of gross violation However we recognise that it will continue to be important for the Court to order defendant States to pay the assessed legal costs and expenses of successful applicants so as to facilitate effective access to justice

Interim Recommendation 4 the Government should ensure that a programme of fundamental reform addresses the need to revisit the meaning and effect of Article 41 of the Convention and the role of the Court in awarding lsquojust satisfactionrsquo

(3) Enhancing the nomination and appointment of judges

21 A third area of reform is reflected in the Interlaken Declaration calling on Member States and the Council of Europe to ensure if necessary by improving the transparency and quality of the selection procedure at both national and European levels full satisfaction of the Conventionrsquos criteria for office as a judge of the Court The Commission acknowledges that the Convention system recognises the role of national courts and that a mutually respectful relationship between national courts and the Strasbourg court is essential to the proper functioning of the system This observation is closely connected with President Costarsquos statement that the Court as the ultimate arbiter of human rights issues must be composed of persons of sufficient standing and authority to command the full respect of national judges10

22 The Commission welcomes the establishment by the Council of Europe of an Advisory Panel of Experts to consider judicial nominations from Member States We believe that this will assist in ensuring that judges have appropriate experience and standing It does not however go far enough for example it is indefensible that the Panel cannot interview all nominees before giving its advice to the Parliamentary Assembly apparently because of a lack of sufficient funds to support the Panelrsquos work We believe that the Advisory Panel provides only a first step and its role should as a matter of urgency be enhanced and upgraded It is urgent because a number of senior members of the Court will retire in the near future and it is vital for their places to be taken by worthy successors In addition we believe that there is an urgent need to ensure throughout the Member States that national systems are in place involving the advertising of vacancies and a process of independent scrutiny and recommendation by a well-qualified nominating panel applying objective criteria

Interim Recommendation 5 the Government should seek to ensure that a programme of fundamental reform establishes agreement on appropriate objective and merit-based principles and rules and adequate resources for the selection of judicial candidates at the national level and for the appointment process at the European level


Yours sincerely

CONCLUSION

23 In accordance with your request to the Commission to provide advice to the Government in advance of the UK assuming the Chairmanship of the Council on the ongoing Interlaken process to reform the Strasbourg court we hope that this interim advice will be of assistance in focusing on a number of key issues

24 We are intending to publish this interim advice ndash when Parliament returns in September ndash so that others are able to comment upon it if they so wish

25 Finally I should note that as you might expect a number of other areas for potential reform of the Court have either been raised with the Commission by those with whom we have discussed these issues or have been raised by individual members of the Commission themselves These include some further suggestions to address the Courtrsquos backlog and a number of suggestions intended to address concerns regarding the respective roles of the judiciary and the democratic institutions of the Council of Europe and the Member States and concerns regarding the case law of the Strasbourg court which have been expressed not only in this country but in others We will be returning to these issues amongst many others in our work programme I am writing to you separately ndash on my own behalf rather than on behalf of the Commission as a whole ndash simply to set out the main such areas which have been raised with us some of which we will undoubtedly wish to consider in greater depth at a later stage in our work programme However because we have not yet been able to do so and because some of the proposals which have been raised with us are ones which we may well decide not to pursue at all we have not included a discussion of them in this letter

26 I am sending a copy of this letter to the Foreign Secretary and Lord McNally

Sir Leigh Lewis KCB Chair of the Commission

cc Rt Hon William Hague MP Secretary of State for Foreign and Commonwealth Affairs

cc Rt Hon Lord McNally Minister of State for Justice and Deputy Leader of the House of Lords


Annex C

The Chairrsquos letter to Ministers on Reform of the European Court of

Human Rights



London SW1H 9AJ

T 020 3334 2486



Dear Ministers

REFORM OF THE EUROPEAN COURT OF HUMAN RIGHTS

INTRODUCTION

1 I am writing in parallel to my letter of todayrsquos date which sets out the Commissionrsquos interim advice on reform of the European Court of Human Rights pursuant to the Commissionrsquos terms of reference I should note that for one member of the Commission agreement to the interim advice was conditional on the addition of a third question namely how can the democratic legitimacy of the Court be assured while at the same time assuring its independence and authority I return to this question below

2 As I note in paragraph 25 of the letter conveying our interim advice a number of other areas for potential reform of the Court have either been raised with the Commission by those with whom we have discussed these issues or have been raised by individual members of the Commission themselves These other areas include but are not limited to some further suggestions to address the Courtrsquos backlog a number of suggestions intended to address the respective roles of the judiciary and the democratic institutions of the Council of Europe and the Member States and considerations regarding the case law of the Strasbourg Court which have been expressed not only in this country but in others including the perception among some but by no means all commentators that the Court is at times too interventionist in matters that are more appropriate for national legislatures or courts to decide


3 In the time available to us to provide our interim advice we have not been able to consider these further suggestions or the evidence relating to them in any depth and we have not therefore included any discussion of them in our interim advice However since we are highly likely to return to some of these issues at a later stage in our work programme in order to examine them further I thought it would be useful at least to list them for you at this stage simply so that you are aware of them In doing so I should stress that I am putting forward this letter myself and that unlike the letter conveying our interim advice it does not carry the endorsement of the Commission

REFORM IDEAS RAISED WITH US OR BY INDIVIDUAL MEMBERS

4 Subject to the above very important caveats I set out below a number of suggestions for reform emanating either from individuals with whom we have spoken or from one or more members of the Commission I set them out in no particular order of priority or merit and no inference should be drawn from the order in which the arguments for and against each are marshalled The suggestions which may or may not be the subject of further consideration and recommendations by the Commission and some of which we may decide not to pursue are these

Using retired judges to determine admissibility while the change which has been introduced by Protocol 14 under which a single judge may now determine admissibility has undoubtedly helped much of the time of the Courtrsquos judges is still being spent on admissibility issues (inadmissible applications are estimated to account for over 90 of the Courtrsquos caseload) The Interlaken and Izmir Declarations call on the Committee of Ministers to consider further filtering mechanisms for inadmissible cases In this context one option could be to engage either retired judges of the Court or of appellate courts in Member States to undertake this work on a contract basis possibly as an emergency task force to clear the current backlog Similar proposals for appointing judges or committees of judges solely to decide admissibility have in the past met with concerns that few judges would be interested in carrying out such work and that may well be true Equally it is possible that there might be more interest in such arrangements if they were to be introduced within the framework of a dedicated time bound task-force In any event it would be important to consider the extent to which such proposals would create additional bureaucratic processes

Authorising officials of the Registry to take decisions on admissibility a more fundamental change but with the same objective would be to put the responsibility for determining admissibility with the Registry rather than the judiciary of the Court We understand that this is effectively already occurring under the supervision of a single Judge While many might object to the possibility of admissibility being determined by officials rather than judges such an approach would in some ways be similar to the system originally put in place by the founders of the Convention by which the secretariat of the Commission considered cases in the first instance subject to oversight by the legally-qualified Commissioners Only cases that had passed the admissibility


test could ever reach the Court on a reference by the Commission Alternatively the objection could be overcome by investing a small number of the Registry officials with judicial status as recommended by the Evaluation Group in 200111

Requiring applications to the Court to be signed by a lawyer or NGO it was clear from the Commissionrsquos meetings in Strasbourg that proposals originating within the Court itself are being considered for a requirement to be introduced for lawyers or non-governmental organisations to have to sign applications to the Court The aim of this proposal would be to involve the legal profession and NGOs in sharing responsibility for reducing the very high number of manifestly inadmissible cases which currently arrive at the Court The requirement would not be for individuals to have full legal representation and safeguards would need to be considered to ensure that well-founded cases were not rendered inadmissible simply because it was not possible or practical in the local circumstance to gain a lawyerrsquos signature Those who believe that this proposal has merit consider that it might help to reduce the number of patently inadmissible cases with which the Court has currently to deal without interfering with the right of individual petition That would need however to be balanced against the risk that such a requirement could make it too difficult for those with admissible and serious allegations that their Convention rights had been infringed to gain access to the Court

Enabling the Court to deliver advisory opinions while some current reform proposals reflecting those made previously by the Group of Wise Persons in 2006 suggest forms of cooperation between the Court and national courts via requests by the latter for advisory opinions some believe that further thought should be given to whether the Court might be given the power to deliver an advisory opinion of its own initiative Under this proposal the Court could choose to deliver as an alternative to a finding that a breach of the Convention has or has not occurred an advisory opinion to the Member State concerned This it is argued could give the Court greater flexibility in those cases where it believed that a case was essentially well-founded but not sufficiently serious or clear cut as to require a specific and binding determination by the Court On the other hand there could be a risk of such opinions leaving the legal position in the Member State uncertain and of the parties not being clear as to what was or was not required of them Further some express concern that this proposal would not be consistent with the Courtrsquos task of adjudicating concrete cases and where appropriate ordering effective remedies while advising respondent States about the measures needed to secure compliance with the Convention

Enabling preliminary references to be made from the highest national court the Izmir Declaration invites the Committee of Ministers to consider a ldquoprocedure allowing the highest national courts to request advisory opinions from the Court concerning the interpretation and application of the Convention that would help clarify the provisions of the Convention and the Courtrsquos case-law thus providing further guidance in order to assist States Parties in avoiding future violationsrdquo As noted above and drawing upon the practice in European Union


law it may be possible to consider whether under certain well-defined conditions the highest national court might be able to refer to the Court a question on a point of law arising under the Convention leaving it to the national court then to apply the legal conclusion to the facts of a particular case This it is argued would enhance the principle of subsidiarity and could ndash potentially at least ndash remove some cases from the Courtrsquos caseload Others however express concern that such a procedure unless the Court in Strasbourg were able to respond to such requests far more quickly than its present case load would appear to allow would delay the ultimate resolution of the cases concerned to an unacceptable degree They also note that the Convention system presupposes that it is for the national court to decide the facts and decide whether Convention rights have been infringed recourse to the Court being open only after all available and effective domestic remedies have been exhausted

Introducing a Statute of the Court which would allow the working practices of the Court to be changed more quickly reform proposals in the Interlaken and Izmir Declarations refer to a Statute for the Court as a possible means by which to introduce a simplified procedure for amending provisions of the Convention relating to organisational matters possibly requiring only a resolution of the Committee of Ministers for approval The Evaluation Group and the Group of Wise Persons also recommended such simplified procedures12 Such a measure could go some way to increasing the flexibility of Member States to undertake future reforms where necessary However some consider that it may be difficult to persuade the Governments of all 47 States to widen the Courtrsquos ability to manage its cases and exercise a wider area of discretionary judgment Some members of the Commission who share the views expressed by some commentators that the Court is at times too interventionist are also concerned that this tendency might be reinforced by a Statute conferring greater independence on the Court in respect of procedural topics

Considering some form of lsquodemocratic overridersquo or dialogue in order to recognise the legitimate role of Parliaments and the democratic process in all of the Member States In states where there is a supreme court with powers to strike down legislation there is always some mechanism usually requiring an enhanced majority or approval in more than one forum whereby the democratic will can ultimately prevail over court decisions Section 33 of the Canadian Charter of Rights and Freedoms is one such power Some believe that something equivalent should be considered within the Council of Europe and that fundamental reforms of the Strasbourg Court need to balance greater focus and efficiency on the one hand with greater democratic accountability on the other The Interlaken Declaration called for a simpler procedure to amend Convention provisions of an organisational nature an extension of that approach could be to empower other institutions of the Council of Europe to add qualifications to Convention rights This could allow the effect of a Court decision to be overridden if such was the will of the Parliamentary Assembly or Committee of Ministers or perhaps of both acting collectively A variant of this approach might be a power in the Committee of Ministers to determine that a


Court judgment should not be enforced if it considered that that course of action was desirable and justifiable in the light of a clear expression of opinion by the relevant Member Statersquos most senior democratic institution Another variant could be a requirement in respect of proposed ground-breaking findings of violations for the Court first to consult the other Council of Europe institutions and for the Court to take a collective expression of opinion into account

Those opposed to this concept argue that any possibility of override is fundamentally inconsistent with the Rule of Law inherent in the Convention system and with the concept of the Convention as a charter of fundamental rights and freedoms They ask how if a right or freedom is fundamental it can be right to allow any legislature however democratic to override it They point for example to the fact that there are examples in history of discriminatory laws being passed by democratically elected assemblies They note that the ECHR as a judicial body is an essential protection against majorities voting to discriminate against minorities

For some members of the Commission this area is a key issue and of sufficient importance that in the view of one member at least they would have wished to have added an additional principle to those mentioned as guiding the interim advice namely that the democratic legitimacy of the Strasbourg Court should be better assured while at the same time ensuring its judicial independence This is however a matter which the Commission has yet to discuss and address

Others argue not that there should be a mechanism of democratic override but that the absence of any such override should act as a check on ldquoactivismrdquo on the part of the Court The jurisdiction of the Court should be defined in such a way as to require it to respect the proper role of democratic institutions in determining social and economic priorities particularly those that involve allocation of financial and other resources However those who question the charge of judicial activism argue that there is no evidence that the Court can fairly be criticised for over-reach and that the Court in fact allows the State authorities a wide margin of appreciation or area of discretionary judgment based on the principle of subsidiarity They point to the fact that UK courts are criticised in the same way when they interpret and apply the law in ways that create controversy but that a purposive approach to statutory interpretation which updates the law is well established in the common law

Introducing subsidiarity reviews by analogy to the EU treaty the Lisbon Treaty introduced into the procedures of the EU the possibility of review by the European Court of Justice of a proposal where a challenge to it on the ground of infringement of subsidiarity is made supported by 25 (or in other cases 33) of the parliamentary voting strength of the EU Member States The principle of one institutionrsquos judgment on subsidiarity being open to challenge by another might be adopted in the Council of Europe in various ways One could be a power in the Committee of Ministers to resolve that a judgment should not be enforced on the ground that it infringed the principle of subsidiarity This would arguably reflect the Izmir Declaration which states that


Yours sincerely

The Conference 2 invites the Committee of Ministers to apply fully the

principle of subsidiarity by which the states Parties have in particular the choice of means to deploy in order to conform

to their obligation under the Convention

An alternative approach could be to leave the decision on subsidiarity with the Court but to build in new arrangements for the submission to the Court prior to a casersquos final consideration of formal memoranda contending that the proposed finding of violation is a matter on which democratic states should have a choice of means to comply with the Convention A third approach could be acceptance of the jurisdiction of an external international body to determine a challenge that the Strasbourg Court had exceeded its competence by an infringement of the principle of subsidiarity

A counter-argument to such an approach is that the Court and the Committee of Ministers already give full effect to the principle of subsidiarity and that the Court requires no direction or guidance from the political branches of international or national governments on how to interpret and apply Convention law A further counter-argument is that unlike the EU there is within the institutions of the Council of Europe no directly elected body such as the European Parliament to which such a role might be given

CONCLUSION

5 I hope this letter is useful to you at least in indicating some of the further areas into which the Commission may decide to enquire further as part of its future work programme As with my parallel letter conveying the Commissionrsquos interim advice on Court reform I am intending to publish this letter so that others are able to comment upon it if they so wish in parallel with that advice once Parliament returns in early September







Annex D

The Commissionrsquos Discussion Paper Do we need a UK Bill of Rights

August 2011


Discussion Paper

Do we need a UK Bill of Rights

August 2011 revised September 2011





1

Contents

Introduction 3

Questions for Public Consultation 4

Background 5

The UK Constitution 5

Parliamentary sovereignty 5

The Rule of Law 5

International Human Rights Conventions 5

The Origins of the European Convention on Human Rights 6

Convention rights and freedoms 7

Giving effect to the Convention 7

How the Convention rights are given effect in UK law 8

The Human Rights Act 1998 8

The Joint Parliamentary Human Rights Committee 9

The Equality and Human Rights Commission 10

Scotland 10

Northern Ireland 10

Wales 11

European Union rights 11

We hope to hear from you soon 11

Alternative formats 12

Confidentiality 12

Endnotes 13

2

Introduction

1 The Commission on a Bill of Rights is an independent Commission set up by the Government1 and required by our Terms of Reference2

ldquoTo 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

ldquoTo 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

ldquoTo provide advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of and following the UKrsquos Chairmanship of the Council of Europe

ldquoTo consult including with the public judiciary and devolved administrations and legislatures and aim to report no later than by the end of 2012rdquo

2 The Commission has decided to begin to consult by seeking views from the public on the four questions set out in paragraph 5

3 As regards the need to reform the European Court of Human Rights on which we are also asked to give advice to the Government we are not asking detailed questions at this stage The Government has asked for our preliminary views on this within a limited timeframe and our further views will be given at a later stage when we may consult further Any views on this aspect of our work which you would like to give us at this stage would however be welcome As background we include the text of the Interlaken Declaration and a subsequent Declaration agreed by the forty seven Member States of the Council of Europe at Izmir

4 The purpose of this Discussion Paper is to begin the process of public consultation

3

Questions for Public Consultation

5 The four questions on which we seek your views are

(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

6 The remainder of this paper sets out background to these questions and is put forward as an aid to understanding It aims to describe the current position in purely factual terms

4

Background

The UK Constitution

7 The United Kingdom is unlike most other democratic countries in Europe and the Commonwealth (apart from New Zealand) in having neither a comprehensive written constitution nor a constitutional charter of fundamental rights which is supreme over ordinary law and able to be amended only by a special prescribed procedure We have no comprehensive constitutional charter which establishes and gives limited powers to the institutions of government or which confers and protects the civil and political rights of citizens or which restricts Parliamentary sovereignty

8 There are thus no British rights that are lsquofundamentalrsquo in the sense that they enjoy special constitutional protection against Parliament The liberties of the subject are implications derived from two principles The first principle is that we may say or do as we please provided that we do not transgress the substantive law or the legal rights of others The second principle is that the Crown and public authorities may only act if they have the power to do so These powers can derive from legislation common law and ndash as far as the Crown is concerned ndash the royal prerogative Our laws are a combination of statute law and the principles of the common law and equity developed by our courts Our system is based upon the constitutional principles of Parliamentary sovereignty and the Rule of Law

Parliamentary sovereignty

9 The principle of Parliamentary sovereignty means that the power to legislate may be exercised only by Parliament The principle of Parliamentary sovereignty also means that Parliament cannot limit the power of a future Parliament to amend or repeal legislation

The Rule of Law

10 The Rule of Law means among other things that it is the responsibility of the independent judiciary to interpret and apply the law impartially and fairly free from government influence or interference

11 Our constitutional system is also different from that of some other countries in that international treaties do not automatically become part of our law Parliamentary legislation such as the European Communities Act 1972 is passed to bring international obligations into domestic law

International Human Rights Conventions

12 In December 1948 the UN General Assembly adopted the Universal Declaration of Human Rights recognising the universality of human rights In 1976 two UN International Covenants ndash a Covenant on Civil and Political Rights and a Covenant on Economic Social and Cultural Rights ndash came into force They are reinforced by several UN human rights conventions for example against torture

5

race and sex discrimination and protecting the rights of the child and of the disabled

13 These international treaties are binding in international law on the UK but they have not been directly incorporated by legislation into UK law However their reporting mechanisms and comments influence UK policy and practice and are taken into account by our courts and lawmakers where relevant Our courts operate a presumption that where a treaty has been accepted by the Government on behalf of the UK and its citizens Parliament is presumed to legislate to give effect to the terms of the treaty when introducing legislation in that area

The Origins of the European Convention on Human Rights

14 The Convention was created in the aftermath of the Second World War which convinced many European politicians and jurists of the need to guard against the rise of dictatorships and to reduce the risk of relapse into another European war This led to the creation in 1949 of the Council of Europe Members of the Council are obliged to accept the principles of the rule of law and the enjoyment by all peoples within their jurisdiction of human rights and fundamental freedoms

15 One of the Council of Europersquos first acts was to draft a human rights Convention for Europe conferring enforceable rights upon individuals against sovereign states intended to provide a European mechanism for the enforcement of certain rights

16 On 23 January 19513 in accordance with standard UK practice for the ratification of treaties the text of the Convention was laid before both Houses of Parliament for 21 sitting days in accordance with the lsquoPonsonby Rulersquo4 No member of either House of Parliament prayed against it thus there was no Parliamentary debate However the Convention was discussed during a House of Commons debate on the Council of Europe on 13 November 1950 one week after the UKrsquos signature of the Convention5 The UK was the first state to ratify the Convention on 8 March 1951

17 The Convention came into force on 23 September 1953 The Convention has now been ratified by the forty-seven Member States of the Council of Europe with a population of over 800 million people including Russia and the majority of former countries of the Soviet bloc

18 Subsequent to its introduction the Convention has been amended or supplemented by several Protocols Additional rights to protection of property education and free elections were added by Protocol No1 to the Convention ratified by the UK on 3 November 1952 The UK has since ratified Protocol No 6 on abolishing the death penalty6 and Protocols Nos 11 and 14 which have amended the Convention enforcement machinery7 It has not ratified Protocols Nos 4 7 nor 12 which contain further rights8

19 At its inception only countries and not individuals could bring complaints under the Convention However the right of individual complaint or petition to the European Commission of Human Rights (as it then was) was accepted by the UK in January 1966 without Parliamentary debate

6

Convention rights and freedoms

20 The Convention identifies the following human rights and freedoms

bull Right to life (Article 2)

bull Prohibition of torture or inhuman or degrading treatment or punishment (Article 3)

bull Prohibition of slavery or servitude or forced or compulsory labour (Article 4)

bull Right to liberty and security(Article 5)

bull Right to a fair trial (Article 6)

bull No punishment without law (Article 7)

bull Right to respect for private and family life home and correspondence (Article 8)

bull Freedom of thought conscience and religion (Article 9)

bull Freedom of expression (Article 10)

bull Freedom of peaceful assembly and association (Article 11)

bull Right to marry (Article 12)

bull Right to an effective remedy (Article 13)

bull Prohibition of discrimination (Article 14)

21 Protocol No 1 includes the following

bull Protection of property (Article 1)

bull Right to education (Article 2)

bull Right to free elections (Article 3)

Giving effect to the Convention

22 Article 1 of the Convention provides that contracting states must ldquosecure to everyone within their jurisdictionrdquo the Convention rights States and their public authorities ndash legislative executive and judicial ndash are required to respect these Convention rights and freedoms and have positive obligations to secure them within their national legal systems Article 13 of the Convention obliges States and their public authorities to provide effective remedies for violations of the Convention rights

23 At the same time Article 35(1) of the Convention provides that (unless they are ineffective) domestic remedies must have been exhausted before an application may be made to the Strasbourg Court This is to provide the State with the opportunity to remedy the matter itself The Strasbourg Court is thus intended mainly to be a supervisory Court of last resort and the main responsibility for enforcing human rights is meant to be that of the domestic authorities who are in the best position to do so

24 Article 46 of the Convention also imposes a duty on contracting states to abide by final judgments of the European Court of Human Rights where the Court decides that there has been a violation of the Convention The supervision of the

7

execution of final judgments of the Strasbourg Court is carried out by the Committee of Ministers of the Council of Europe which decides whether the State has adopted sufficient individual and general measures to enable the case to be closed9 If a state were unwilling or unable to abide by a final judgment it would have the option of withdrawing from the Convention system Article 58 of the Convention provides that a state has to give six monthsrsquo notice in order to denounce the Convention

How the Convention rights are given effect in UK law10

25 The obligation to provide effective remedies under Article 13 of the Convention is met in the UK by a combination of common law and statute law

26 Statutes and other documents such as Magna Carta in 1215 and the Declaration of Arbroath in 1320 the later Bill of Rights and Scottish Claim of Right in 1689 and the Reform Acts of the 19th and early 20th centuries hand in hand with developments of the common law reflect the traditions of liberty on which our current framework of rights and responsibilities is built The Convention sought to reflect that tradition Our courts have recognised constitutional rights inherent in the common law as matching some Convention rights including a right of access to justice a right to freedom of expression a right to respect for private life and a right to equal treatment without discrimination

27 Apart from specific legislation giving direct or indirect effect to particular Convention rights the main legislative ways in which the Convention rights have been given effect is by means of the Human Rights Act 1998 and the devolution legislation for Northern Ireland Scotland and Wales

The Human Rights Act 1998

28 The Human Rights Act provides legal remedies for violations of Convention rights while adhering to the doctrine of Parliamentary sovereignty by withholding from our courts the power to strike down Acts of Parliament that are held to be incompatible with Convention rights

29 The Act requires our courts and tribunals to take into account judgments of the European Court of Human Rights where they are relevant So far as possible it also requires legislation to be read and given effect in a way which is compatible with the Convention rights Where a specified higher court considers that a provision in an Act of Parliament is not compatible with a Convention right the Human Rights Act empowers the court to make a declaration of incompatibility

30 A declaration of incompatibility does not affect the validity continuing operation or enforcement of the provision in respect of which it is given So the relevant legislative provision continues to have force and effect despite its incompatibility with Convention rights until such time as it is amended It is for the Government to decide whether to seek to amend the law If it decides not to do so the alleged victim of a violation may have recourse to the European Court of Human Rights but has no further remedy under UK law

31 The Human Rights Act also makes it unlawful for any public authority (which includes courts and tribunals but excludes Parliament) to act in a way which is

8

incompatible with a Convention right (apart from where they are required by primary legislation to act in that way)

32 A person who claims that a public authority has acted or proposes to act in a manner made unlawful by the Act may bring proceedings provided that the claimant is a victim within the meaning of the Convention The Act empowers a court or tribunal to grant appropriate remedies when it finds that a public authority has acted or proposes to act in a way which is incompatible with Convention rights and has therefore acted unlawfully However no award of damages may be made unless it is necessary having regard to any other remedy to afford lsquojust satisfactionrsquo to the claimant When deciding whether to award damages or the amount of an award the court or tribunal must take into account the principles applied by the Strasbourg Court in awarding compensation under Article 41 of the Convention

33 The Act provides that a personrsquos reliance on a Convention right does not restrict any other right or freedom conferred on him by or under any law having effect in any part of the UK The purpose of this is to safeguard more generous rights which may be enjoyed apart from the Human Rights Act whether at common law or under other legislation

34 Section 19 of the Act requires a Minister in charge of a Bill to make a statement before the second reading of the Bill that in his or her view its provisions are compatible with Convention rights or if unable to make such a statement of compatibility that the Government nevertheless wishes the House to proceed with the Bill The purpose is to ensure that in the preparation of a Bill and its passage through Parliament consideration is given to any implications the Bill may have in relation to Convention rights and to ensure that any relevant issues are identified at an early stage so that they can be the subject of informed debate in Parliament

The Joint Parliamentary Human Rights Committee

35 So far as the work of Parliament is concerned an independent cross-party Joint Parliamentary Committee of both Houses of Parliament (the JCHR) enables systematic Parliamentary scrutiny of government measures for their compatibility with the Convention rights and the other human rights conventions to which the UK is party11 The JCHR scrutinises proposed legislation for compatibility with the UKrsquos obligations under the Convention and other human rights treaties by which the UK is bound Where necessary it questions Ministers The JCHR also monitors the Governmentrsquos response to judgments on human rights from the European and UK courts and conducts thematic inquiries into particular human rights issues (for example deaths in custody care for the elderly business and human rights human trafficking extradition and deportation procedures the operation of anti-terrorist legislation and the right of disabled people to independent living)

9

The Equality and Human Rights Commission

36 The Equality and Human Rights Commission (EHRC) was set up by the Equality Act 2006 with duties not only as regards equality and diversity but also as regards Convention and other human rights12 It has monitoring and advisory powers The EHRC may institute or intervene in legal proceedings and may rely in judicial review on alleged breaches of the Convention rights even though it is not a victim or potential victim13

Scotland

37 Scotland is a separate jurisdiction from England and Wales and from Northern Ireland with its own distinctive legal history and traditions its own body of common law and statute law its own system of courts and its own legal profession However the Human Rights Act applies to Scottish public authorities in the same way as it applies to public authorities elsewhere in the UK

38 The Convention has been given further effect in Scotland by virtue of the devolution settlement Under the Scotland Act 1998 actions by members of the Scottish Government14 and legislation enacted by the Scottish Parliament15 must be compatible with the Convention Legislation or actions which are found to be incompatible by the courts are liable to be declared to be beyond the powers conferred and to be held invalid

39 A Scottish Commission for Human Rights was set up by Act of the Scottish Parliament in 200616 with a general duty to promote human rights and to encourage best practice in relation to human rights including not only the Convention rights but those in other human rights treaties ratified by the UK17

Northern Ireland

40 Under the terms of the Northern Ireland Act 1998 Ministers and Northern Ireland departments are not permitted to act in a way which is incompatible with the Convention18 Similarly the Northern Ireland Assembly does not have competence to legislate in a manner incompatible with the Convention19

41 The Northern Ireland Human Rights Commission (NIHRC) is an independent statutory body set up in 1999 with wide functions including giving assistance to individuals in court proceedings and bringing proceedings itself It is required by statute to advise the Secretary of State for Northern Ireland on the scope for defining in a Bill of Rights for Northern Ireland to be enacted by the Westminster Parliament rights supplementary to those in the Convention The Belfast (Good Friday) Agreement of 1998 states that the Bill should reflect the particular circumstances of Northern Ireland drawing as appropriate on international law and experience

42 On 10 December 2008 the NIHRC presented its Advice on a Bill of Rights for Northern Ireland to the Government It made a number of recommendations for inclusion in a Bill of Rights20

43 The Government published its paper ldquoA Bill of Rights for Northern Ireland Next Stepsrdquo for consultation and the NIHRC made a written response to that paper on 17 February 201021

10

Wales

44 The Laws in Wales Act 1535 provided that England and Wales were united and the Welsh and the English were to be subject to the same laws and have the same privileges Since that time there has been one legal system for England and Wales However the Government of Wales Act 1998 which has since been modified by the Government of Wales Act 2006 provides an additional route for the application of the Convention to Wales

45 The devolution arrangements set out in the Government of Wales Act 2006 place a requirement upon the National Assembly for Wales22 and the Welsh Ministers23 to act compatibly with the Convention Following a referendum the legislative competence of the Assembly was extended in May 2011 to enable the Assembly to enact primary legislation on its own initiative within the subject areas listed in Schedule 7 to the Government of Wales Act 200624 Legislation that is incompatible with Convention rights is outside of the legislative competence of the Assembly and is liable to be held invalid25

European Union rights

46 In 2007 the institutions of the European Union proclaimed the EU Charter of Fundamental Rights26 This includes a number of social economic and political rights and principles that do not appear in the Convention The Charter applies to the institutions of the European Union and to the Member States ldquoonly when they are implementing Union lawrdquo27 The Charter where it applies has the same legal force as the Treaties28 Under Protocol 30 to the Lisbon Treaty the Charter does not contain any new justiciable rights applicable to the United Kingdom or Poland The Treaties also provide that fundamental rights guaranteed by the Convention and the common constitutional traditions of the Member States are general principles of EU law29

We hope to hear from you soon

47 We hope to begin hearing your views on a Bill of Rights for the UK and the related issues raised by our Terms of Reference We would like to receive your views by 11 November 2011 Unless you specifically request otherwise all responses will be made public

48 All responses should be sent to the inbox or address below

responsescommissiononabillofrightsgsigovuk

Commission on a Bill of Rights Postpoint 955 102 Petty France London SW1H 9AJ

11

Alternative formats

If you require this information in an alternative language format or have general enquiries about the Commission on a Bill of Rights please contact us by email at enquiriescommissiononabillofrightsgsigovuk telephone us at 020 3334 2486 or write to us at


Confidentiality

All written representations and evidence provided to the Commission will unless publication is unlawful be made public unless specifically requested otherwise If you would like any of the information provided in your response to be treated confidentially please indicate this clearly in a covering note or e-mail (confidentiality language included in the body of any submitted documents or in standard form language on e-mails is not sufficient) identifying the relevant information and explaining why you regard the information you have provided as confidential Note that even where such requests are made the Commission cannot guarantee that confidentiality will be maintained in all circumstances in particular if disclosure should be required by law If you have any particular concerns about confidentiality that you would like to discuss please contact the Commission at enquiriescommissiononabillofrightsgsigovuk

The Commission is not subject to the requirements of the Freedom of Information Act 2000 However once the Commission has completed its work its papers are likely to be passed to the Government In these circumstances information formerly held by the Commission may then be subject to the requirements of that legislation

The Commission is a data controller within the meaning of the Data Protection Act 1998 Any personal data provided will be held and processed by the Commission and its Secretariat only for the purposes of the Commissionrsquos work and in accordance with the Data Protection Act 1998 Once the Commission has completed its work then any personal data held is likely to be passed to the Government for the purpose of public record-keeping

12

Endnotes 1 The Commissionrsquos creation was announced by Mr Mark Harper MP (Parliamentary

Secretary Cabinet Office) on 18 March 2011 in a written Ministerial Statement (HC Deb 18 March 2011 c 32WS) as follows

ldquoThe Government have established an independent Commission to investigate the creation of a UK Bill of Rights fulfilling a commitment we made in our Programme for Government The Commission will explore a range of issues surrounding human rights law in the UK and will also play an advisory role in our continuing work to press for reform of the European Court of Human Rights in Strasbourg

ldquoThe UK will be pressing for significant reform of the European Court of Human Rights building on the reform process underway in the lead up to our Chairmanship of the Council of Europe later this year We will be pressing in particular to reinforce the principle that states rather than the European Court of Human Rights have the primary responsibility for protecting Convention rights

ldquoThe Commission will be chaired by Sir Leigh Lewis KCB a former permanent secretary at the Department for Work and Pensions with a long career in public service He will be joined on the Commission by Jonathan Fisher QC Martin Howe QC Baroness Kennedy of The Shaws QC Lord Lester of Herne Hill QC Philippe Sands QC Anthony Speaight QC Professor Sir David Edward QC and Dr Michael Pinto-Duschinsky

ldquoThe Commission members have between them extensive legal expertise and experience and we expect the Commission to take into account a broad range of views as it fulfils its remit In addition an advisory panel will be established to provide advice and expertise to the Commission on issues arising in relation to Scotland Wales and Northern Ireland The Commission will report jointly to the Deputy Prime Minister and the Secretary of State for Justice The Commission will be supported by a small secretariat of civil servantsrdquo

2 The Coalitionrsquos Programme for Government said ldquoWe will establish a Commission to investigate the creation of a British 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 British law and protects and extends British liberties We will seek to promote a better understanding of the true scope of these rights and obligationsrdquo See Cabinet Office httpwwwcabinetofficegovuksitesdefaultfilesresourcescoalition-_programme_for_governmentpdf

3 See HC Deb 5 February 1951 vol 483 cc 159-60W

4 The power to make treaties is a Prerogative power vested in the Crown but under the Ponsonby Rule the Government lays all treaties subject to ratification (with limited exceptions) before both Houses of Parliament for 21 sitting days before

13

ratification (or its equivalent) is effected Foreign Office ldquoPonsonby Rulerdquo httpwwwfcogovukresourcesenpdfpdf4fco_pdf_ponsonbyrule See also Gardiner Richard K International Law (Edinburgh Pearson Education Limited 2003) pp 148-9

5 See HC Deb 13 November 1950 vol 480 cc 1392-504

6 The UK signed Protocol No 4 on 16 June 1963 but has yet to ratify Protocol No 4 entered into force for the other signatories from 2 May 1968 The UK signed Protocol No 6 on 27 January 1999 and ratified it on 20 May 1999 Protocol No 6 entered into force for the UK on 1 June 1999

7 The UK signed Protocol No 11 on 11 May 1994 and ratified it on 9 December 1994 Protocol No 11 entered into force on 1 November 1998 The UK signed Protocol No 14 on 13 July 2004 and ratified it on 28 January 2005 Protocol No 14 entered into force on 1 June 2010

8 The full text of the Convention and its Protocols can be found at httpwwwechrcoeintNRrdonlyresD5CC24A7-DC13-4318-B457-5C9014916D7A0EnglishAnglaispdf

9 See generally Supervision of the execution of judgments of the European Court of Human Rights 4th Annual Report (2010) Council of Europe Committee of Ministers April 2011

10We refer to ldquoUK lawrdquo for convenience while recognising that there are different laws and courts of England Northern Ireland Scotland and Wales

11 See httpwwwparliamentukcommonsselcomhrhomehtm

12Sections 8 and 9

13 Section 30

14 Section 57(2)

15 Section 29

16The Scottish Commission for Human Rights Act 2006 (2006 asp 16)

17 See httpwwwscottishhumanrightscom

18 Section 24(1)(a)

19 Section 6

20 These included

bull right to equality and prohibition of discrimination

bull right to health

bull education rights

bull freedom from violence exploitation and harassment

14

bull right to identity and culture

bull right to civil and administrative justice

bull rights to liberty and fair trial

bull language rights

bull rights of victims

bull democratic rights

bull right to an adequate standard of living

bull right to accommodation

bull right to work

bull environmental rights

bull childrenrsquos rights

21 See httpwwwnihrcorgbor

22 Section 94

23 Section 81(1)

24The Government of Wales Act 2006 (Commencement of Assembly Act Provisions Transitional and Saving Provisions and Modifications) Order 2011 (SI20111011)

25Section 108 Government of Wales Act 2006 (c 32)

26The text of the Charter can be found at httpeur-lexeuropaeuJOHtmldouri=OJC2007303SOMenHTML

27 Article 511

28Treaty on European Union article 6(1) 2010C 8301


15

copyMembers of the Commission on a Bill of Rights 2011

Alternative format versions of this report are available on request from enquiriescommissiononabillofrightsgsigovuk

16


Annex E

The Commissionrsquos Consultation Paper A Second Consultation July 2012



July 2012







Contents

Chairrsquos Foreword 50

Background 51

A UK Bill of Rights 52

Incorporation of the Convention 54

Should the Human Rights Act be replaced or might any UK Bill of Rights sit alongside the Human Rights Act 55

How should the rights in any UK Bill of Rights be written 55

Additional rights 56

A Right to Equality 56

A Right to Administrative Justice 57

A Right to Trial by Jury 58

Rights in criminal and civil justice 59

Rights for victims 59

Socio-economic rights 60

Childrenrsquos rights 61

Environmental rights 61

Balancing certain rights 62

Definition of lsquopublic authorityrsquo 63

Responsibilities 64

The duty to take Strasbourg case law into account 66

Declaration of incompatibility 66

Northern Ireland Scotland and Wales 67

Other issues 69



Confidentiality 70

List of Questions in this Consultation Paper 71

Endnotes 73


Chairrsquos Foreword

Our Commission is now at a significant stage in its work Over the last 15 months we have consulted widely met with numerous groups and individuals from around the UK including Northern Ireland Scotland and Wales and held a series of seminars at which we have asked for views on the key questions in our terms of reference

Now we have to decide what to recommend In particular we have to decide whether to recommend a UK Bill of Rights and if so what form and content it should have

I want to stress as the Commissionrsquos Chair that we have reached no conclusions on this key question at this stage If we do decide to recommend a UK Bill of Rights we will want to explain why and set out what form we think such a Bill might take If we decide not to recommend a Bill of Rights we will equally want to explain our reasons for arriving at that conclusion though we may still want to make some observations about such a Bill against the possibility that the Government nevertheless decides to introduce one

This second public consultation gives you a further opportunity to influence our deliberations by giving us your views both on the fundamental question of whether you believe that a UK Bill of Rights would or would not be beneficial and on what form you believe any such Bill might take It poses a set of questions on both of these issues on which we would greatly welcome your views

Time is now important in that we are committed to reporting our recommendations to the Government by the end of this year So we are asking for your views by the end of September at the latest to ensure that we can take them into account in reaching our final conclusions

If you were one of the over 900 organisations and individuals who responded to our first public consultation last summer you do not need to repeat what you said then which we have already taken into account in our work But we would like to hear from you again on the questions set out in this paper Equally if you did not respond to our first consultation that is no bar whatsoever to giving us your views now which we would greatly welcome

The questions which our Commission is asked to consider go to the heart of the kind of country we want to be You can help us to give the best answers we can by replying to this consultation Thank you

Sir Leigh Lewis Chair of the Commission on a Bill of Rights


Background

1 The Commission on a Bill of Rights was established by the Government in March 2011 to investigate the creation of a UK Bill of Rights and to provide advice on reform of the European Court of Human Rights1

2 In July 2011 we provided interim advice to Government and a parallel letter to Ministers on reform of the Court (see httpwwwjusticegovukaboutcbr) In August 2011 we published a discussion paper that sought views on certain key questions including Do we need a UK Bill of Rights If so what should it contain How should it apply to the UK as a whole including its four component countries of England Northern Ireland Scotland and Wales

3 We received over 900 responses to this discussion paper which have been very valuable to us in our consideration of the many issues raised by our inquiry We have posted a list of respondents as well as copies of all the responses we received on the Commissionrsquos webpages (see httpwwwjusticegovukaboutcbrconsultationshyprog) We are very grateful for the effort and thought that went into providing these contributions to us

4 In addition to our review of these responses we have been carrying out a substantial programme of consultation on a UK Bill of Rights and on reform of the European Court of Human Rights We have held meetings in Belfast Cardiff Edinburgh Birmingham Oxford Strasbourg and in London and we have met with a wide range of people and organisations from across the UK including Parliamentarians from all of the legislatures in the UK senior members of the judiciary community and human rights organisations and members of the wider public We have held three major seminars ndash the outcomes of which you can read on our website ndash and held many meetings with interested organisations public authorities and academics We have also regularly placed on our website information which we hope will help people to see the work we have been engaged on including

a minutes of all of the Commissionrsquos monthly meetings

b detailed summaries of our discussions on the issues of Parliamentary sovereignty hypothetical options for a UK Bill of Rights and issues relating to Northern Ireland Scotland and Wales (see the minutes of the Commissionrsquos meetings for November 2011 December 2011 and January 2012 respectively httpwwwjusticegovukaboutcbrmeetings) and

c detailed summaries of the seminars that we co-hosted with the Arts and Humanities Research Council on 23 February 2012 and with All Souls College Oxford on 21 March 2012 as well as a transcript of our seminar held in Birmingham on 13 June 2012 (see httpwwwjusticegovukaboutcbr)

5 Our consultations to date have been valuable and have contributed to our deliberations and our thinking Our consideration of the many issues that we face has evolved considerably in the 15 months since we started our work We are now at the


point where we would like both to provide a final opportunity for people to give us their views on the key issue of whether they believe the UK should have a Bill of Rights and if so to ask some further questions about the kind of UK Bill of Rights that people might want to see if we were to recommend one We wish to stress however that we have reached no decisions yet on whether to recommend such a Bill Asking these questions should not in any way be assumed to mean that we are likely to make such a recommendation or that we are inclining towards doing so But to help us make up our minds we do want to know more about peoplersquos views both on whether they favour a UK Bill of Rights or not and if so on what form they think such a Bill might take

6 We are conscious that many respondents have already given us their views on some of these issues in their replies to our first discussion paper We have already taken careful note of these replies and we do not need respondents to write to us again with the same reply But if your thinking has evolved or changed since your earlier reply or you did not respond to our earlier consultation this is a further opportunity to let us know what you think

7 We are due to report to Government no later than December of this year We not only welcome your contributions to these issues but we consider them vital to our deliberations

8 We therefore request that responses to this consultation should reach us by no later than 30 September 2012

A UK Bill of Rights

9 In the discussion paper that we published in August 2011 we asked whether you thought that we needed a UK Bill of Rights which is the core question that we are asked to investigate in our terms of reference We also asked what you thought any UK Bill of Rights should contain how it should apply to Northern Ireland Scotland Wales and England and whether there were any other matters on which you wished to provide your views These are questions on which we have also received views throughout our consultations

10 Of the respondents to our first consultation paper approximately a quarter advocated a UK Bill of Rights just under half opposed such a Bill with the remainder being neither clearly for nor against such a Bill

11 A variety of models for a UK Bill of Rights were envisaged both by those advocating and by those opposing such a Bill In particular a section of those who were against a Bill of Rights opposed it because they considered that a UK Bill of Rights would be ldquoHRA (Human Rights Act) minusrdquo whilst a proportion of those supporting such a Bill did so because they envisaged it as building on the Human Rights Act by the inclusion of additional rights


12 Views were expressed by opponents of a UK Bill of Rights in particular that the Human Rights Act 1998 was already a legally enforceable bill of rights and that it was working well and that even if it had flaws a UK Bill of Rights was not the answer because it would pose risks to rights protections in the UK These risks in the view of some stemmed from a political motivation to dilute human rights protections and to reduce the powers of the European Court of Human Rights

13 Some respondents in particular in Northern Ireland Scotland and Wales were also concerned that any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland or if it were undertaken without regard to the implications of the independence debate in Scotland It was also argued by many of these respondents that there was little or no call for a UK Bill of Rights from people in Northern Ireland Scotland or Wales It was also argued by some that the protection of rights was now a matter for the devolved legislatures rather than for the UK Parliament We discuss these issues later in this paper

14 Finally some respondents thought that even if there were problems or perceived problems with the Human Rights Act or its adjudication by the courts there were other ways to address these such as improved public education and through amendments to the Human Rights Act or to other existing statutory or regulatory provisions

15 Views were expressed by those who favoured a UK Bill of Rights that the Human Rights Act was negatively perceived that it often resulted in decisions that were unpopular and that a UK Bill of Rights would increase public confidence in the legal protection of their civil rights and liberties against the misuse of public powers

16 Others who favoured a UK Bill of Rights thought that such a Bill would provide an opportunity to distance our fundamental rights from the European label which they have under the European Convention on Human Rights Some believed that such rights should be called fundamental or constitutional rights and could be written in language that better reflected their UK heritage Some thought such rights should be entrenched as part of a written constitution while others thought that it would be sufficient for such a bill of rights to be declaratory

17 Either way it was viewed by many of these respondents that a UK Bill of Rights would have an important symbolic and emotional appeal to the public that they believed that the Human Rights Act has lacked Some also thought that a UK Bill of Rights would provide an opportunity to create or enshrine other constitutional rights and give them the same status as Convention rights

18 As noted above we have reached no decisions on what we might recommend on the issue of a UK Bill of Rights But through this consultation paper we want to provide a further opportunity to hear your views on the issue of whether changes to the existing arrangements are needed and whether a UK Bill of Rights might be desirable in


particular by seeking views on the main arguments that have been put to us opposing or supporting a UK Bill of Rights We would like to reiterate that if you have already addressed these issues in your first reply to us you do not need to reply again However if you would like to elaborate or change your earlier views or if you did not respond to our first discussion paper we would welcome knowing whether you believe that the UK would benefit or not from having a UK Bill of Rights and whether you think there are alternatives to such a proposition Against that background we would welcome your views on the first three questions below The remaining questions ask about the form and content of a Bill of Rights if there were to be one

Q1 What do you think would be the advantages or disadvantages of a UK Bill of Rights Do you think that there are alternatives to either our existing arrangements or to a UK Bill of Rights that would achieve the same benefits If you think that there are disadvantages to a UK Bill of Rights do you think that the benefits outweigh them Whether or not you favour a UK Bill of Rights do you think that the Human Rights Act ought to be retained or repealed

Incorporation of the Convention

19 One of the principal effects of the Human Rights Act 1998 was that it lsquoincorporatedrsquo the rights in the European Convention on Human Rights which the UK had ratified This meant that individuals in the UK could for the first time bring claims in domestic courts for alleged breaches of their Convention rights Prior to the Act coming into force individuals could only seek remedies in the European Court of Human Rights for breaches of their Convention rights2

20 If a UK Bill of Rights were to be adopted some have argued that the UK should return to the position prior to the Human Rights Act whereby individuals would have to petition the Strasbourg Court in order to seek a remedy for a breach of their Convention rights Others argue that since the UK would remain bound by its treaty obligations under the Convention it would be regressive to remove the right of individuals in the UK to seek redress for alleged breaches of their Convention rights directly in UK courts

Q2 In considering the arguments for and against a UK Bill of Rights to what extent do you believe that the European Convention on Human Rights should or should not remain incorporated into our domestic law


Should the Human Rights Act be replaced or might any UK Bill of Rights sit alongside the Human Rights Act

21 A related question is whether a UK Bill of Rights should replace the existing Human Rights Act or sit alongside it Some people believe that the existing Human Rights Act is working well and that a UK Bill of Rights should at most supplement that Act perhaps by adding further rights to it or by adding declaratory provisions which would not be enforceable but could play an important symbolic role Others suggest that the negative perceptions of the Human Rights Act and the European Convention on Human Rights are such that a UK Bill of Rights should replace it

Q3 If there were to be a UK Bill of Rights should it replace or sit alongside the Human Rights Act 1998

How should the rights in any UK Bill of Rights be written

22 At the moment the rights in the Human Rights Act 1998 are written in identical words to those used in the European Convention on Human Rights Many of those we have met have argued that if there were to be a UK Bill of Rights the rights it contained should still be written in these words to avoid confusion and legal uncertainty But others have argued for a UK Bill of Rights to express rights in language that better reflects their UK constitutional heritage andor changes in our society since the original European Convention was drafted in the late 1940s

23 Most other countries that are signatories like the UK to the European Convention on Human Rights but which also have their own fundamental rights in a written constitution or other instrument have written these rights in a way that reflects their own national circumstances and heritage Amongst these are other countries of the common law tradition ie Cyprus Malta and Ireland as well as the UKrsquos overseas territory of Gibraltar

24 Some argue in this context that a UK Bill of Rights could usefully draw upon the more open-textured language of the UN International Covenant on Civil and Political Rights or could specify more closely how the broad principles of the Convention are to operate in a UK context by for example defining more precisely the scope of certain rights or prescribing how certain rights should be balanced against each other (such as the balance between freedom of expression and personal privacy)

25 Some argue also that a further beneficial effect of changing the way in which rights were expressed through a UK Bill of Rights might be that both our own courts and the European Court of Human Rights in Strasbourg would pay greater attention to particular UK circumstances in deciding UK cases coming before them On the other


hand others believe either that a UK Bill of Rights would make little or no difference to the way in which the European Court interpreted and applied the Convention rights or are concerned that differently worded statements of rights could lead in practice to a reduction in the protection currently afforded by our courts or the Strasbourg Court Against that background we would welcome views on the following questions

Q4 Should the rights and freedoms in any UK Bill of Rights be expressed in the same or different language from that currently used in the Human Rights Act and the European Convention on Human Rights If different in what ways should the rights and freedoms be differently expressed

Q5 What advantages or disadvantages do you think there would be if any if the rights and freedoms in any UK Bill of Rights were expressed in different language from that used in the European Convention on Human Rights and the Human Rights Act 1998

Additional rights

26 Our terms of reference require us to investigate the creation of a UK Bill of Rights that incorporates and builds on the UKrsquos obligations under the European Convention on Human Rights as well as seeking to protect and extend our liberties Against that background a number of people have suggested to us that a UK Bill of Rights should contain rights additional to those in the Human Rights Act Others have suggested that the rights set out in that Act already place a considerable practical and financial burden on public authorities and that any additional rights would simply increase that burden

27 Amongst the additional rights that have been proposed by those arguing that a UK Bill of Rights should contain such rights are the following

A Right to Equality

28 Proponents argue that a right to equality before the law is a well-established British constitutional value and legal standard at common law and in equality legislation They argue that its inclusion in a UK Bill of Rights would reinforce the UKrsquos international human rights obligations as well as bringing the UK more closely into line with a large number of other countries which have a constitutional guarantee of equality before the law and equal protection of the law Most proponents of such a right suggest that it should be free-standing and thus build on the limited protection against discrimination that currently exists under the Human Rights Act3 On the other hand others question how such a right might operate in practice alongside existing equality legislation in the UK

29 If there were to be a right to equality there are a number of models of possible wordings They fall into two main groups The first are rights to equal treatment by the


organs of the state Such a right might be similar to the principle of domestic administrative law that similar cases should be treated similarly that is in a sense a right to consistency on the part of the state An example of a right in this general category is article 20 of the EU Charter of Fundamental Rights which states simply that

ldquoEveryone is equal before the lawrdquo

30 The second main category of equality rights are prohibitions on discrimination An example of such a right is Article 21(1) of the EU Charter which states that

ldquoAny discrimination based on any ground such as sex race colour ethnic or social origin genetic features language religion or belief political or any other opinion membership of a national minority property birth disability age or sexual orientation shall be prohibitedrdquo

31 Some texts of such rights prohibit discrimination generally the EU article 21(1) set out above is an example Other texts merely prohibit discrimination by the organs of the state An example is Protocol 12 to the European Convention articles 1 and 2 of which read

ldquo(1) The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex race colour language religion political or other opinion national or social origin association with a national minority property birth or other status

(2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1rdquo

32 Rights expressed in any such terms as the above would seem likely to extend the impact of the Equality Act 2010 in three ways Firstly they would extend its reach beyond the existing list of protected characteristics Secondly they would extend the scope beyond the activities such as the provision of services to which the 2010 Act applies Thirdly they would extend the right to equality without the balancing effect of the express exceptions which the Equality Act contains

33 Such a potentially far-reaching impact may be considered by some to be unsatisfactory States can and do restrict entitlements ndash for example on the grounds of wealth in respect of eligibility for benefits on the grounds of previous convictions in respect of eligibility for jury service and so on Accordingly some might be attracted by a qualified right which is limited by some formula such as ldquohellipsave as is reasonable in an open and democratic societyrdquo

34 We would welcome views on both the principle and possible wording of a right to equality

A Right to Administrative Justice

35 Proponents argue that a right to administrative justice in a UK Bill of Rights could set out or build on a range of common law rights that exist in certain circumstances such


as the right to a hearing or to reasons for certain decisions Most such proponents believe that the current scope of Article 6 of the European Convention on Human Rights referring only to ldquocivil rights and obligationsrdquo provides insufficient protection in respect of such issues They also argue that inclusion of a right to administrative justice in a UK Bill of Rights would give the right the same status that the Convention rights have in domestic law It would enable Parliament to enhance the visibility and value of these fundamental rights and to strengthen public confidence in good administration On the other hand others question whether such a right is necessary given the foundation and standing of existing common law principles of administrative justice that have been developed by our courts for hundreds of years

36 If there were to be a right to administrative justice in any UK Bill of Rights there are a number of ways in which such a right might be expressed At a general level it might simply take the form of a broad statement of a right to decision-making which is lawful rational and procedurally fair Alternatively such a right might be expressed in more detail and include reference to the specific principles of administrative justice derived from the common law

37 Examples of a right to administrative justice can be found in other instruments For example Article 41 of the EU Charter of Fundamental Rights provides for a right to good administration

ldquo1 Every person has the right to have his or her affairs handled impartially fairly and within a reasonable time by the institutions bodies offices and agencies of the Union

2 This right includes

a The right of every person to be heard before any individual measure which would affect him or her adversely is taken

b The right of every person to have access to his or her file while respecting the legitimate interests of confidentiality and of professional business secrecy

c The obligation of the administration to give reasons for its decisionrdquo

38 We would welcome views on both the principle and possible wording of a right to administrative justice

A Right to Trial by Jury

39 Proponents argue that a right to trial by jury in a UK Bill of Rights would ensure that at least in certain defined circumstances an accused person would have a right to be tried by a jury of his or her peers a right which has historically existed in the common law of England and Wales but which they argue has been eroded over the years They would therefore like to see the current right to jury trial reinforced by its inclusion in a Bill of Rights There are however complex questions about the appropriate scope of any such right in the light of the differences across the three legal systems within the UK in respect of the use of jury trials4 Others question whether jury trial


should be treated as a constitutional right given the criticisms sometimes made about its operation For example some feel that trials before a judge with no jury deliver better justice in certain circumstances because the requirement on the judge to give reasons leads to increased transparency Others consider it inappropriate to present complex cases such as those involving serious fraud to a lay jury

40 There are a number of forms that a right to trial by jury in a UK Bill of Rights might take For example Article 11(f) of the Canadian Charter of Rights and Freedoms states that

ldquo11 Any person charged with an offence has the righthellip

(f) except in the case of an offence under military law tried before a military tribunal to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishmentrdquo

41 We would welcome views on both the principle and possible wording of a right to trial by jury in any UK Bill of Rights

Rights in criminal and civil justice

42 Proponents argue that the level of protection for accused persons in Articles 5 to 7 of the European Convention on Human Rights which concern primarily the right to liberty and a fair trial is insufficient They argue that a UK Bill of Rights should spell out more clearly the protections already afforded by the common law such as the right to be free from arbitrary arrest and detention the standard of proof in criminal proceedings the right to lsquoconfrontrsquo onersquos accuser and witnesses and the right of access to a court Some also propose that any person facing a so-called ldquocivil penaltyrdquo or any form of civil award should be entitled to a proper hearing on the substantive merits either at first instance or on appeal Others argue that the fact that these protections already exist in the common law makes it unnecessary to include them in any UK Bill of Rights

43 We would welcome views on whether in principle any UK Bill of Rights should contain rights of this kind for accused persons

Rights for victims

44 It is also often suggested in the context of a Bill of Rights that there should be recognition of or specific provision for the rights of victims of crime

45 Proponents suggest that such recognition or provision would help ensure that the focus of rights is not just as some perceive on those accused of crimes but also on those who have suffered harm as a result of crime A Bill of Rights might also serve as a guarantee to victims of being treated with respect fairness and dignity

46 A Bill of Rights could give enforceable or declaratory expression to the protections currently afforded to victims by for example


- highlighting the statersquos positive obligations to protect individualsrsquo right to life under the Convention

- highlighting the protection afforded by the criminal law ie the fact that the state provides protection to victims or potential victims by criminalising certain conduct and prosecuting and punishing offenders

- highlighting or augmenting existing rights to a remedy such as the protections afforded where negligence has caused injury andor

- setting out procedural rights such as the Victimrsquos Personal Statement which gives victims a voice in their case before sentencing

47 Others believe however that there is already an adequate level of protection and clear voice for victims in the criminal justice system and that no additional provision is necessary

48 We would welcome views on whether in principle any UK Bill of Rights should contain rights of this kind for victims

Socio-economic rights

49 Proponents argue that neither the European Convention on Human Rights nor the Human Rights Act provide adequate protection for a category of rights known as economic social and cultural rights Such rights which are found in a number of bills of rights in other countries can include rights to adequate healthcare and housing a right to education a right to a minimum standard of living and a range of other social security entitlements For example article 27 of the Constitution of the Republic of South Africa 1996 provides that

ldquo1 Everyone has the right to have access to

ahealth care services including reproductive health care

bsufficient food and water and

csocial security including if they are unable to support themselves and their dependants appropriate social assistance

2 The state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of each of these rights

3 No one may be refused emergency medical treatmentrdquo

50 Others question whether rights of this kind are appropriate for adjudication by courts since they necessarily deal with fundamental questions of public resources and policy which they argue are more properly the responsibility of elected legislators who are democratically accountable rather than of judges who are not Some suggest for this reason that if there were to be any recognition of such rights in a UK Bill of Rights the provisions should be declaratory or aspirational only rather than enforceable by courts

es | 61 A UK Bill of Rights The Choice Before Us Volume 2 Annex

51 We would welcome views on whether socio-economic rights should be included in a UK Bill of Rights and if so what they should be and whether they should be enforceable

Childrenrsquos rights

52 Proponents argue that neither the European Convention on Human Rights nor the Human Rights Act provide adequate protection for childrenrsquos rights They point out that the UK is bound under the United Nations Convention on the Rights of the Child to provide certain childrenrsquos rights yet these have generally not been incorporated into domestic law or at least not in one consolidated instrument They see a UK Bill of Rights as an opportunity to set out and consolidate childrenrsquos rights into one binding and enforceable domestic instrument Others however believe that childrenrsquos rights are already adequately protected or could be further protected in the UK through ordinary legislation and that the inclusion of certain of these rights in a UK Bill of Rights rather than in specific legislation might raise complex enforcement questions given that they relate to issues such as standards of living and services which many views as policy questions for elected legislators rather than for the unelected judiciary

53 Again there are a number of different ways in which such rights could appear in a UK Bill of Rights At one end of the spectrum a Bill might set out most or all of the rights in the UN Convention but this is a long document running to 54 articles At the other end of the spectrum a Bill might follow Article 24 of the EU Charter which states that

ldquo1 Children shall have the right to such protection and care as is necessary for their well-being They may express their views freely Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity

2 In all actions relating to children whether taken by public authorities or private institutions the childs best interests must be a primary consideration

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents unless that is contrary to his or her interestsrdquo

54 We would welcome views on the principle and possible wording of childrenrsquos rights in any UK Bill of Rights

Environmental rights

55 Proponents argue that any UK Bill of Rights ought to contain environmental rights They argue that the increasing awareness of the risks associated with an unsustainable environment and the importance of environmental protection support the inclusion of such rights They point to the many links between the protection of human rights and the protection of the environment in international treaties and to the fact that a number of countries including South Africa have afforded constitutional protection to environmental rights


56 Others however consider the range of existing statutory measures in respect of environmental protection to be sufficient They question as with socio-economic rights more generally how such rights would be enforced given that issues of environmental protection involve policy and resource questions about the allocation of resources and political judgements that many consider should be for elected legislators and not for courts to decide

57 There are a number of ways in which environmental rights could feature in a UK Bill of Rights One possible precedent is Article 24 of the Constitution of the Republic of South Africa 1996 which provides that

ldquoEveryone has the right

a to an environment that is not harmful to their health or well-being and

b to have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that

(i) prevent pollution and ecological degradation

(ii) promote conservation and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social developmentrdquo

58 We would welcome views on the principle and possible wording of environmental rights in any UK Bill of Rights

59 Against the background set out in the previous paragraphs we would welcome views on the following questions

Q6 Do you think any UK Bill of Rights should include additional rights and if so which Do you have views on the possible wording of such additional rights as you believe should be included in any UK Bill of Rights

Q7 What in your view would be the advantages disadvantages or challenges of the inclusion of such additional rights

Balancing certain rights

60 Any UK Bill of Rights could also seek to guide the courts on how they should strike the balance between qualified and competing Convention rights and freedoms which are sometimes held to be in opposition to one another the most frequently cited example being the right to personal privacy under article 8 of the Convention and the right to freedom of expression under article 10 For example when private information or defamatory allegations about an individual are published in the media the courts are required to strike a fair balance between them Section 12 of the Human Rights


Act provides some guidance to the courts on how to proceed in such circumstances5

However some believe that a UK Bill of Rights would enable Parliament to give clearer guidance to the courts on this issue than is currently given by either the Human Rights Act or by the European Court of Human Rights Against that background we would welcome views on the following question

Q8 Should any UK Bill of Rights seek to give guidance to our courts on the balance to be struck between qualified and competing Convention rights If so in what way

Definition of lsquopublic authorityrsquo

61 Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities in the UK to act in a manner that would breach a personrsquos Convention rights A UK Bill of Rights might place an identical or similar duty on public authorities in respect of the rights set out in that instrument There might be scope however for a UK Bill of Rights to contain different or clearer provision on what types of bodies are covered by such a requirement

62 Under the Human Rights Act 1998 the term lsquopublic authorityrsquo includes Government departments local authorities statutory bodies and courts as well as some private bodies which exercise lsquopublic functionsrsquo on behalf of the state (such as those companies who run private prisons) It is ultimately up to the courts to decide whether any particular body falls within this category Following a House of Lords decision 6

that excluded from the scope of this duty private companies that provided residential care under contracts with a local authority the Government brought forward legislation that clarified the scope of the Act in respect of certain care services7

Despite this move many feel that there needs to be greater certainty on the range of bodies covered by such a duty particularly as more public services are outsourced to private bodies Others question such a need and argue that the existing scope is sufficiently flexible Against that background we would welcome views on the following question

Q9 Presuming any UK Bill of Rights contained a duty on public authorities similar to that in section 6 of the Human Rights Act 1998 is there a need to amend the definition of lsquopublic authorityrsquo If so how


Responsibilities

63 It has been suggested by some including a number of faith groups that there should be inclusion of or at least reference to the notion of responsibilities in any UK Bill of Rights and that its focus should not just be about rights Those arguing for this position note that concepts of duty and responsibility figure in many aspects of our lives such as our duty to obey the law and our responsibilities to our children They also note that notions of responsibilities figure in current and historic bills of rights in some other countries though these are generally in the form of aspirational or declaratory provisions They argue that at least for certain rights the extent of the protection or compensation they provide should be determined at least in part by the actions of the individual seeking the protection of the right

64 Others point out however that most rights under the Convention and the Human Rights Act involve a concomitant responsibility to respect the rights of others They note that there are very few absolute rights and even the right to life allows for self defence in appropriate circumstances or the sacrifice of life to preserve another in certain circumstances They assert that rights are necessarily interconnected and require a daily balancing in many aspects of our lives For example a personrsquos right to religious observance must include the same right for others even if their beliefs are anathema And a personrsquos right to free speech must allow for anotherrsquos right as a black or a gay person for example to live in safety Further they ask which duties should be created or included and whether and how they would be made enforceable For example in the case of parental responsibilities there already exists in law a duty of care on the shoulders of parents with regard to their children but arguably this duty could be too amorphous for a Bill of Rights Similar questions could be posed regarding a duty to vote a duty to protect the environment for future generations or a duty to protect the most vulnerable in our society Or in the case of duties to obey the law or pay taxes one could argue that these are already taken as read

65 Some who raise the issue of responsibilities wish to see human rights made contingent upon good behaviour and feel for example that those who commit crimes should have their bad conduct weighed in the balance against their human rights Others however argue strongly against any concept of responsibilities that would qualify or link the scope of an individualrsquos human rights to his or her conduct or demonstration of responsibilities They believe that one of the foundations of fundamental rights is that they are for all individuals including those who are suspected of committing or who have committed crimes They believe that it is in the nature of human rights that they exist for all human beings without reference to whether they are lsquodeservingrsquo or not and cannot be made contingent They argue that a Bill of Rights is intended to protect the individual against the misuse of public powers and not to impose legal liability upon the individual in addition to the duties imposed by criminal and civil law To the extent that rights are qualified and require a fair balance they argue that the Convention and the Human Rights Act correctly focus upon the rights of others and the wider public interest and that Article 17 of the


European Convention on Human Rights excludes protection for conduct aimed at the destruction of Convention rights

66 A possible way of reconciling the desire to include some acknowledgement of the importance of responsibilities with the principle that some rights are absolute might be to emphasise the existing common law principle that public law remedies are discretionary This is the current practice in judicial review Arguably therefore courts could be encouraged when exercising this discretion to take into account the extent to which an applicant has complied with their responsibilities

67 Recognising the strength of these arguments some have argued that responsibilities should figure in a declaratory way in any UK Bill of Rights ie that they would not be enforceable serving to remind all members of society that they owe certain duties and have certain responsibilities

68 Responsibilities might be included in any Bill of Rights in a variety of ways for each of which a parallel can be found in the Constitutions or Charters of Rights of other democratic countries

(a) one or more responsibilities or obligations might be stated as selfshystanding obligations or societal values such as a duty to society a duty to uphold democratic values or a duty to respect the rights of others

(b) some self-standing obligations might have legal effect such as an obligation on citizens to perform military or community service when called upon to do so or an obligation to vote in elections

(c) the enjoyment of certain rights might be made conditional upon their not being abused For example enjoyment of the right to freedom of expression could be conditional upon that right not being abused to attack the free democratic order or

(d) without being conditional in that sense rights might be made subject to such exceptions as are necessary in a democratic society or protection of the rights and freedoms of others (see the formulation already in Articles 8 9 10 and 11 of the European Convention on Human Rights)

69 Against that background we would welcome views on the following question

Q10 Should there be a role for responsibilities in any UK Bill of Rights If so in which of the ways set out above might it be included


The duty to take Strasbourg case law into account

70 One other provision of the Human Rights Act which has been the subject of recent public discussion is section 2 of the Act which requires our courts to ldquotake into accountrdquo relevant judgments of the European Court of Human Rights when deciding cases involving Convention rights Some commentators have expressed concern that this duty has been interpreted by the courts in a way that has caused them to apply Strasbourg case law too rigidly without sufficient consideration of our legal system Other commentators have said that even if this was the case in the past our senior domestic courts are increasingly departing from Strasbourg case law where they consider this to be justified and appropriate

71 It has been suggested by some in this context that any UK Bill of Rights could amend the duty in section 2 of the Human Rights Act 1998 to provide different andor clearer direction to UK courts as to how to interpret and apply Strasbourg case law For example some commentators have suggested an amendment to the effect that our domestic courts ldquomayrdquo take into account Strasbourg case law but should not do so if there is a clear expression of views by Parliament on the relevant issue (whether by statute or otherwise) or where the existing common law is clear

72 Others have suggested that the section 2 duty should be expanded to direct courts to take into account also relevant case law from other countries in particular from other common law countries Proponents of this suggestion assert that this would mean that the common law as it has developed not just in the UK but elsewhere would be given a more substantial and rightful place in the adjudication of domestic cases Others however consider that such a change would be unnecessary as our courts (like the European Court of Human Rights) already have regard to case law from other international human rights courts and national courts Against this background we would welcome views on the following question

Q11 Should the duty on courts to take relevant Strasbourg case law lsquointo accountrsquo be maintained or modified If modified how and with what aim

Declaration of incompatibility

73 Under the Human Rights Act if a court determines that a statute of the United Kingdom Parliament cannot be read and given effect in a way that is compatible with a Convention right the court can issue a lsquodeclaration of incompatibilityrsquo Notwithstanding such a declaration however the legislation remains valid and in force and it is up to Parliament to decide whether and if so how the incompatibility should be addressed Unlike the position under the European Communities Acts and in many other European and Commonwealth countries the courts cannot declare the statutes


of the UK Parliament invalid and unenforceable The Human Rights Act therefore leaves it ultimately to Parliament to decide whether to amend the law in question

74 In the view of many commentators the Human Rights Act in this way strikes a sensible balance between on the one hand the ultimate sovereignty of the UK Parliament which is democratically accountable and represents the people and on the other hand the power and duty of the courts to declare and enforce the law and to provide effective remedies in accordance with the will of Parliament

75 Some however have argued that this balance should be altered by giving courts the power to declare provisions of UK statutes invalid and unenforceable where it is found that they cannot be read compatibly with Convention rights Others argue that the present position should be retained Still others argue that the balance struck by the Human Right Act is not the critical issue because if Government and Parliament choose to do nothing following a declaration of incompatibility individuals can still seek redress from the European Court of Human Rights for breach of their rights If the Court agrees the Government and Parliament are then bound by Article 46 of the Convention to comply with the Courtrsquos judgment

76 To those who regard the Convention system as a threat to the British doctrine of Parliamentary sovereignty or supremacy this is not satisfactory They criticise the fact that Parliamentary sovereignty is in their view undermined by the mechanism of a declaration of incompatibility since Parliament is effectively bound by the judgments of the Strasbourg Court Others counter that this is in the nature of the UKrsquos obligations under the many international treaties which it has ratified in numerous areas of policy-making and that the UK made the decisions in ratifying these treaties that it wished to comply with the obligations found in them Against this background we would welcome views on the following question

Q12 Should any UK Bill of Rights seek to change the balance currently set out under the Human Rights Act between the courts and Parliament

Northern Ireland Scotland and Wales

77 It is clear from the responses to our earlier discussion paper and our visits to Northern Ireland Scotland and Wales that there are a range of views in different parts of the UK on whether and the extent to which a UK Bill of Rights might be desirable andor possible in the light of the devolution settlements and the current political landscape in Northern Ireland Scotland and Wales

78 Many in Northern Ireland Scotland and Wales have in particular questioned the viability and legitimacy of a UK Government-led initiative to enact a UK Bill of Rights particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland in parallel to the current debate on Scotlandrsquos constitutional future and in the


wake of the recent increase in devolved powers in Wales Many respondents in all three countries argued that a UK Bill of Rights is not a live issue on the public agenda except as a matter of English politics These views were not however universally held with some in different parts of the UK including individuals elected representatives and some non-Governmental organisations saying either that a UK Bill of Rights was necessary or desirable or that it could have potential benefits depending on its content

79 Some respondents have questioned whether and how any UK Bill of Rights would affect the devolution settlements in Northern Ireland Scotland and Wales whether amendments to these settlements would be necessary and whether the consent of the devolved legislatures would be required to the introduction of a UK Bill of Rights While some saw these issues arising as a consequence of any attempt to introduce a UK Bill of Rights others suggested that this would depend on the form and content of such a Bill

80 One possible model for a UK Bill of Rights in this context is a Bill that might sit alongside the existing Human Rights Act and contain substantially similar provisions and rights to those currently found in Schedule 1 to the Act Under this model these rights might apply UK wide but be exercisable in respect of reserved matters only Such an instrument might also include a separate chapter containing rights that applied only to England as well as a statement that acknowledged the competence of the Northern Ireland Assembly the Scottish Parliament and the National Assembly for Wales to enact legislation conferring additional rights to meet the particular needs of those countries Any additional rights passed by the devolved legislatures would by virtue of the existing devolution statutes relate to devolved matters only In the view of some such a model might simply reflect what already happens in practice in respect of rights protection under the devolution statutes8

81 Another possible model might be a UK Bill of Rights that contained additional rights in respect of Northern Ireland Scotland and Wales but which would not enter into force in respect of those countries without the consent of the respective devolved legislature

82 Against that background we would welcome views on the following questions and proposals

Q13 To what extent should current constitutional and political circumstances in Northern Ireland Scotland Wales andor the UK as a whole be a factor in deciding whether (i) to maintain existing arrangements on the protection of human rights in the UK or (ii) to introduce a UK Bill of Rights in some form

Q14 What are your views on the possible models outlined in paragraphs 80-81 above for a UK Bill of Rights


Q15 Do you have any other views on whether and if so how any UK Bill of Rights should be formulated to take account of the position in Northern Ireland Scotland or Wales

Other issues

83 As set out in the introduction to this consultation paper the questions which it contains do not repeat all of the questions which were posed in the Commissionrsquos earlier discussion paper Nor does this consultation paper cover issues related to the role and operation of the European Court of Human Rights on which the Commission has already provided advice to the Government and the related issue of the effects of international treaty obligations on Parliamentary sovereignty an issue which was discussed in some detail at one of the Commissionrsquos seminars (see httpwwwjusticegovukaboutcbr)

84 Nevertheless the Commission does not wish in any way to discourage respondents from giving us their views You are welcome therefore to give us views on these issues or any others which you believe to be relevant to our Terms of Reference


We look forward to hearing your views on the questions posed in this consultation paper or any other issues that you believe relevant to our Terms of Reference We would like to receive your views by 30 September 2012 Unless you specifically request otherwise all responses will be made public

All responses should be sent to the inbox or address below



Alternative formats


Commission on a Bill of Rights Postpoint 955 102 Petty France


London SW1H 9AJ

Confidentiality



Members of the Commission are data controllers within the meaning of the Data Protection Act 1998 Any personal data provided will be held and processed by the Commission and its Secretariat only for the purposes of the Commissionrsquos work and in accordance with the Data Protection Act 1998 Once the Commission has completed its work then any personal data held is likely to be passed to the Government for the purpose of public record-keeping


List of Questions in this Consultation Paper


















Endnotes 1

The Members of the Commission are Sir Leigh Lewis KCB (Chair) Professor Sir David Edward QC Lord Faulks QC Jonathan Fisher QC Martin Howe QC Baroness Kennedy of The Shaws QC Lord Lester of Herne Hill QC Philippe Sands QC and Anthony Speaight QC The Commissionrsquos Terms of Reference are

ldquoto 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

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

To provide advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of and following the UKrsquos Chairmanship of the Council of Europe

To consult including with the public judiciary and devolved administrations and legislatures and aim to report no later than by the end of 2012rdquo

2 They could also raise Convention rights and case law in domestic cases and these were sometimes cited by courts in their decisions but there was no ability to bring a direct claim and seek a remedy in a domestic court

3 The Human Rights Act 1998 prohibits discrimination as set out in Article 14 of the Convention ie it only prohibits discrimination in the securing of the other rights and freedoms set out in the Convention The UN International Covenant on Civil and Political Rights by contrast contains a free-standing right to equality but it has not been incorporated into UK law Protocol 12 to the European Convention on Human Rights also contains a free-standing right to equality but this right but has not been ratified by the UK and is not contained in the Human Rights Act However the Equalities Act 2010 contains detailed and specific protection for many forms of direct and indirect discrimination

4 There are a number of differences in the right to a trial by jury across England and Wales Northern Ireland and Scotland For example Scotland has a different system than England and Wales for determining whether an accused will be tried before a jury Northern Ireland also has a particular statutory system which includes since the abolition of lsquoDiplockrsquo courts provisions excluding trial by jury in certain cases involving proscribed organisations (Justice and Security (NI) Act 2007) Further in England and Wales section 44 of the Criminal Justice Act 2003 excludes the right to jury trial in certain cases of risk of jury tampering

5 Section 12 of the Human Rights Act directs courts to ldquohave particular regard tordquo the importance of the Convention right to freedom of expression and in cases involving journalistic literary or artistic material to have particular regard to the extent to which the material has or is about to become public and the public interest in the material being published as well as any relevant privacy codes

6 YL v Birmingham City Council and others [2007] UKHL 27

7 Section 145 of the Health and Social Care Act 1998

8 For example the Scottish Parliament enacted the Scottish Commission for Human Rights Act 2006 and the National Assembly for Wales passed the Rights of Children and Young Persons (Wales) Measure 2011



Annex F

List of Respondents to the Commissionrsquos Discussion and

Consultation Papers


List of respondents to the Commissionrsquos Consultation Paper A Second Consultation

Respondent organisations and bodies

Responses from groups of organisations Christian Concern and The Christian Legal

Centre National Union of Students and Union of

Students in Ireland

Responses from single organisations andbodies

Action in Hearing Loss Administrative Justice and Tribunal Council Age UK AIRE Centre All Party Parliamentary Group on Gypsies and

Travellers Amnesty International UK Analytic Art Limited Bar Council British Academy British Association of Social Workers British Institute of Human Rights (BIHR) British Irish Rights Watch Care Quality Commission Children in Scotland Childrenrsquos Commissioner Childrenrsquos Food Trust Childrenrsquos Law Centre Childrenrsquos Right Alliance for England Citizenrsquos Advice Bureau Civil Court Users Association Committee on Administration of Justice Community Law Partnership Community Organisations of South Tyrone

and Area Ltd Darbari Trust UK The Discrimination Law Association Diverse Cymru Employment Law Association End Violence Against Women Equality and Diversity Forum Equality and Human Rights Commission Faculty of Advocates Family Law Society Garden Court Chambers

Gender Identity Research and Education Haldane Society of Socialist Lawyers The Hodge Jones and Allen LLP Howard League for Penal Reform Human Rights Consortium Imkaan Immigration Law Practitionersrsquo Association Include Youth Irish Congress of Trade Union ndash Northern

Ireland Committee Irish Travellers Movement in Britain Jigsaw JUSTICE Law Society of Scotland The Legal Committee of the District Bench

(Magistratesrsquo Courts) Liberty Macmillan Cancer Support Menter Mind Minister of Justice for Northern Ireland David

Ford MLA National Aids Trust National Federation of the Gypsy Liaison

Groups The National LGBampT Partnership No Recourse to Public Funds Network Northern Ireland Council for Ethnic Minorities Northern Ireland Council for Integrated

Education Northern Ireland Human Rights Commission Northern Ireland Public Service Alliance NSPCC Older Peoplersquos Commissioner for Wales Parliament for Wales Campaign Parliamentary and Health Service

Ombudsman Pembrokeshire Peoplersquos First PHG Foundation Pobal Reneacute Cassin Residential Landlord Association Rights of the Child UK (ROCK) Royal College of General Practitioners


Royal National Institute of Blind People SAMH Save the Children Scope Scottish Court Service Scottish Government - Roseanna Cunningham

MSP Minister for Community Safety and Legal Affairs Scottish Human Rights Commission Senators of the College of Justice Sheffield Law Centre Sinn Feacutein Slough Refugee Support Society of Editors Sussex University ndash Centre for

Responsibilities Rights and Law Thompson Solicitors Training for Women Network Ltd UK Association of Gypsy Women UK Independence Party (UKIP)

UK Peoplersquos Health Movement Ulster Human Rights Watch UNICEF UK UNISON Unite Trade Union University of Cambridge ndash Centre for Public

Law University of Derby School of Law and

Criminology and Amnesty International University of East London ndash Human Rights

Law Model Team Wales Observatory on Human Rights for

Children and Young People Wessex Regionalist Party Welsh Government Wild Law UK Wish Womenrsquos Resource Centre WWF-UK

List of Individual Respondents

Responses from more than one person Klug Professor Francesca and Williams Amy

Ruth Edwards Rev Aled and Lewis QC Clive Faris Neil Garrett Brian and McAteer

Ciaran Wood KCMG Sir Michael and Wilmshurst

CMG Elizabeth Morris David and Kathleen Radlett Susan and David

Responses from individuals Anderson Andrew Anonymous 1 Anonymous 2 Anonymous 3 Anonymous 4 Anonymous 5 Baister Dr Stephen Baker Dr Dennis Baynes Tim Beesley CDR Derek Beirne Maggie Dove Nicholas R

Bindman QC Sir Geoffrey Birkby Jane Bishop Ronald Barry Bobbin Rita Boult Ben Broadhurst Robert Broadhurst Stephen Bunting Dan Burdett David Bush Malcolm Cantwell Rosemary Carver David Chandler Karen Coleman Tony Cranmer Frank Crawford Michael H Curtis G Davis David De Londras Professor Fiona De Rivaz Richard Dent Simon Devaney MJ Doczi Nic


Duff MEP Andrew Dunsmore David L Elphicke MP Charlie Farry Richard Fell D Fletcher Peter Garbutt Andrew Gaur Navodaya Gibbs Roger Griffin Lee Gwynne Stephen Halford John Hargreaves Peter Hart Jean Healy-Birt Eleanor Hemming MP John Hockman QC Stephen Hodge Canon Michael Hudson John R Isherwood Kate Johnson Paul Jones Jonathan Jones Mike Jull Peter King Dr Jeff Kirk Ian Kissane John Kitching Brian Lasenby Sarah Last Lisa Lewis Jack Lewis Jonathan M (Immigration Judge) Lewis Professor CG

Lindsay Tony Manning Paul Marsons Lee Marthews Gregory McKenzie Neil Mead Professor David Montgomery Sylvie Morgan Dr Austen Nash Paul Nock Robert Norris Michael Palmer Anne Parker Alan Parkhouse Richard Peterson Judy Poulton Rex Riches Brian Robinson Anthony Ruckman Neil Sarah Scarborough AN Sears John B Shaw Mike Silver Mervyn Silvester Fred Smith Ernest Stuttaford Maria Taylor John Van Bueren Professor Geraldine Walinets Stanley Wall Alec Wheeler Andy Whitaker Baroness Janet Yates Pol

List of individuals who responded as part of a postcard campaign organised by the British Institute of Human Rights

Abel Simone Adelson Naomi Afifi Adam Agustian Hendra Ahmed Tawhida Akehurst Susanna Andersen Hilde

Aldridge Kristi Aleya H Allan Robert Ambler Kris Amica Christine Amjad Maryam


Ariss Amanda Blundell Peter Armsbury Julia Bond Sam Arrigoni Brain Boora Sukhcharn Ashcroft Richard Both Craig Ashley Annette Botibol David Ashraf Sofia Boulton Simon Astbury Brian Bourne Jennifer Avery-Scott Coral Bowles Penelope Ayech Vicky Boyle Colin Ayling Cliff Brace Chris Bahr Charlotte Brady Jenna Bailey Alex Briggs Eleanor Baldwin Ceri Bristow James Bardaran Pouya Brokenshire Tarin Barker Diane Broome Kelly Barnard Paul Browing John Barnes Joseph Brown Gill -Traveller Law Reform Project Barnett Lexi Bruton Lisa Barr Graham Bryant Susan Barry HJ Buchanan Billy Barry Haggas Bunting A Barstow Nik Burnham Joanne Barton Sasha Burton-Bowen Lucy Barton Shireen Talhouni Bury Paul Bascon Susi Butler Frances Bateman Christine Butterworth Jonathan Beard Robert Byfield M Beausire Ted Cabanas Vanda Beers Tom Cade Jasmine Befu Campbell-Cairns Angie Begum Shaben Capel Sarah Bell David Cardy Glyn Bell Louise Caro Sue Bell Wendy Carson Calvin Bellamy Karen Carter Luke Benjamin Elizabeth Carter Oliver Bennett James Catro Ana Bennetts Alan Chandar-Nair Raskesh Bentley Radhe Chandler Karen Bevan Scott Chant Holly Billimoria Soraya Chapman Carol Bindman Geoffrey Cheah Jeanette Black Holly Chesshire Lisette Blagbrough Charlie Chihana Tchiyiwe Bligh Katharine Chrisie Coleen Church Ali Christie Gordon A


Clarke Diana Clarke Ross Clarke Stephen Clayton Hannah Clissett Patsy Cochrane Afton Cole Stephanie Collins Aidan Collins Kara Collins Michael Cooke Frazer Cooper Hilary Copson Julia Corcoran Amy Corcoran Erin Sutherland Cornejo Jonathan Cotgrave James Course Hilary Courtois Elizabeth Cowan Alan Cowell Frederick Cowell Victoria Cowland Janet Coxhead Malcolm Crawford Abby Crowther Neil Cummins Ashley Da Silva Luis Dangerfield Alison Dania Khair Daniel Nick Davies David Davies Jason Davies Michelle Davison M Dawkins Alistair Daycock Catherine Debra De Paula Dos Santos Vicente Deacon Hannah Delord Bernie Devaney Sarah Devilly Anthony Devlin Nicholas Dew Chris Gage Charlotte

Dindjer Hsan Doggett Anthony Doonan Mary Doran Patty Doyle Alexandra Duckworth Stuart Duff Prof Mac Duffin Nicholas Duffin Sally Duffy Cubob Dunford Victoria Dyer Liz Eaglesham David Earnshaw Ryan Edwards Philip Egan Blaise F Egerton Bridget Elliott Dr Mark Elliott Leanne Elliott Mary-Lou Elliott Ula Ellis Brenda Ellis Karen Elwood Ann Emmanuel Sunday Taiwo Emmett Sarah Ettles James Evans Pamela Farrell-Deveau Mike Fearn Melvyn Feminist Revolution Network Fench Paul Fenton Wilma Ferguson Dugald Ferguson Sheila Ferreira Solange Finnegan Gemma Fitchie Sharon Flary Reid Forrest Stephen Foulger Steve Franklin Kaliya Fraser Joanne French Miranda Frisby Andy Fox Zoe


Gale Rhianon Gale Sian Garcia Aaron Gardner Carl Garner Stephanie Gashi Mimoza Gault Katherine Gavin Michelle Gentle Emma Gibbons Aisha Gibbons Catherine Gillespie Robert Girvin-Baker Jennifer Glenister Justin Glover Tiffany Goa Fabien Gordon Jane Gordon Deuchars Gough Wendy Graham Smith Graham Wood Camilla Green Alexander Greenwood Anne Gregg Andy Gretton Cosima Griffin Nicholas Griffins Kerry Grimes Dee Grubeck Nikoluaus Guerrero-Avila Juan C Gundersrud Hanne Gupta Kapil Haggas Stuart Hall Natalie Hammond John Hampton Joe Hand Meraud Ferguson Hargrove Paul Harle Catherine Harley Lowenna Harley Michael Harris Elizabeth Harris Marie Harrison Rae Harty Lowenna Jorgensen Katrine

Hayes Kate Haywood-Grinnell Simon Hazelgrove Jack Head Karen Heath Pauline Higson Coral Hill Gary Hill Jackie Hill Katherine Hinksman Lucy Holley Catherine Holt Anne Hosali Sanchita Hosking Philip R Hotchen Rebecca Howe Courtenay Howes Laurie Howes Sophie Huggas Guelma Hughes Jonathan Hunt Matthew Hurley Marie Hurley Marcus Hutchings Danielle Hutton Emma Hyde Adrian Hyde Cern Irwin Anne-Marie Jack Deborah Jack Steve Jackson Daniel James Lisa Jefferson Alice Jeffrey Emily Jenkins Marge Jessop Robert Jolly Schona Jones Claire Jones Dennis Jones Franstine Jones Geraint Jones Heather Jones Huw D Jones Katie Jordan Christopher Brian Jordan Gail


Kashiko Alex Kaye Andrew Kazantzis Miranda Kearon Julie Kemmy Julie Kench Jan Kenningham Sarah Keogh Chris Keogh Hannah Khalid Ali Khalil Haleem Khan Shoaib M Kidner Chris King Jennifer King Joan Kirk Barbara Kirk Elinor Kirkpartrick Catriona Kirkpatrick Stewart Kirton-Darling Edward Kloythanomsup Jeff Knight Eric Koppel Dr Hano Korel Melek Korula AR Koszerek Pippa Kurowski Katrina L Laidlaw Jaana Lal Gogna Jagdish Lambert Tom Lane Polly Lang Celia Lang Graham Langdon Mark Langhorn Louise Langhorn Stuart Lapins Sacha Larby Tasmin Larminie Elizabeth Lawson-Frost Sasha Leicester Alistair Lennon-Wood Jenny Lev Joseph Levin Jacquie McCarthy Nicola

Lewis Sian Lewis Alan Lewis Emma Lewis Gemma Lieberman Nicole Lindsay Steven Linton Suzannah Lisa Llewellyn Mike Lombardi Andy Long Rev Dr PR Long Suzanne Longworth Jackie Lopes Solange Loveday Lovell Jacqui Lumsdaine David Lumsdaine Naomi Lux Lyon Kath Lyons Donal MacDonald Tim Macehiter Neil Macintyre Jess MacKinnon Carla Macleod Colin Malcolm Nicole Maloney Ted Manasse Andrew Mann Sarah Manton Richard Mardell Jason Marshall Dr Jill Martinez Pedro Mason Chris Mather Tom Matthews A Matthews Lynn and Maisha Maunder-Ruck Helen Max Maxwell-Cox Kyle May Claire Mayer Henry Mayer Luiz Hemrique McAdam Andrew McCaig Chris


McConnell Martin Sean McDermott Yvonne McGhie Fiona McGlone Ann McGuire Gerry McKenna Linda McKeown Christiane McKeown Peter McLaughlin Sian McMaster Charis McMaster Nalini McSherry Sarah Mercedes Mercer Jonathan Mercier Guillaume Meredith Nathan Merriman Andrew Merriman Daniel Mihangel Anna MilIett Vince Millard Becca Miller Alison Miller Laura Mills Claudia Mills Stuart Milne QC Alexander Milner James Mish Loraine Mitchell Elizabeth E Mitchell Phillip Molloy Fionna Moloney Darren Monestier Carterina Mooney Adam Mooney Stephanie Morgan Christine Morgan Karen Morris Jackie Mottram Robert Mushtaq Farhan Nekati Phathekile Newby Leanne Newton Kate Marie Nicholas Leila Nichols Tim Plajerova Eva

Nicol Jillian Nicol Senga Niyoti H Norton Eric Norton Steve Nunn Sandra Nurley Marcus Nuruzzaman Mohammed Nyatsanza Kudakwashe OrsquoConnor Jude OrsquoDonnell Anne OrsquoDonovan Jane OrsquoNeill Christopher OrsquoReilly Kevin Oakes Eamonn Ofek Yonatan Olaiya Ade Orieso Chanel Ostrowski Nicholas Owen Trevor Paines Rupert Panas Charlotte Papworth Charlotte Parker Laura Parker Lochlinn Parker Rosalyn Pasha Maryam Pate Deborah Patel Shereen Patrick John Paule Pavan Payne H R Pearson Dr Mark Peecock Simon Pellett David Perez Moises Pestana Perry Paul Pershad Pratima Peter Outlaw Peter Sunday Petford John Peto Harry Pettigrew Judith Pierrot Eirwen Pike Dr Lindsey


Poltock Alison Presson Kitt Priaulx Michael Priesley Bill Qwarnstrom Andrea Radcliffe Sarah Raeburn Mark Ramanan Abi Ramsden Laura Redman Sarah Redmond Christine Reece Michelle Reid Bertrar Rendell Dr Margherita Rendell Stephen Richards Brian Richards Steven Richardson Lisa Ridley Simon Roberts Caroline Roberts Jo Roberts Nia Roberts Stephen Robinson Sam Rodger Alan Rodgers Lesley Roe Lynn Rogers Harry Rothschild Sylvia Rook Alex Rooke Kezia Rosser Gareth Rotcaig Celine RT Rugg Chris Ruscoe Tim Ryan Bestford Sabiri Adil Siddiq Saiz Ignacio Samphire Stephanie Sarai Mrs Sarhandi Sarah Saridar Tahani Schinas Ceasar Thacker Rajeev

Schmidt Evelyne Scouller Charlie Scriven Jane Senu Oluwafemi Sergeant Robin Series Lucy Shah Deepa Sharp Anna Shearer Kirsten Shew Michael and Francesca Simblet Stephen Simmons Rob Simpson David Singh Sarah Louise Skinner Lee Smith Andy Smith Calvin Smith Mark Smith Sally Snow Tracey Sonvico Gianni Sosseh Christina Speight H Speyer Elaine Spira Louise Stables Paul Stephen Stephens Daniel Stevens JJ Stevenson Claire Stewart Alasdair Stinson Hanne Stonebanks Lauren Stratton Tony Sturtivant Ed Sulu Omotolani Sun Mark Susan Keyes Sutherland Sara Talbot Marc Tandy Jason Tarrant Megan Tarvit Jenny Tate Rhiannon Taylor S Ten Veen Rianne C


Thomas Alan Thomas Lorraine Thomas Sarah Thompson Alice Thwaite Anna Tilan Sheila Tipple Hannah Todd Claire Tomlinson Eleanor Tomlinson Jane Tomlinson Sue Toonen Don Trivier Elisabeth Tyson Clare Underwood Kay Vasista Veena Vaughan Dan Veale Chris Vujasin Jane Wales Dean Walker Elizabeth Walker Mhairi Wall Michelle Wallwork Ryan Walters Dawn Wand Daniel Warburton Karen Ward G Warne Adam Warner Ian Warner Jan Watson Martin

Watts Anne Watts Kevin Weber Rosa Wells Mrs West Maggie West Steve Weston James Wetherall Michael Whiteley Kit Whitwell Chris Wildbore Helen Wilkinson Stephen Williams David Williams Amy Williams Jack R Williamson Dr Cort Williamson James Willis Louise Wilson Jane Wood Oliver Woodward Francesca Woollen William Worby Dorroch Wright Emily Wright Jane Wright Yvonne Wrixon Laura Wyatta Abigail Yeo Rebecca Yeomans Annie Yorke Emma Young Jane Zorrinho Andreia

List of individuals who responded as part of a postcard campaign organised by the Human Rights Consortium (Northern Ireland)

Abro Hammad Adams Henry Addis Chris Aiken Deborah Aiken Bryony Alexander James Allison Laura

Alexander Deidre Alexander Geraldine Alger Marie Allen Carl Allen Charlotte Allen Jonathan


Amm Bavechira Anderson Caroline Anderson Andy Anderson Ashlyn Anderson Peter Andrew Gemma Annette JC Armstrong Derek Armstrong Kellie Armstrong Naomi Armstrong Sophie Ashby Shirley Aspin Natalie Austin Sharon Autumn Kitty Bailey Michael Bailie Kristopher Bailey Ursula Baird Vanessa Bakerell Niall Ball Claire Bamerjee Urbi Banks Caroline Bannon Kieran Barfoot Peter Barnes Snelbie Barrett Dan Barrett Karen Bashford Christina Basketfield Neil Baylie Christopher Beck Robert Begley Richard Beirne Maggie Belch Gillian Bell Clare Bell James Belshaw Melissa Berchlord Eva Best Laura Birel Tom Birkett Stephen Biscon Andrew Black Gerard Black John Burn Deborah

Blair Julie Blake Glen Blakely Sonya Blythin Joshua Bobb Jane Bodimon Qisi Bofire Richard Bond C Bond Victoria Bonner Matthew Bono Sergio Bothwell David Boyce Leya Boyce Paddy Boyce Sara Boyd David Boyle Sara-Lynne Bradford Michelle Bradford Toby Bradley Connor Bradley Fiachara Bradley Glenn Bradley John Bradley Patrick Brady Hugh Brennan Kirsty Brennan Stephen Brian Glen Briggs Claire Broderick Georgina Brooker Timothy Brotto Melisa Brown Eva Brown Fred Brown Kevin Brown Leone Brown Una Browne Nicola Buchanan Emma Buchanan Pauline Buglass Iain Bunting Deaglan Bunting Sara Burke Leona Burke Raymond Burme Dylan


Burns Brendan Burns Chelsey Burns Colin Burns Emma Burns Jennifer Butler Caroline Butler Elaine Butler Fiona Butler Gerald Byle Colette Byrne Grainie Byrne Carol Byrne Eoghan Byrne Jo Byrne Roisin Byrne Shannan Caddell Maria Caffrey Mark Cahoon Louise Cairns Kaitlyn Caleyron Nathalie Callaghan Brenda Cameron Alex Campbell Claire Campbell Elaine Campbell Emma Campbell Emma Campbell Emma Campbell Jonathan Campbell Peter Campbell Philip Campbell Rebecca Campbell Stephanie Campbell Stuart Campion Darren Campion Kerry Capson Cathy Captain Elaine Carberry Amy Carberry Anne Carberry Anne Carberry Eamon Carberry Eve Carberry Gerry Carberry Gracie Connallason Shaun

Carberry Jessica Carberry Lauren Carberry Matthew Carberry Molly Carberry Ronan Carberry Sean Carberry Sinead Carberry Stacey Carchrie Campbell Michael Carla-Ella Carr Brendan Carroll Gerry Carter Michael Cartmill Austin Carton Desman Carton Gabrielle Carville Arnold Carville Conor Carville Joseph Casiely Liam Caskey Caroline Cassidy Rhoda Cavanagh Chris Chan Karmeng Chow Natasha Citus Nami Clarke Emma Clarke Gemma Clarke Harry Clarke Karen Clarke Lincoln Clarke Natasha Clarke Stephen Clayton John Cleland Claire Clenagham Shea Coates Sarah Colguhoun Joshua Collins Amy Collins Mairead Collins Mairead Colombo Seaacuten Conbay Patriicia Conchatheir Ciaran Conlon Nuda Conlon Sean Paul


Connelly Conor Connolly Ita Connor Naomi Conor Oliver Conwell Eileen Cooney Julie Cooper Kevin Cooper Stephen Corbett Orla Corrigan Patrick Corrigan Sarah Corthy Lynsey Cousins Rooney Coyle Louise Craney Eric Crawford Brian Crawford Brian Crawford Jonathan Crawford Lucy Crawford Rebecca Cromar-Brooks Scott Crooks Darren Crook Loraine Crozier Matthew Cullen Celine Cullen Damien Cullen Gareth Cullen Hollie Cullen Mark Cullen Michael Cullen Michael Cullen Theresa Cullinane Olivia Curran Barbara Curran Paul Curran Phil Curran Sharon Curtis Owen Cusmeachin Martine J Daly Helena Dang Andy Davey Emma Davey Jemma Davies Ciaran Davis Lorraine Dorrachs Kathryn

Davis Naomi Dawson Emily Dehwar Saad Ullah Deiana Maria Delaney Sarah Delargy Sarah Derlin Aimee Deschatrettes Nicolas Devine Claire Devine Leone Devlin Anthony Devlin Madonna Dickson Nicole Diffin Daniel Diffley Maria Dillon Jarrett Dineen Rebecca Dodds Heather Doherty Adam Doherty Clare Doherty Gary Doherty Hayley Doherty Joanne Mary Doherty Simon Doherty Sophie Donaghy Matthew Donald Kate Donaldson Rachelle Donnan Stephen Donnelly Ann Donnelly Ann Donnelly Conor Donnelly E Donnelly Joseph Donnelly Laurence Donnelly Natalie Donnelly Roisin Donnelly Sarah Donnelly Sheila Donnelly Siobhan Donnelly D Doorley Pamela Doran Raymond Dorman Danny Dormar Atoine Dornan Bill


Dougan Dearbhail Douglas Colin Douglas F S Douglas Rabie Douglas Stephen Downey Declan Dugan Perry Dunn S Dunwoody Karen Dunyer Martha Dutton Dan Dwyer Nick Elliott Lauren Elliott Nicole Ellis Holly Ellison James Ethna Irvine Evans Steven Fahy Eimear Fallis Stuart Faria-Vare Asha Farinaite Aoneta Farrell Joanne Farris Timothy Faye Una Fearon Judith Fearon Sean Fegan Jennifer Fennell PhD Geraldine Ferguson Lynn Ferran Catherine Ferran Sinead Ferris Colin Ferris Dermot Finn Moore Finnegan Sarah Finnegan Tomas Fitzgerald Eisplan Fitzjimon Anna Fitzsimons Emma Flankin Leighane Fleming Sarah Flett Jolena Flinn Colin Flletcher Andrew Glover Suzanne

Flynn Paul Flynn Eileen Flynn Helen Flynn Jenny Flynn Leanne Flynn Michael Flynn Paul Flynn Roger Flynn Rosie Foster Teddy Fox Pat Fraser M French Alison Friel Cath Friel Eunan Friel Mary Fulton K Fulton Sadie Fuy Jade G B Gallagher Amie Gallagher Katie Gallagher Muirne Gallen Lorraine Gallen Marie Galloway Margaret Garbutt Georgina Garcia Paulino Garland Ryan Gartlin James Gates Emer Gaughan Daniel Gault Lauren Geddis Finn Gentlemann Doris Geoghegan Marion Gerard Sally Ghansah Ebenezer Glasgow Declan Gibb Andy Gibnay Rowan Gibson Diane Gill Craig Gilmore Aideen Girvan Davina Glass Aoife


Gonsalves John Goodly Matthew Gordon Alistair Gordon David Gordon Peter Gorman Eileen Gorman Tomaacutes Gormley John Gormley Michelle Gornely Orla Graham Irene Graham James Graham Jonathan Graham Karlane Graham Keith Graham Kim Graham Stephen Grant Sarah Gray R Green J Greenan Sean Greener-Simon Kayleigh Greenwood Stephanie Greer Nora Greer Tracy Greglegan Sandra Grehan Gerry Gribbin John Gribbin Mary Gribbon D Grier Tommy Grimason RJ Guiles Valerie Guinn Robert Haate Dooley Haggon Ann Hainsworth Paul Hall Dan Hall Kim Halliday David Hamilton Josh Hamilton Joy Hamilton Mike Hamilton Paul Hampton Olivia Horrow Gay

Hanill Adrian Hanley Jane Hannity Bronagh Hanratty Kevin Hanratty Michael Hanratty Rachael Hanson Tom Hardy Ben Harley Linda Harris Ariya Hartin Paul Harvey Steve Harvey Steven Hassan Daniel Haughey Ryan Haughley J Hawley Claire Hawthorne Laura Haydon Laura Healey Andrew Heaney Claire Hearst Francis Henderson D Hennessy Anne Henriquez Victor Henry K Henry Kevin Henry Lesley-Ann Herron Deborah Higgins Laurie Higgins Louise Hill Caroline Hill Danni Hill Rowland Hinds Thom Hodgins Jennifer Hoey Kelly Hoffman D A Hogarty Andrea Hogg Chris Hoggan Rachel Holding V Holland Grainne Holland V Holmes Valerie Keenan G


Horte Bryan Houston Stephen Houston Tony Howard Beryl Howard James Howard Roby Howath Victoria Howse Stephen Hudson Lynsey Hughes Breedsagh Hughes Eoin Hughes Katrina Hughes Kevin Hughes Neal Hughes Nicholas Hughes O Hussain Lisa Hussen Serwan Hutton Dorothy Hyndman Mari Jaho Greg Jallow Rosetta Jamison Fiona Jampen Virginia Janagh Peter Jedten Hilary Jennings Jillan Johnson Catherine Johnson Terry Johnston Irene Johnston Lesley Johnston Noeline Johnston Seamen Johnston William Johnston Sean Jolliffe Lucy Jones B Jones Graham Jones Tanya Jopat Sandesh Kalke Sabine Kane Bobby Kannawary Ellen Rose Karan Else Kaur J Lee Gareth

Kavanagh Patricia Keegan Amy Keeran Molly Kelly MBE Mark Kelly Allan Kelly Amy Kelly Bernie Kelly Conor Kelly Donal Kelly Geraldine Kelly Paddy Kelly Samantha Kelly Sheila Kennedy S Kerr Peter Kerr R Kettyles Davy Khan Hammad Khattak David Kienan Paula Kieran Dorragh Killy Rebecca King Johanna King William Kinnear Lauren Kinney Jessica Kirby David Klisa Alex Knox James Kohanoff Anna Kolbohm Cara Kolbohm Luke Kolbohm Madonna Kontorravdis Elli Kristiansen Mikali Kunjumon Ivochen Kunjumon Job Kunjumon John Kunjumon Lal A Lambkin Angus Lappin Brendan Larkin James Larmour William James Law Joe Leatham Paula Leckey Alison


Lewsley Joe Liddy Catherine Liddy Conor Liddy James Liddy Morgan Liddy Orla Liddy Sinead Lings Alastair Linton Judy Lloyd Kiern Lodwick Penny Logan Amy Logan Carahan Loughran Tomas Loughrey Stephen Lowe Johnny Lowry John Ludlow Maria Lui Row Yee Lundy Grace Lutton Rebecca Lydon Darragh Lydon Myra Lyle Timmy Lyle-Toal Trevor Lynch Catherine Lynch Ciara Lynch Hannah Lynch Jayne Lynch Katrina Lynch Martin Lynch Paul Lynch Seamus Lynoh L Lyons Donal MacKay Terry MacFlynn Paul MacGolla Greigoir MacIntyre D MacIntyre Orla Mackel Paddy Mackel Paddy Mackenzie Gerald MacKenzie Pam Mackie Liam Mazumder Sakhawat

Macky Colum MacPhillips Caroline Maeve Nugent Maffini Stefano Magee Brian MaGee Dionne MaGee Kerianne Magee Laura Magee Shannon Maguire Aodhon Maguire Christopher Maguire Conor Maguire Daniel Maguire Kevin Maguire Michael Maguire Miread Maguire Gerry Mahaffy Joanne Mahaffy Lia Mahaffy Matthew Mahaffy Thomas Maher Greg Mairie Paula Malgaonkar Bhushan Mallon Chris Mallon Patrick Malorrian Philip Mangan Laura Marley Ann Marley Claire Marlow Matthew Marquess Cathy Marshall Chelsea Martin Ciara Martin Clare Martin Phil Martin Rebecca Martin Steven Martland Kyle Massey Ciaran Matarire Diarmuid Matthews Heather Maveily David May Robert Mayne Tom Mayor Jay


Mc Mahon Ryan Mc Menamin Charlie McAdam Rachel McAleeran P T McAliskey Brendan McAnaller Mary McAnenly Jimmy McAnenly Susan McAnenly Zach McAteer Alice McAteer Dan McAteer Marie McAuley Sarah McBeigh Anna McBeth Aoife McBhranar Cliodhne McBien Declan McBride Finton McBride Maggie McBride Rebecca McBride Ruari-Santiago McCabe Roz McCabe Andrew McCabe Anton McCabe Ciaran McCabe Megan McCabe Rebekah McCafferty Imelda McCafferty Jim McCafferty Mairead McCahe Kevin McCallary Wendy McCallon Nicola McCallum Caoimhe McCann Aidan McCann David McCann M McCardy Mair McCarron Shane McCharlton James McChrystal Daniel McClaskey Paul McClaskey Peter McClean Gareth McCleary Jenny McFall Connor

McCleary Maura McClelland Jamie McKenna Mary McKenna Sean McClelland Natasha McClelland Robin McCloud Sheena McClure David McColgan Sarah McComb John McCormick Neil McComb Laura McCondille Doreen McConnell C McConnell Niamn McConville Kieran McCoppin Kevin McCormick John McCourt Fiona McCrea Berni McCready D McCready Paula McCrisken Rachael McCrudden Lyn McCullagh Donna McCulloch Aaron McCurry Jennifer McCurry Jennifer McCusker Deirdre McDermott Brian McDonagh Dean McDonald Neil McDonald Susan McDonnell Aidan McDonnell Claire McDowell Aidan McElhohn Edel McElmery Callie McEochagath Sinclair McEven Susan McEvog Niamh Mcevoy Barbara McEwen Jonny McFadden Aime McFadden Bernie McFadden Ryan


McFarl Stephenie McFarland Annmarie McGann Amery McGarry Rosin McGee Matt McGee Patrick McGettigan Shauna McGivon Clare McGourby Liam McGovern Adrian McGowan Patrick McGranaghan Guibhin McGrenaghan Aoife McGuchian Nuala McGuchian Rioghnach McGuckian Concobhar McGuckian Vincent McGuckin Sarah McGuckion Aoife McGuiness Gavin McGuiness Gav McGuiness Glenn McGuiness Sorcha McGuiness William McGuire Aaron McGurk Amanda McHere Ann Mcherrn Catriona McIvor Conor McKane Damien McKay Deirbhile McKeagnan Kathy McKearney Maureen McKeating Michelle McKee Anthony McKee Felicity McKee Sally McKeefsy Pearce McKeegan John McKeever Darren McKeever John McKeever Lucia McKenna J Mckenna Mary McKenna Matre McQuoid Meadhloh

McKenna Maura McKenna Sean McKeown Marieanne McKeown Michael McKeown Michael McKernan David McKibbin Martin McKieran Patrick McKinney Owen McKinney Ryan McKinnon Martin McKnight Katy McLafferty Conor McClatchy Barrie McLaughlin Conrad McLaughlin Deborah McLaughlin Jean McLaughlin John McLaughlin Patrick McLeay Stephen McLersh Ciara McLister Paula McLory Stephanie McMahon Deirdre McMahon Niamh McMillan Antoinette McMillan Paul McMullan B McMullan Tony McMullun Yasmin McNally Natalie McNamara Kevin McNaughton C McNee Tayra McNeil Colin McNeiss Shauneen McNern Jennifer McNicholl Louise Mcnulty Andrea McPhillips Marcus McPoland Emma McQuade Natasha McQuoid Aine McQuoid Aisling McQuoid Mairead McQuoid Margaret


McQuoid Nathan McQuoid Oisin McQuoid Pearl McReynolds Aine McReynolds Justin McUitty-OrsquoHaran Helen McVeigh Dympna McVeigh Hannah McVey John McWilliams Patrick McWilliams Patrick Mearns Tracy Meelan Angela Meheffy Debbie Melby Eoin Michael Reynolds Michael John Midgley Hilary Mikelly Matthew Millar Alison Millar Eileen Millar Mark Millar Melissa Millar Michelle Millar Michelle Miller Ashley Mills Emma Mitchell Ian Mitchell Leanne Mitchell Ruth Mnjoo Coumilah Molloy Eddie Monaghan Keran Montgomery Isabelle Montgomery Mark Mooney Dominic Mooney Nicola Mooney Paddy Mooney Rachel Moore Aisling Moore Cake Moore Carole Moore Clark Moore Karl Moore Kathleen Noel Jamie

Moore Kelly Moore Michael Morgan Ceardha Morgan David Morrisey Mary Morrison Hannah Morrison Laura Muinzer Thomas Muldoon Bernie Mulford Amy Mulholland Tania Mullan Barbara Mullan David Mullan Matthew Mullen Bob Muller Janet Murchan Roisin Murphy Victor Murphy C Murphy Courtney Murphy Danielle Murphy Deborah Murphy Francis Murphy Joanne Murphy Julie Murphy Kathy Murphy P Murphy Paul Murphy Roisin Murphy Sean Murphy Tom Murray Colette Murray Ellen Murray L Murray Michael Murray Nicola Murray Rosaleen Nadu Tamil Naidu Rajan Neil R Neill Jamie Neill Maurie Nelis Cathy Newry Martin Gray Nic Claire Noble Kylie


Nolan Ciaran Nugnez Nile Nutt Helen OrsquoConnor Nicole O Donnell Catherine ODonnell Kevin ODonnell Martina OrsquoDonnell E OrsquoHagan Lucy OrsquoHanlon Shauna OrsquoHare Brian OrsquoHogan Helen OrsquoHogan I OrsquoHogan Kate OrsquoHogan Thomas OrsquoMahoney James OrsquoMarlain Ciaran OrsquoMarlon Ruairi OrsquoNeill Brian OrsquoNeill Ernest OrsquoNeill Paul OrsquoNeill Philip OrsquoReilly A OrsquoReilly Aoife OrsquoReilly Brendon Ogh Ryan OHanlon Thomas OHare Maire ONeill Nuala ONeill Sean ONeill Strabane Aaron OPrey Martin ORegan Sean OReilly Catherine ORourke Dearbhla Orr Thomson Orwin Keith Owen Ciaran Palka D Parke Aaron Parke C Parke Natalie Parker Megan Patience Eileen Patterson Emma Reaney Cara

Patton Ian Paxton Francesca Pentney Zarie Perry Alee Philpot Alex Philpott Jen Pierson Claire Pile Arron Pobloth Michael Polland Anne Pollock Jackie Pollock John Popalt Virginia Popoff Alex Porter Anthony Poturyahya Tara Price Christina Prior Pierce Purdie Angie Q Paige Quaid Paddy N Quarney Geraldine Quienny Nuala Quigg Danny Quinlivan Una Quinn Catherine Quinn Connor Quinn Edel Quinn Emma Quinn Frances Quinn Holly Quinn I Quinn Joseph Quinn Lorcan Quinn M Quinn Marie Quinn Opla Quinn Orla Quinn Paddy Quinn Una Raddy S Rafferty Helen Rafferty Oohron Raleigh Aoife Ramsey Anne Rankin Fiona


Reid Jacquie Reilly Mikaela Reilly Olga Baunbaeligk Riby Evelyn Rice Emma Rice Fiona Rice Glenn Rice Jonathan Richard Clarke Ridgley Conor Ritchie Shona Roarty Hugh Robb N Roberts Laura Robinson Christina Robinson Gerry Robinson Ryan Rodgers Cathal Rodgers Paula Rodgers Timothy Rodriguez Harold Roferty Dan Rogers Elizabeth Rogers Patrick Roomery Amy Rooney Colleen Rooney Jemma Rooney John Rooney Lucia Rooney Paul Rosborough Glenn Rosoul Iram Ross Stephanie Rowan Niamh Rowe Molly Rowland Jasmine Ruck Paul Ruddy Jenny Rush Aaron Ryan Morgan Ryan Connor Salmon Dean Salt Lesley-Ann Samson Joanne Sandford Conor Stewart Rebecca

Sanlery David Santini Virginia Santo James Savage Deirdre Sayers Naomi Scally Mary Schito Tony Scobie Graham Scott Adam Scott Lynn Scullion Maria Segly Tina Selfridge Samantha Sheac Aneni Sheeran Claire Sheil Derek Sheldon Rebecca Shields Valerie Shilliday Mark Simmons Sonya Sims Andy Sinnamon Alison Sloan Catherine Sloan Michael Smith Amy Smith Daniel Smith Philip Smith Simeon Smith Stephen Smyth Amanda Smyth Claire Smyth Edel Snowney Rebecca Solaz Maria Spedding Gary Spence Kerry Spence Pauline Spratt Adam Michael St John Jilly Stafford Lisa Starkey Craig Steele Kristian Stevenson Kathyrn Stewart Eoin Stewart Jones Stewart O

Stewart Sarah Strain Kerry Stranney Aoife Sullivan Lynda Summerville Cathy Swallow Jonathan Sweeney Noreen Taylor Jonathan Taylor Julie Taylor Sophie Teapot Hannah Teeling Emy Teggart Anne Teggart Grainne Teggart Jim Teggart Patrick Telford Matthew Termini Amy Thomas Tina Thompson Brian Thompson Frances Thompson Geraldine Thompson Glenn Thompson J Thompson R Thompson Thomas Tilson Paul Toccur Nicola Todd Diane Toller Gerald Tombill Robert Toner D Topp Heiko Towey Michelle Townsley Lucinda Tracey Caoimhe Trainor Taryn Trainor Turlaugh Traynor Seanin Traynor Thomas Treavere N Trevor Philip Trimble Joanne Trimble Marjorie Tuck Daniel Wilson Danielle

Tunney Aine Turner Catherine Turner Colleen Turner Colleen Turner Patrick Tweed Derek Ungureaunu Andra Vaughan John Wade Sammy Waldron Daniel Walker Jonathan Walker Lynda and Ernest Walker Tori Wallace Emma Wallace Rachel Wallace Rachel Walls Clare War Andrea Ward Clare Ward Sinead Ward Trisha Warnock Peter Wass Michael Watson Anne Watts Paul Webb Geraldine and Victor Webb Rowan Webb Simon Weston Dale White Bill White Bobby White Kieran White Georgina White Rod Whitehouse Sharon Whittaker Sharon Whittle Paul Whittley Rosemary Wilkson Mark Williams Reanne Williams Richard Williamson James Wilson Jan Wilson Andrew Wilson Angela Wilson Ben



Wilson Gordon Wilson Niamh Wilson Patricia Winetsell Evan Wright Karen Wright Owen Wynn Sonia Yahyaoui Aisha Yiasouma Kowlla Young Alannah Young John Young John Richard Young Susan Zaranitt Elizabeth Zokaityte Gintare

The Commission received a further 18 postcard responses from individuals whose identities we were unable to decipher


List of respondents to the Discussion Paper lsquoDo we need a UK Bill of Rightsrsquo (August 2011)

List of respondent organisations and bodies Responses from groups of organisations

Response from o Age UK (Derby and Derbyshire) o Amnesty International (Derby and Derbyshire

local groups) o British Institute of Human Rights (national) o Paragon Law o University of Derby (Law School and

Multifaith Centre) and o Derby and Derbyshire Race Equality

Commission Response from

o AIRE Centre The o Amnesty International o European Human Rights Advocacy Centre o Human Rights Watch o INTERIGHTS o International Commission of Jurists o JUSTICE and o Open Society Justice Initiative Response from

o Christian Concern and o Christian Legal Centre Response from

o Family Planning Association and o Brook

Responses from single organisations and bodies

A Dignified Revolution Action on Hearing Loss Active Independence AdEd Knowledge Company LLP Age Cymru Age UK Almshouse Residents Action Group The Amnesty International UK Black Disabled Peoples Association Bristol Refugee Rights British Association of Social Workers

British Humanist Association British Institute of Human Rights British Irish Rights Watch British Refugee Council British Standards Institution Campaign Against Censorship Celtic Knot Children and Families Across Borders Children in Scotland Childrens Commissioner for England Childrens Commissioner for Wales Church of England Mission and Public Affairs

Council Citizens Advice Civil Court Usersrsquo Association Committee on the Administration of Justice Constitution Society The Criminal Bar Association Darlington Association on Disability Disability Charities Consortium District Bench (Magistratesrsquo Courts) Diverse Cymru East Midlands Regional Equality and Diversity

Partnership Eaves Elcena Jeffers Foundation Equal Rights Trust Equality and Diversity Forum Equality and Human Rights Commission Equality Commission for Northern Ireland Equality South West Faculty of Advocates False Allegations Support Organisation (UK) Family Law Society Family Rights Group Federation of Muslim Organisations Fortnight Educational Trust Forum for Stable Currencies Freedom from Torture Her Majestyrsquos Inspectorate of Prisons Homeless Link Human Rights Consortium Northern Ireland


Human Rights Consortium Scotland Human Rights Lawyersrsquo Association Imkaan Immigration Law Practitionersrsquo Association Independent Academic Research Studies Information Commissionerrsquos Office Irish Congress of Trade Unions Joint Council for the Welfare of Immigrants Judicial Executive Board of England and Wales Just Fair JUST West Yorkshire JUSTICE Kindness in Mind Law Centres Federation Law Society of Scotland Law Society of England and Wales The Lesbian and Gay Christian Movement Lesbian and Gay Foundation The Liberal Democrat Home Affairs Justice and

Equalities Parliamentary Policy Committee Liberty London Metropolitan University Human Rights

and Social Justice Research Institute London School of Economics Human Rights

Futures Project Macmillan Cancer Support Manchester NO2ID Market Research Society McEvedys Solicitors and Attorneys Mencap MENTER Migrant Rights Centre Bristol Migrantsrsquo Rights Network Migration Watch Mind Minister of Justice David Ford MLA Northern

Ireland Executive National Aids Trust National Assembly for Wales Constitutional amp

Legislative Affairs Committee National Council of Women of Great Britain

The National Lesbian Gay Bisexual and

Transgender Partnership National Secular Society National Society for the Prevention of Cruelty to

Children National Union of Students

NHS Wales Centre for Equality and Human Rights No Recourse to Public Funds Network Northern Ireland Association for the Care and

Resettlement of Offenders Northern Ireland Council for Ethnic Minorities Northern Ireland Human Rights Commission Northern Ireland Public Service Alliance Northern Refugee Centre Northumbria University School of Law (student

response) Paragon Law Parliamentary and Health Service Ombudsman Participation and the Practice of Rights Project Pirate Party UK POhWER Prison Reform Trust Publishers Association The Quaker Peace and Social Witness Crime

Community and Justice Group Reformed Churches Caucus of the Lesbian

and Gay Christian Movement Reneacute Cassin Rights of the Child UK Rights of Women Royal Association for Disability Rights Royal College of Nursing Royal College of Psychiatrists Royal National Institute of Blind People Saffron Neighbourhood Council Save the Children Scottish Association for Mental Health Scottish Government Scottish Human Rights Commission Scottish Independent Advocacy Alliance Scottish Parliament Justice Committee Scottish Womens Aid Senators of the College of Justice Scotland Sheffield Law Centre Society of Conservative Lawyers Society of Editors Solicitorsrsquo International Human Rights Group Spectrum Derbyshire Stonewall Sussex Law School Centre for

Responsibilities Rights and the Law Sussex Police


Trades Union Congress TravellerSpace UK Association of Women Judges Ulster Human Rights Watch UNICEF UK UNISON Knowsley Branch UNISON Northern Ireland United Kingdom Independence Party United Nations High Commissioner for

Refugees University College London Institute for Human

Rights University of Cambridge Centre for Public Law University of Oxford Pro Bono Publico Unlock Democracy Wales Monitoring Group on the UN Convention

on the Rights of the Child

Welsh Centre for International Affairs Welsh Refugee Council Welsh Womenrsquos Aid Wilberforce Society Wild Law UK WomenCentre Kirklees Womens Resource Centre World Wildlife Fund UK Radlett David and Radlett Susan Roberts Paul and Roberts Jeanette Smales Colin and Pat Tucker Andrew and Liz Watson Richard and Watson Anne Wood Sarah and Wood Janet Zetter Roger and Zetter Elizabeth

List of individual respondents Responses from more than one person Response from

o Dr Elizabeth Ashford o Dr Andrea Baumeister o Dr Rowan Cruft o Professor Anthony Duff o Dr Simon Hope and o Dr Ben Saunders

Response from o Adam Benmakhlouf o Catriona Ferguson o Euan Fraser o Amy Hogarth o Eilidh McAlister

Ashley Raymond and Ashley Megan Clifton Brian and Clifton Tricia Cole Roger and Cole Lucy Grayson John and Horton Marion Hilken Richard and Hilken Sylvia Liles David and Liles Ellen lsquoMark and Adrianrsquo Mitchell Graham and Mitchell Stella

MorrisGary and Wang Lucas

Responses from individuals

Acton Karl Adcock Alison Agostini Giulio Aitken Ross Aldridge Chris Alexander Roger Ali Naheen Allen RP Allen QC Robin Allen Tessa Alston Dr Winston C H Amesbury Brendan Amos Merris An Philip Anderson Edward Anderson Steven Anonymous A Anonymous B Anonymous C Anonymous D Anonymous E Anonymous F Anonymous G Anonymous H Anonymous I Anonymous J Anonymous K


Anonymous L Anonymous M Anonymous N Anonymous O Anstey Ben AQ Arnheim Dr Michael

Arno Thomas Arnold Peter Ashmore Stephen Ashton Jack Aslam Wasim Austin David William Baister Master Stephen Baker Dr Dennis Baker Stephen Banton Michael Bargent Daniel Barker Greg Barley Dr Simon Barnes Graham Barnes Vartouhie Barney John M Barraclough Liz Barrow Paul Basing Steven Baxter Trevor Baynes Tim Beard Dave Bearfield Colin Beirne Maggie Bell Gary Bell Michael Bell Tomos Bellamy R Bellamy R J Belton John Bender David Bennett Helen Bennett Judith Bennetts Tyler Bergin Allen Bernal Paul Bettes DC Bickford Bob Biggin Ben

Bingham JP Graham Birch Chris Birrell Iain Bisatt Philip Bishop B Bishop Clive Black Peter Blackburn Professor Robert

Blackman Noelle Blackwell Paul Blakeley Eric Blissett Bill Blissett Lesley Bloxham Peter Booth Dr Paul HW Borges Ashley Boswell James Boswell Professor Gwynneth Bourne Dr Michael Arnheim Charles Bowen RV Boyd Michael Bradley Peter Braid Dr NW Brannigan IJ Briggs Don Bristow G J Britten David Brodie Stanley QC Broggio Michael Brooking Thomas Fiona Brooks Jonathan Brown Danny Brown Dr Judith Brown Tony Bruce Peter Bruck David Bullock Dr Gavin Burchett Elizabeth Burdett Dave Burgess Paul Burgess Victoria Burns James Burrows Nigel C Burton Mark Burton Nick Butcher Sarah Butt Ange


Butt David Cadier Linda Cadier Paul Cagan Benj Cahill Anthony Callaghan Mary Callen Sara Calver Bruce B Cameron Sheila Campbell Dr Nicholas

Canning Simon Cannon Graham Canter Professor David Carins Daniel Carlile of Berriew QC Lord Carne Simon Carter Paul R Carver David Cavanagh Dr N Cave Dominic Cemlyn Dr Sarah Champneys John Chaney Mike Cherrington Phillip Chick Timothy J Chilton James Clark Adrian Clark Charles Clarke Brian Clarke Michael W Clarke Jackie Clarke Paul Coggins Richard Colclough Adam Coleman Tony Coles Pete Collinson Jonathan Connelly T Connolly Abigail Connor Steve Elaine Cook John W Cooke Steve Cooke Susan Cooper Beth Cooper John

Coram Iain Corne Anna Corrigan Ray Coston James Cottam Gervase Courtney Christine Courtney E R Cozens Jean Craig Robert Cranmer Frank Crawford Michael Hewson Crawshaw Ralph

Cresswell-Plant John

Crouch Sheila Crowe Ian Crowhurst A D Cule John Michael Cunliffe Janet Curl Geoffrey Curley Larry Dalton RA Darroch His Honour Judge Alasdair Davis Jack Davison Andrea Tom Dean Professor Hartley Dearle David Deer Philip Dempster Steven Denison Peter DeSandoli Susan de Than Claire Devaney Michael Dewhurst Christine Diamond Paul Dick Charles Dickson Professor Brice Dimmock Dr Nathan Donnelly Dennis Donovan Virginia Douglas Benedict Downing James Doyle John Drew Philippa Drummond Gordon B Drury Mark


Dudgeon Jeffrey Duff MEP Andrew Dugdale David Dumper Hildegard Dunsmore David L Duval Philip DW Edison Peter Edwards R Edwards Rupert Effer Ernest Eisenhandler Claire Elliott Bruce Elliott Dr Patricia Ellman Michael P D Elwood Anna Emmott Steve Erswell Dr Chris Essajee Huzaifa Etienne Michael Evans David Evans Gary Evans Jessica Evans Matthew Evans RD Everitt Anthony J Faulkner David Ferguson N Finnigan Beth Fisher Frankie Fleming Sharon Fletcher E Fletcher Peter Flinn Graham Florey Richard Foley Seamus Ford Derek Ford Marie Fordham QC Michael Fordham Nigel Fox Michael Franks Terry Frost Richard Fryett P Furey Micheaacutel Garcia Elizabeth

Garrad Gordon Gasper Julia Gazur Dr Ben George Dr Rob Ghul Rayya Gilbert Geoff Gilmore Angela Gogan Mike Goldspink Rob Goodliffe John Goodyear Adam Gordon Danka Gordon Jack Goundry Robert Gower Paul Grant Alex Greacuteci Leacutelia Greenwood Miss M Griffith David Griffiths David W Griffiths Roger Grudgings Mrs Jean Grunewald H S Gutierrez Abbi Gwynn Roger Gwynne Stephen Hadden Professor Tom Hall Alex Hall John Nielsen Hallard Valerie Halliday Christopher Hamilton CF Hamilton Stuart Hancock Andrew Hardwicke Tom Hargreaves Peter Harrington Regina Harris MP Rebecca Harrison Pauline Harrison Thomas Harrison-Smith Tony Hart Jean Harty Lowenna Harvey K Harvey Simon Hawkins Peter


Hayes Kate Hayes Luke Hazel Healy-Birt Eleanor Heap Graham Heatley C Helliwell S Hemming John Henley Jackie Henry Renee Hickman Tom Higgins David Hildreth Margaret Hill Chloe Hill Jeffrey Hill Michael Hillard Francis Hirst Peter Hockey Dr Julia Hodge Canon Michael Hodgson Eddie Hodson Professor Mark Holland Ralph Hollowell Ann Holt Keith Hooper J Hopkins David Hoskins Gareth Houston Fleur Houston Walter Howell Dominic Howells Peter Hudson John R Hughes Jacqueline Hughes Laurence Hughes MP Simon Hull Professor John M Hunt Anita Hussain Taniya Idelbi Saara Immanuel Harold Irvine Colin Jackson Angela Jackson Dennis Jackson Harry Jamall Saba James Christopher L

James Jenita Jansen Kai Jaspert WP

Jefford Tom

Jester Natalie Johnson Deryck Johnson Dr Paul Johnson Guy Johnson Jennie Jolly Elizabeth Jones Caroline Jones Huw Jones Kirsty Jones Dr Madeline V Jones Trevor Jull Peter Jupp Brian Kagan Professor Carolyn Kaplan Jessica Kaya Julie Kemmish Ian Kemp Claudia Kendall John Kenny Michelle Keown Guy Kerr Alan Kerr Chris Kerrigan Mike Khan Kazim Kilby Chris King Jenny Kingsley-Smith Brian Kirk Ian Kirwan Frank Kissane John Kitcat Jeremy Klingsick Martin Koslowski-Smith Kevin Kosminsky Peter Lachal Laurent Lally J Langley Anna Laribi Youcef Larvor Brendan Latham Philip Lawrence JR


Lawson-Cresswell Tallulah Le Sueur Professor Andrew Leadbetter WJ Lees Brian Lees Peter Lennon Jamie Andrew Leonis Marilyn Lewis David Lewis David R Lewis Harry Lewis Jonathan M (Immigration Judge) Lewis Mandie Lipnicki John Lloyd Konnie Lomax Dr Peter Longworth Jackie Lonsdale Anne Lovell Luke Lucas Clare Luke Aaron Lynch William Maas Robert Macaulay Alex MacCaw Timothy MacDonald Dr Kate Macehiter Neil MacKenzie Allan MacKintosh Scott Macleod John Mactaggart MP Fiona Maher Gillian Maldred Helena Malik S Mallett Robina Manfield A John March Sally Marchal Faith Marchesi David Marsden Barbara Marthews Gregory Martin Kate Martin Mary Martin Steve Massey Edward Masterman John Masterman Roger

Matt McAliskey Bernadette McCaffrey Joseph McCart Neil McClean John McDermott Angela McDermott John Colin McDonagh Michael Mckay-Dirden Michael McKeane Dr John McMahon Tom McMeekin Dan McNab Elizabeth Mead Chris Mejka Wladyslaw Mery David Meteyard Barry Milan Michael Miller Chris Miller Gavin Miller J Miller Robert Milne Piers Mindel Angie Miselbach Deacutelise Moffat CE Mogg John Monroe Fiona Moore Professor David R Moore Professor Robert Morgan Dr Austen Morgan John Morrison Rosina Morton Andrew Morton RP Muers Robin Mukherjee Neil Mullen Timothy I Mulligan Peter Mulqueeney Ronan Murphy Kay Murray Alasdair Murray John Murray Susan Nash Daniel Nicholas Joseph


Njoroge Rose Noakes Eileen Noble Ed Nock Robert Nohr Jorgenson Anna Katrine Norris Michael North Professor JA Noyes Ray OBrien Rita OConnor Patricia OConnor Richard Olaiya HBA Oliver J R Olsson John Orchard Peter OReilly Fiona Orr Willie OSullivan Huw Outhwaite Reynold Overstall Peter Owens John Oxlade Roger Padfield Rick Palmer Anne Parker Alan Parker George Parkinson Neil Partington Keith N Partington Lynne-Marie Partridge Derek W Partridge John Paterson Iain Pathak Jessica Rani Pathi Deepa Patterson Michael Patton Sheila Pattrick Hugh MBE Payne Andreas G Payne David Payne Robert Pearson David Pender George Penny Gerald Pepper Joe Peppin Stephen

Phillipson Professor Gavin

Pilsbury John Plumb David Pogge von Strandmann Hilary Pogge von Strandmann Victoria Pollock David Porter Jessica Portes Bobbi Poulton Valerie Poynton Jeremy Pragnell Jim Pressler Dr Shirley J Proudlock J Pullen Rhys Purnell Chris Quinn Lee Raab MP Dominic Raha Nat Randall Graham Ratcliffe William Rathbone Jeanne Read Tim Reece Patrick Rees Ann Rees Meirion Rees Shan Rees Tom Reid Kiron Rendell Dr Edward Rennie Anne Maria Riches Brian Ridge P Ries Emmanuelle Riley Gill Rob M Roberts D Roberts Mike Roberts Mr Gwyn Robertson John Robinson Adrian Robinson Alan Robinson Cllr C Robinson Stephanie Rogers Linda Rolfe Paul Ronchi Paolo Rooms Nigel


Rooum Donald Ross Linda Row Miles Rowlands Neil Rowlands Owen Ruckman Neil Ryder Ken Ryder S C Ryland Peter Salsbury Amy Salway Keith Sanders MP Adrian Sanderson Russell Sandrey Emma Sangster Richard Sargeant John Sargood Adrian Saunders Stuart Savage Peter Saward Jill Saxon Roger Schaefer Barbara Schnupp Professor Jan Seddon Vicky Sekindi Fred Sells QC Oliver Shaban Zekiye Sharkey Derick Sharman Nick Shaw Christina Shaw L Shaw Michael Sheeran Ralph Shelley Diana Sheridan Geoff Sherriff DJB Shirley Martin Short David F Shroff Aspi Shrubb Kevin Simkins Captain Mike

Simmons Abigail Skellett Nicholas Skelton Colin Slater Mark A Smart Verity

Smith Al Smith Andrew Smith Kevin Smith C Snow William Solomon David Soto-Miranda Diego F Sowerby Brian Spencer Dr Michael Stagles JR Stainton Richard Staniforth Jackie Starling Sam Stedman Simon Stenning Keith Sterland Mike Stevenson John Stevenson Mark Stirling Damian Stone Kate Stone Will Strasburger Paul Stuttaford Maria Swallow John Tansley Peter Taylor Angela Taylor David F Taylor Jon Taylor Peter Jason Tehrani Professor Dabir H Telford Rob Theaker Linda Thomas David Thomas Hanna Thompson Kenneth Thompson Thomas Todd Gabrielle Todd Trisha Tomlin Alison Torrance Carolyn Towers Philip Townsley Stephen Tredgold Christopher Tredgold Christopher Tucker Andrew Tucker Phil


Tupling Maureen Turner Dave Turner Grahame Turner Rollo Turnsek Helmut Turpin Colin Van Someren Laurie Veja Retesh Vero Mark Vineall QC Nicholas Vinton Richard Walinets Stanley Walker Antony Walker Kelvin Wall Alec Walsh Thomas Walton Dr Ronald G Walton Keith Ward John Warren Paul Warren Peter Waters Lee Watkins Stephen Watkins Elizabeth Watkins Mike Weatherald Cathy Webber Thomas Wheeler Stephen Wheeler William Whelan John Whitaker of Beeston Baroness

White JM White Simon Whitenstall Joseph Whittaker David Wilkes Jon Wilkins Joan Wilkinson Sue Willenbrock Charles Williams Alan Williams Amy Williams David Williams Gareth Williams Paul Winslow Lucius Wintemute Professor Robert Withers Clive Wood Stella Woodhouse George Woodman Connor Woodroffe Glen Woolley Jasmine Worrall Stephen Wright Andrew Wright J Wrigley Peter Wyatt Richard Yates Pol Yawer Emad Yeo Rebecca Young Brian


Annex G

Consultation Summary







2

Table of Contents

Introduction 4

Views on a UK Bill of Rights and on the Human Rights Act 1998 5

Do we need or should we have a UK Bill of Rights 5

Alternatives to a UK Bill of Rights or to the current system15

The Human Rights Act 1998 retain or repeal 16

Incorporation of the European Convention on Human Rights 18

If there were to be a UK Bill of Rights should it replace or sit alongside the Human Rights Act 1998 24

Expressing rights differently 26



The duty on public authorities44

The role of responsibilities in any UK Bill of Rights48

The duty to take Strasbourg case law ldquointo accountrdquo54

The balance between courts and Parliament58

Devolution and a UK Bill of Rights 65

Promoting a better understanding of the true scope of our obligations under the European Convention on Human Rights79

Reform of the European Court of Human Rights 82

3

Introduction In August 2011 the Commission published a Discussion Paper entitled lsquoDo we need a UK Bill of Rightsrsquo which sought the views of the public on four broad questions The Commission received 904 responses to its Discussion Paper from individuals and organisations many of which were statutory bodies umbrella organisations or representative bodies Building on the wide range of views received the Commission published a Consultation Paper in July 2012 that asked 15 further questions The Commission received 214 responses to the Consultation Paper from individuals and organisations In addition 1875 pro forma postcard responses were received to the Consultation Paper from individuals as part of two organised responses

This paper summarises the responses to both papers Not all respondents answered all questions and as a result the sample sizes in respect of each question vary Where an individual or organisation responded to both papers on the same issue we have counted their views only once An element of interpretation and judgment was necessarily required in analysing the many views expressed All responses are available in full on the Commissionrsquos website

4

Views on a UK Bill of Rights and on the Human Rights Act 1998

Do we need or should we have a UK Bill of Rights

1 In our first consultation we asked (1) do you think we need a UK Bill of Rights

2 In our second consultation we asked

Question 1 What do you think would be the advantages or disadvantages of a UK Bill of Rights Do you think that there are alternatives to either our existing arrangements or to a UK Bill of Rights that would achieve the same benefits If you think that there are disadvantages to a UK Bill of Rights do you think that the benefits outweigh them Whether or not you favour a UK Bill of Rights do you think that the Human Rights Act ought to be retained or repealed

5

3 Given the overlapping content of these questions we considered the responses to these two questions together

4 Approximately 970 respondents across both consultations answered the question of whether we need or should have a UK Bill of Rights many of whom were statutory bodies or umbrella organisations

5 Of those who addressed this question approximately 440 (45) opposed a UK Bill of Rights 270 (28) advocated a Bill of Rights or expressed conditional support for one and 260 (27) were equivocal meaning that they discussed the advantages or disadvantages of a UK Bill of Rights without concluding expressly in favour of or in opposition to such a Bill

Advocate

28

Equivocal 27

Oppose 45

The Human Rights Act 1998 retain or repeal

6 Whether or not they favoured a UK Bill of Rights around 800 respondents expressed a view on whether we should retain or repeal the Human Rights Act The overwhelming majority of these ndash approximately 700 respondents (88) ndash were in favour of retaining the Human Rights Act In addition the Commission received around 140 pro forma responses to our first consultation and 1875 postcard responses to our second consultation all of which supported retention of the Human Rights Act but did not express a view on whether we need or should have a UK Bill of Rights

Repeal 12

Retain 88

Responses excluding postcards and pro-forma responses

Repeal4

Retain 96

Responses including postcards and pro-forma responses

7 Around 70 respondents expressed a view on alternatives to a UK Bill of Rights or the status quo Of those just under a half advocated amending the Human Rights Act and a quarter favoured reform of the Strasbourg Court andor the Convention

Advantages and disadvantages of a UK Bill of Rights

8 A variety of models were envisaged by both those who advocated and those who opposed a UK Bill of Rights In general terms six main outcomes were put forward in response to the Commissionrsquos consultations Many of these centered on what were seen as good or bad features of the Human Rights Act 1998 These outcomes were

1 the Human Rights Act should remain unchanged and continue to operate as at present (the status quo position) and no Bill of Rights should be introduced

2 the Human Rights Act should remain unchanged and continue to operate as at present but should be supplemented by a Bill of Rights for Northern Ireland (over which discussions are still ongoing)

6

3 the Human Rights Act should remain unchanged and continue to operate as at present but should be supplemented by a purely declaratory Bill of Rights (or a purely declaratory Bill of Rights and Responsibilities)

4 the Human Rights Act should be amended to include any of

a a modification of the terminology and statements of existing rights andor

b the addition of any qualifyinglimitingbalancing clauses andor

c the addition of certain responsibilities andor

d a modification of the courtsrsquo interpretive duties andor

e a modification of enforcement and other provisions

5 the Human Rights Act should be repealed and replaced by a new UK Bill of Rights which could

a restate Convention rights as currently stated in schedule 1 to the Human Rights Act andor adopt modified language andor

b restate Convention rights and add new rights andor

c restate Convention rights and add provisions that qualify or limit rights andor set out a balance between rights andor

d add new provisions on enforcement and related matters andor

e make provision for distinct chapters or separately enacted instruments for each of Northern Ireland Scotland and Wales and

6 the Human Rights Act should be repealed and a new entrenched Bill of Rights should be enacted as part of a new constitutional settlement

9 The summary below sets out the six main reasons cited by respondents who opposed such a Bill and the five main reasons cited by respondents in support of a UK Bill of Rights1 The reasons set out here relate to all of the

1Many respondents gave more than one reason for their view and we have included each respondentrsquos view in as many of the above categories as is applicable

7

envisaged models except (4) above which we discuss further below in this summary

Why did respondents oppose a UK Bill of Rights

10 The view most commonly expressed by opponents of a UK Bill of Rights ndash some 350 in total ndash was that the Human Rights Act was already a legally enforceable Bill of Rights and that it was working well2 As JUSTICE said to us in their response to our first consultation paper

ldquothe HRA 1998 satisfies the basic core criteria which characterise all bills of rights it represents a commitment to the human rights considered of particular importance to the UK it binds the government and can only be overridden with considerable difficulty It provides an essential means of redress for violations of rights within the UK It was described on its introduction as a lsquobill of rightsrsquo for the UKrdquo3

11 Another respondent wrote

ldquowe already have a UK Bill of Rights called the Human Rights Act which largely incorporated all the rights and freedoms of the European Convention There are no rights contained in the HRA which I would wish to see removed and would wish to emphasise this point in the strongest possible termsrdquo4

12 Some 95 respondents felt that even if the Human Rights Act had flaws a UK Bill of Rights was not the answer because the current debate in the view of some stemmed from a political motivation to dilute human rights protections andor to reduce the powers of the European Court of Human Rights As the British Institute of Human Rights wrote

ldquowe note that the Commission has been established against the backdrop of disagreement among the two parties in government over their position on the Human Rights Acthellip We note that neither the Coalition Agreement for Government nor the Commissionrsquos Terms of Reference even mention the HRAhellip We also note that it was ten months from the Agreement before the Commission was created and that its launch came quickly off the back of intense political and media hostility towards the HRAhellip

2This number does not encompass all those who supported the retention of the Human RightsAct as not all of those in favour of retention were opposed to aBill of Rights and not all expressed aview on whether they supported or opposed a Bill of Rights Analysis of the number of respondents to both consultations in favour of retaining the Human Rights Act can be found later in this paper 3Discussion Paper Response p 7 4Simon Ryder Discussion Paper Response p 1

8

hellipOn the face of it this Bill of Rights debate may seem like an opportunity to call for the legal protection of a broader range of rights beyond those in the Human Rights Act but we have serious reservations that this is not what is on the table and in fact that human rights may be weakened The focus on expanding the list of human rights which are protected may even (inadvertently) be at the expense of undermining the mechanisms for making those rights enforceablehellip This will be disastrous for all people especially the most vulnerable members of our societyrdquo5

13 Around 20 respondents drew on common law or other existing rights instruments ndash such as the Magna Carta ndash to suggest that a UK Bill of Rights was unnecessary or undesirable As one respondent to our first consultation wrote

ldquowe do not need a new Bill of Rights we have one already passed in 1689 This plus Magna Carta plus a long history of common law cases provided the basis of the democratic liberties we had in England and the UK until they were taken away without the consent of the people and were placed under the jurisdiction of the regulations of a foreign entity (EU) and the abstract theoretical lsquorightsrsquo of the European Human Rights legislationrdquo6

14 Around 30 respondents opposed to a UK Bill of Rights were concerned about possible legal or constitutional uncertainty that a Bill of Rights might entail Others viewed negatively its possible resource impact on the Government Parliament or the public sector particularly in the current economic climate

ldquoit is anticipated that Britainrsquos financial difficulties will last for many years and therefore we need to lsquocount the costrsquo of any new venture Has the government calculated the cost of training the numerous groups that will have to have a specialised knowledge of this proposed fundamental and important legislationrdquo7

ldquoAs practising lawyers the prospect of two human rights acts horrifies us We cannot see how that could possibly be in the public interestrdquo8

15 Around 50 respondents opposed a UK Bill of Rights on the basis that such a Bill would weaken the UKrsquos international standing As two respondents to our first consultation argued

5 Discussion Paper Response pp 4‐5 6Laurence Hughes Discussion Paper Response 7Peter Denison Discussion Paper Response 8Neil Farris Brian Garrett and Ciaran McAteer Consultation Paper Response p 8

9

ldquothere is a risk that by establishing a UK Bill of Rights the Government would undermine the integrity of the Council of Europe thereby reducing protection for human rights in other countriesrdquo9

16 Some also pointed out that rights are universal and should not be stated in a lsquoBritishrsquo way

ldquoit is of greatest importance that human rights are upheld as universal for everyone and not contingent upon the ambits of power or sometimes fickle public opinionrdquo10

17 Finally some respondents in particular those in Northern Ireland and Scotland were concerned that any attempt to introduce a Bill of Rights at this time could have adverse constitutional and political consequences for the UK particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland or if it were undertaken without regard to the implications of the independence debate in Scotland As the Scottish Human Rights Commission said to us

ldquothe current political climate presents singularly unfavourable conditions in which to launch a consultation on a UK Bill of Rights and [the Scottish Human Rights Commission] proposes alternative steps which are more likely to lead to progressive rather than retrogressive outcomes for the publicrdquo11

18 Similarly the Faculty of Advocates in Scotland in their response to our Consultation Paper stated

ldquogiven the impending [Scottish independence referendum] in 2014 it may be that matters are in such state of flux as to render the development of a UK Bill of Rights at this time neither appropriate nor desirablerdquo12

19 For many in Northern Ireland express or implied opposition to a UK Bill of Rights was based in part on concerns that such an instrument ndash depending on its contents ndash had the potential to affect negatively any progress made to date on a Northern Ireland Bill of Rights andor would lead to a diminution in rights protection contrary to the BelfastGood Friday Agreement For example the Human Rights Consortium said

ldquofirstly we would be totally opposed to a UK [Bill of Rights] if its discussionpassage were to be used as an excuse not to proceed

9Amy Salsbury Discussion Paper Response 10Ralph Sheeran Discussion Paper Response 11 Discussion Paper Response p 1 12 Consultation Paper Response p 9

10

with a distinct Northern Ireland Bill of Rights A specific [Northern Ireland Bill of Rights] was provided for as part of the BelfastGood Friday Agreement and subsequent opinion polls confirm that it is supported by the majority of people on both sides of the community in Northern Ireland Secondly we also fear that a [UK Bill of Rights] could be used as an excuse to undermine or replace the Human Rights Act itself with the very real risk that the people of Northern Ireland will have less rather than more human rights protections post-conflictrdquo13

20 These views were echoed by many in Northern Ireland

Views in favour of a UK Bill of Rights

21 Of the 270 respondents who expressly advocated a UK Bill of Rights or expressed conditional support for one some 140 respondents viewed such a Bill as an opportunity to adopt additional rights supplementary to those set forth in the Human Rights Act14

ldquoThe Bill presents an opportunity to revise the rules on how evidence can be used in criminal investigations and in court In particular the Bill should set in place a system which ensures that no person can be convicted of a crime when they are not aware of the evidence or the charge against them and given an opportunity to challenge itrdquo15

ldquoThe Bill of Rights represents an important opportunity to establish childrenrsquos rights as set out in the UN Convention on the Rights of the Child (CRC) at a constitutional level in the UK and to consolidate childrenrsquos rights standards in one binding and enforceable document At the same time it can give legal effect in UK law to the CRC by incorporating itrdquo16

22 Indeed for some their support for a UK Bill of Rights appeared to be based upon it including or on the presumption that it would include additional rights

ldquoThe Royal College of Psychiatrists (hereafter lsquothe Collegersquo) is in favour of the creation of a UK Bill of Rights that incorporates and builds on the obligations of the European Convention on Human

13Consultation Paper Response p 1 14Other respondents were in favour of additional rights but did not expressly advocate aBill of Rights because it might make possible the inclusion of such rights Indeed many respondents in favour of the incorporation of additional rights into UK law were opposed toa Bill of Rights We did not include these respondents in our analysis here but their views are discussed elsewhere in this paper 15Adrian Sanders MP Discussion Paper Response p 3 16UNICEF Discussion PaperResponse p 2

11

Rights ensures that those rights continue to be enshrined in UK law and protects and extends individual libertiesrdquo17

23 We provide more detail as to the categories of additional rights advocated by respondents later in this paper

24 Some 50 respondents urged that a UK Bill of Rights was needed to replace the Human Rights Act either because the Act was negatively perceived ndash regardless of whether that perception was informed or justified ndash or because they believed that the Human Rights Act was leading to perverse outcomes For example Charlie Elphicke MP wrote in response to our second consultation

ldquothere must be a new Bill of Rights that replaces the Human Rights Act The primary change this Bill must help to make is to place human rights law back under the effective control of Parliament as the elected accountable legislature of our nation state Only by restoring Parliamentary democracy in this area can we stop the British people being forced to live with those judicial interpretations of human rights that strike the great majority as absurd and unjust This is corroding respect for human rights and leading to a loss of faith in the democratic systemrdquo18

25 Other respondents to our first consultation stated

ldquoI feel that the balance on rights in this country has swung too far to the persistent and vocal minority sometimes violating the rights of the great majority of people as a consequence with too much weight being given to the person or body making a rights submission to courtrdquo19

ldquo[A UK Bill of Rights] should ensure the rights of those of us living in this country and not offer unwarranted protection to those visitors to these islands who break our laws and defy our way of life or use us to gain benefits which they have not earned or deservedrdquo20

26 Some 25 respondents who favoured a UK Bill of Rights thought that such an instrument would allow for greater domestic lsquoownershiprsquo of rights with the result that human rights would be perceived as less lsquoforeignrsquo One respondent submitted to our first consultation that

ldquoI feel very much that we do need a UK Bill of Rights At the moment the definition of how the European Convention should be

17Discussion Paper Response p 2 18Consultation Paper Response p 1 19Ben Biggin Discussion PaperResponse p 1 20Brian Sowerby Discussion Paper Response

12

applied in the UK is abrogated to the European Court This means that effectively laws and interpretations about English and Scottish law are being made by an unelected and unaccountable body that has scant regard for UK law and practice and has an overarching interest in forcing an equal interpretation in all the European Sovereign countrieshellip I would wish to see attention given to how we safeguard the rights of existing citizens of the UK against pseudo-rights coming from Europe and elsewhererdquo21

27 A related argument was that a UK Bill of Rights would provide an opportunity to express rights in language that better reflected our domestic heritage The UK Independence Party wrote in response to our first consultation that

ldquoA new British Bill of Rights should be couched in language which reflects the long history of the affirmation of rights in the UK going back to The Great Charterhellip Since the Rights confirmed to the people of the United Kingdom are to be incorporated in this document it should be one which by its language inspires the reader and fully reflect the vital importance of the freedoms contained therein to our people Use of such language can help inspire confidence in the document and can nonetheless be easily readrdquo 22

28 Some 25 respondents supported a UK Bill of Rights because they felt it would have enhanced status or important symbolic value Respondents in this category included those who advocated a written constitution those who felt that such a Bill would provide greater certainty about rights than other law and those who felt that such a Bill would bring social benefits ndash such as a unifying effect on the United Kingdom as a whole For example the Family Law Society wrote in response to our second consultation that

ldquowe agree strongly that the UK needs a Bill of Rights The Bill of Rights should be comprehensive and serve as the written constitution for the UK While our primary focus is to ensure family rights and protections are constitutionally enshrined we feel there are broader issues of lsquosocial compactrsquo that must be addressedhellip rdquo23

29 lsquoUnlock Democracyrsquo who organised a campaign in response to our first consultation in favour of a Bill of Rights being drawn up by an open and inclusive process involving maximum public participation argued that

ldquowe take the view that a Bill of Rights must be far more than a legal document It should be there to express the identity of our society

21David R Lewis Discussion Paper Response p 1 22Discussion Paper Response p 2 23Consultation Paper Response p 1

13

to lay down the basic principles of British democracy to reflect and protect the nationrsquos traditions of freedom and libertyrdquo24

30 In addition some 10 respondents were in favour of a UK Bill of Rights primarily because they felt it would be an opportunity to better link rights to responsibilities25 As one respondent to our Discussion Paper stated

ldquoI strongly support the provision of a responsibility section within the Bill of Rights as a quid pro quo Eg you have these rights but in doing so you accept them with equal responsibility Of course they should be broad and not prescriptive ndash but there needs to be something in the legal system to try and cut down on abuses of well meaning and important rights There is too much attached to individual rights at the expensive of the collective without reference to responsibilityrdquo26

24Discussion Paper Response p 4 25Other respondents were in favour of linking rights to responsibilities but did not expressly advocate aBill of Rights because it would make such linkage possible We did not include these respondents in our analysis but we analyse respondentsrsquo general positions on linking rights to responsibilities later in this paper 26Ben Biggin Discussion PaperResponse p 3

14

Alternatives to a UK Bill of Rights or to the current system

31 We asked respondents to our second consultation for their views on alternatives ndash either to a UK Bill of Rights or to the status quo ndash that the Commission might consider Approximately 70 respondents to our two consultation papers expressed a view on possible alternatives to a UK Bill of Rights

32 Just over half of these advocated amending the Human Rights Act as an alternative to a UK Bill of Rights or the status quo Some respondents desired reform of the mechanisms of the Human Rights Act such as clarification of the requirement that judges lsquotake into accountrsquo Strasbourg case law Some preferred amendment as a way to incorporate additional human rights protections into domestic law For example the Law Society of England and Wales said in response to our first consultation that

ldquothe Law Society recommends that The Human Rights Act 1998 should be retained and should be accompanied by a programme of public education outreach and debate to enhance understanding and legitimacy Additional rights can be added by amendment to the HRA but no rights should be diluted or taken awayrdquo27

33 The UK Publishersrsquo Association stated that

ldquowe believe very strongly that if anything existing Human Rights need clarifying and ndash if necessary ndash strengthening rather than replacing with new legislation or codification It is certainly the case that publishers would welcome any strengthening of Article 101 on Freedom of Expression (subject as it is at present to the conditions and qualifications in 102)rdquo28

34 Approximately one quarter proposed that the UK should work with the Council of Europe to reform the Strasbourg Court andor the Convention as an alternative to enacting a UK Bill of Rights or maintaining the status quo The remainder advocated repealing the Human Rights Act without adopting a UK Bill of Rights or issuing guidance to the judiciary on the interpretation of the Human Rights Act

27Discussion Paper Response p 1 28Discussion Paper Response p 1

15


35 As noted above regardless of their views on a UK Bill of Rights around 800 respondents expressed a view on whether we should retain or repeal the Human Rights Act The overwhelming majority ndash approximately 700 respondents ndash wanted to retain the Human Rights Act In addition the Commission received around 140 pro-forma responses to our first consultation and 1875 postcard responses to our second consultation in connection with organised campaigns all of which supported retention of the Human Rights Act but did not express a view on whether we need or should have a UK Bill of Rights

36 The principal groups involved in organising these campaigns were the British Institute of Human Rights the Northern Ireland Human Rights Consortium Liberty and Unlock Democracy

631 individuals signed postcards to the Commission that had been prepared by the British Institute of Human Rights in response to the Commissionrsquos second consultation These stated that ldquoI want to tell you to keep the Human Rights Act The Human Rights Act is a vital safety net that protects us all and especially at times of vulnerability The Human Rights Act is about who we are and our values Please donrsquot let your actions take away our rights and freedomsrdquo

at least 50 individuals wrote to the Commission in terms suggested by the British Institute of Human Rights in response to the first consultation These responses asked the Commission to ldquoensure that the Human Rights Act remains intactrdquo

1244 individuals signed postcards which were prepared by and sent to the Commission by the Northern Ireland Human Rights Consortium Although a number of respondents included additional comments all of these postcards stated that ldquothe NI debate takes as its starting point the existence of the Human Rights Act (since this puts into practical effect the European Convention) and this Act should if anything be added to not amended it must not be weakenedrdquo

at least 40 respondents wrote to the Commission in terms urged by Liberty in response to the first consultation These individuals wrote ldquowe have a Bill of Rights and itrsquos called the Human Rights Actrdquo and

at least 50 respondents wrote to the Commission in terms urged by Unlock Democracy in response to the first consultation These

16

individuals wrote ldquobuild on the existing Human Rights Act and guarantee the rights of everyone living in the United Kingdomrdquo

17

Incorporation of the European Convention on Human Rights

37 One of the principal effects of the Human Rights Act was that it lsquoincorporatedrsquo into domestic law or gave domestic effect to the rights contained in the European Convention on Human Rights This meant that individuals could for the first time bring claims in domestic courts for alleged breaches of their Convention rights Prior to the Act coming into force individuals could only seek remedies in the European Court of Human Rights for breaches of their Convention rights In our second consultation we asked

Question 2 In considering the arguments for and against a UK Bill of Rights to what extent do you believe that the European Convention on Human Rights should or should not remain incorporated into our domestic law

38 Many respondents to both our consultations told us whether they viewed the European Convention on Human Rights and the rights it contains positively or negatively but did not directly address the question of whether the Convention rights should remain incorporated

39 As already noted the Commission received a large number of submissions in support of retaining the Human Rights Act 1998 including around 700 respondents to our two consultation papers and an additional 1875 postcards and around 140 pro-forma responses on this issue Though we have recorded these views on the Human Rights Act in another part of this paper we have included responses and postcards in the analysis of the question of continued incorporation only where respondents were clear that they supported retention of the Human Rights Act because it incorporates the Convention into domestic law We have included respondents who sent a postcard in connection with the campaign by the Northern Ireland Human Rights Consortium because the text of those postcards expressed support for the Human Rights Act for the reason that it ldquoputs into practical effect the European Conventionrdquo We have not included all of the 631 respondents who sent postcards in connection with the campaign by the British Institute of Human Rights unless they also expressed views on the issue The text of the BIHR postcards stated that the Human Rights Act is ldquoabout who we are and our valuesrdquo and ldquoa vital safety net that protects us all especially at times of vulnerabilityrdquo but did not explicitly address the issue of incorporation

40 Around 1450 respondents to both consultations addressed this issue including 1244 individuals who sent the Commission postcard responses

41 Some 1415 respondents supported the continued incorporation of the Convention into domestic law A few of those who addressed the question were opposed to the continued incorporation of the Convention

18

Were respondents in favour of the continued incorporation of the European Convention on Human Rights into domestic law

No 2

Yes 98

Why did respondents favour continued incorporation

42 Not all respondents gave reasons for their views Many were concerned that lsquode-incorporationrsquo of the Convention rights would have a negative impact on the enforceability of human rights protections in the United Kingdom Some respondents pointed out that if Convention rights could only be asserted in Strasbourg the cost of litigation would be prohibitive for many people For example one respondent stated

ldquoifhellip Convention rights could only be asserted in Strasbourghellip the only claimants who would be able to assert those rights would be institutional litigants the very rich or those who were legally aidedrdquo29

43 In addition in the light of the backlog of cases in the European Court it was stated that de-incorporation would mean that adjudication of Convention rights would meet with even longer delays As Professor Francesca Klug and Amy Ruth Williams said in their response to our second consultation

ldquoif the link with the European Convention on Human Rights is entirely broken in any new UK Bill of Rightshellip it would almost certainly result in more cases being decided by the European Court in Strasbourg thereby thwarting efforts being made at an

29Frank Cranmer Consultation Paper Response p 2

19

international level to reduce the courtrsquos backlog and reducing the influence of UK judges on ECHR jurisprudencerdquo30

44 One respondent said

ldquobefore the Human Rights Act was passedhellip claimants had to fight their case all the way to the top of an ECHR-deaf system only to take their case to Strasbourg and be told years later that they should have won at the start This is clearly madness and justice delayed is justice denied David Cameron says he doesnrsquot want British cases decided in Strasbourg So keep human rights at homerdquo31

45 Other respondents were concerned that creating a Bill of Rights separate from the Convention would cause confusion in interpreting human rights law in the UK and with it increased litigation costs Some felt that de-incorporation would send a negative message to Council of Europe members overseas and to other nations concerning Britainrsquos commitment to human rights It was also felt that de-incorporation could entail the loss of valuable dialogue between UK courts and Strasbourg which has arisen following from the Human Rights Act As Liberty wrote in response to our first consultation

ldquojust as the HRA strikes a balance between protecting parliamentary sovereignty and the judicial protection of rights and freedoms so too has it allowed for the development of human rights jurisprudence by our domestic courts while still ensuring that the UK complies with its international obligations The incorporation mechanism adopted by the HRA requires domestic courts to take account of ndash and not be bound by ndash European Court of Human Rights case law Accordingly the Act has not only allowed for greater appreciation in Strasbourg of British judgements it has encouraged dialogue disagreement and the development of British human rights principleshellip The HRA hashellip fundamentally strengthened the lsquomargin of appreciationrsquo afforded to the UK by the Courthellip HRA incorporation mechanisms have led to the protection not the denigration of parliamentary decision making It is difficult to see how any new lsquoBritish Bill of Rightsrsquo could provide any advances on the HRA in this respectrdquo32

46 Some respondents also expressed the view that de-incorporation would represent a violation of the UKrsquos commitment under the BelfastGood Friday Agreement to incorporate the European Convention on Human Rights into

30Consultation Paper Response p 1 31Tim MacDonald Consultation Paper Response additional text on a postcard sent to the Commission as part of a campaign organised by the British Institute of Human Rights 32Discussion Paper Response p 39

20

Northern Ireland law For example the Northern Ireland Human Rights Consortium said in response to our second consultation that

ldquowe would also point out that the ECHR and its enactment into domestic legislation formed one of the central human rights protections for Northern Ireland committed to by the British Government under the BelfastGood Friday Agreement [which states that] lsquothe British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR) with direct access to the courts and remedies for breach of the Convention including power for the courts to overrule Assembly legislation on grounds of inconsistencyrsquo To lose this domestic level of protection of ECHR rights would therefore represent a serious violation of the international treaty that is the BelfastGood Friday Agreementrdquo33

Why did respondents oppose continued incorporation

47 The small number of respondents who were opposed to continued incorporation of the Convention thought that the Human Rights Act had eroded national sovereignty by obliging the courts to take into account Strasbourg jurisprudence A few respondents expressed an explicit preference to return to the pre-Human Rights Act position because in their view it gave Parliament greater freedom to ignore decisions of the Strasbourg Court with which it disagreed Other respondents thought that the Human Rights Act caused an undesirable shift in favour of the judiciary and away from the executive andor Parliament As three respondents to our second consultation stated

ldquothe ECHR should not be incorporated into our domestic law There is no need for the UK with its highly developed judicial system to refer to an external Convention to provide such rights as are necessary to maintain a wholesome British society There is even less need to refer to an external court if a UK Bill of Rights is enacted because that Act will itself incorporate the key elements without the need [for] a Conventionrdquo34

ldquoI believe that the United Kingdom shouldhellip return to the position prior to the Human Rights Act 1998 The human rights agenda is simply a political agenda with little connection to any fundamental rightshellip If I had thought that within 7 years I would be arguing for the right of a Christian to wear a Cross at British Airways (that permitted the hijab turban and Siska) I would not have believed it and if I had said it back in 1998 it would not have been believed

33Consultation Paper Response p 2 34Fred Silvester Consultation PaperResponse pp 1‐2

21

Eweida v British Airwayshellip Have the strength of your convictions and common sense and abandon this failed projectrdquo35

ldquoThe supremacy of the ECHR over any political institution means that a British Bill of Rights is ineffective redundant and automatically superseded by the European Convention If the UK continues to bind itself to the ECHR there is no point to this Commissionrsquos exercise to produce a British Bill of Rightshellip a decision has to be made between the ECHR or a British Bill of Rightsrdquo36

48 A small number of respondents to the Consultation Paper stated that they considered it to be outside the terms of reference of the Commission to pose a question relating to whether the Convention should remain incorporated into domestic law For example Stephen Hockman QC stated that

ldquoI would respectfully draw the Commissionrsquos attention to its terms of reference which mandate the Commission to investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the ECHR and ensures these rights continue to be enshrined in UK law I hope the Commission will not seek to make recommendations which are inconsistent with its own terms of reference which would surely nullify its work ab initiordquo 37

49 The Scottish Human Rights Commission and Northern Ireland Human Rights Commission made the same point

ldquothe Scottish Human Rights Commission understands that the Commissionrsquos terms of reference explicitly exclude this type of question from the Commissionrsquos remitrdquo38

ldquoThe Northern Ireland Human Rights Commission is concerned that this particular question appears to be outwith the mandate of the Commission which as stated in its terms of reference was to investigate the lsquocreation 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 libertiesrdquo39

50 A few respondents also objected to the question on the basis that they did not view the Convention as lsquoincorporatedrsquo into domestic law at present They pointed out that the Human Rights Act gave lsquofurther effectrsquo to Convention

35Paul Diamond Discussion Paper Response 36Andrew Smith Discussion PaperResponse p 2 37Consultation Paper Response p 1 Emphasis in original 38 Consultation Paper Response p 4 39Consultation Paper Response p 4

22

rights in UK law but that this was not the same as making the Convention part of domestic law They argued that courts were still free to depart from Strasbourg rulings with which they disagreed ndash and so as a matter of domestic law the UK was not bound by the Convention in the way that it would have been if Convention jurisprudence was given direct effect in UK law

23

If there were to be a UK Bill of Rights should it replace or sit alongside the Human Rights Act 1998

51 In our second consultation we asked respondents

Question 3 If there were to be a UK Bill of Rights should it replace or sit alongside the Human Rights Act 1998

52 Some respondents to our first consultation also addressed this issue even though we posed no specific question in relation to it Altogether some 170 respondents across our two consultation papers answered this question Of those who responded some 90 respondents thought that a UK Bill of Rights should sit alongside the Human Rights Act some 60 respondents thought that a UK Bill of Rights should replace the Human Rights Act and some 20 were equivocal meaning that they set out considerations in relation to both positions without stating an explicit preference for one or the other Not all respondents who expressed a view on this question were in favour of a Bill of Rights and some were responding only against the contingency that such an instrument might be introduced


12

35

53

Replace

Sit alongside

Equivocal

Why did respondents favour any new Bill of Rights sitting alongside the Human Rights Act

53 Those in favour of any UK Bill of Rights sitting alongside the Human Rights Act expressed the view that the Act was working well For example the Darlington Association for Disability said

24

ldquoif the aim is to strengthen the protection of rights there is no need to scrap or weaken the Human Rights Acthellip New laws such as a Bill of Rights can be enacted and live alongside the HRA Any consideration of additional rights by the Commission should be about building on not undermining the rights and mechanisms of the HRArdquo40

Why did respondents favour any new UK Bill of Rights replacing the Human Rights Act

54 Many of those who thought that any UK Bill of Rights should replace the Human Rights Act cited negative perceptions of the 1998 Act or of the European Convention on Human Rights For example Ulster Human Rights Watch stated in response to our second consultation that

ldquoif a comprehensive UK Bill of Rights was created it should be associated with the denunciation of the European Convention In this case the Human Rights Act 1998 would no longer be required This will allow the United Kingdom to develop its own interpretation of rights and fundamental freedoms on the basis of its Judeo-Christian heritage without interference from the European Court of Human Rightsrdquo41

55 Others expressed concerns about the confusion associated with having two different Acts For example practising lawyers Neil Farris Brian Garrett and Ciaran McAteer said in their joint response to our second consultation that

ldquoas practising lawyers the prospect of two human rights acts horrifies us We cannot see how that could possibly be in the public interest However should it be democratically decided by Parliament that a UK Bill of Rights should be enacted we see no alternative but that it should encompass the Human Rights Act Hopefully in such a scenario the provisions of the Human Rights Act would be retained in the new legislation but this is not to be taken as in any way support for repeal of the Human Rights Actrdquo42

40 Discussion Paper Response p 1 41Consultation Paper Response p 4 42Consultation Paper Response p 9

25

Expressing rights differently

56 At the moment the rights in the Human Rights Act 1998 are written in identical words to those used in the European Convention on Human Rights If there were to be a UK Bill of Rights there is a question about whether the rights in it should still be written in these words in order for example to avoid confusion and legal uncertainty or whether the rights should be written in language that better reflects their UK constitutional heritage andor changes in our society since the original European Convention was drafted in the late 1940s In our Consultation Paper we asked for views on this question including on what the advantages or disadvantages would be to expressing our rights differently in a UK Bill of Rights

Question 4 Should the rights and freedoms in any UK Bill of Rights be expressed in the same or different language from that currently used in the Human Rights Act and the European Convention on Human Rights If different in what ways should the rights and freedoms be differently expressed

Question 5 What advantages or disadvantages do you think there would be if any if the rights and freedoms in any UK Bill of Rights were expressed in different language from that used in the European Convention on Human Rights and the Human Rights Act 1998

57 Even though we did not ask this question in our Discussion Paper approximately 100 respondents to our two consultations addressed these questions Over two thirds of these were opposed to expressing rights in language that differed from that currently used in the European Convention on Human Rights and the Human Rights Act less than a quarter of those expressing a view supported doing so and the remainder were either equivocal or unclear on the matter

Expressing rights in the same language

58 The predominant reasons given by the majority in support of expressing rights in the same language were that the current system was working well and in particular that changing rights would cause confusion and legal uncertainty

59 Many urged that there would be a risk that divergent interpretations of our fundamental rights would emerge since courts would be called upon to interpret different language and different provisions relating to the same or similar underlying core rights For example John Hemming MP wrote

ldquothere are real difficulties in drafting any new terms as the interpretation is not clearhellipthe arguments about what the meaning

26

of the words are would rack up massive [legal] costs The disadvantages would be to legal certainty as people wouldnrsquot have any real clarityrdquo43

60 Sir Geoffrey Bindman QC wrote

ldquothere is no point in duplicating or replacing the Human Rights ActhellipIt would be a recipe for chaosrdquo44

61 The National LGBampT Partnership cited the lsquoexcessive and unnecessary litigationrsquo that could result

ldquoit is crucial that any legal protections for human rights use the same language and terminology as that used in the European Convention on Human Rights The HRA was drafted in this way for the deliberate and very good reason that to do otherwise would risk confusion and excessive and unnecessary litigation in the courts which would be both costly and wastefulrdquo45

62 A small number of respondents argued that there was in particular a risk of divergence between the Strasbourg courtrsquos interpretations of the European Convention rights and the interpretations by domestic courts of the rights in a UK Bill of Rights For example Thompsons Solicitors wrote

ldquousing different language would also introduce the very real prospect of inconsistency between the content of the UK Bill of Rights and the interpretation of the European Convention by the Strasbourg courtrdquo46

63 The other major reason cited by respondents was that the real way to engage individuals in the UK in their human rights and to make legal instruments more meaningful to them was not by changing the language to reflect UK heritage and culture Rather it was through better education and public awareness of rights For example Imkaan wrote to us

ldquowe also question the nature of evidence the Commission of Human Rights has referred to which supports the position that rewriting the existing rights would make any difference If anything resources would be needed to explain the new wording which we believe would be better used on public education to better understand their rights and the HRArdquo47

43Consultation Paper Response pp 2‐3 44Consultation Paper Response p1 45Consultation Paper Response p 3 46Consultation Paper Response p 3 47Consultation Paper Response p 4

27


64 The respondents who advocated expressing rights in language that differed from the Convention and the Human Rights Act generally cited the view that the language of our fundamental rights should reflect the UKrsquos history its culture and its values in the modern era

ldquoA new British Bill of Rights should be couched in language which reflects the long history of the affirmation of rights in the UK going back to The Great Charterrdquo48

ldquoThe terms used should reflect the principles and concepts that have been developed in common law and in line with those used in former British bills of rights and declarationshellipThe advantage of using terms that are in line with British principles and concepts developed through common law is that of promoting its own interpretation of the rights and freedoms based on its unique and exemplary history tradition and Judeo-Christian heritagerdquo49

ldquoSome of these rights should be reworded or defined to emphasise their fundamental nature or matters which reflect our own circumstances For instance article 8 might be reworded to emphasise the need to balance press freedom with the right to respect for private life or alternatively to permit interferences in family or private life so long as they are in accordance with law without the additional proportionality requirements which have tended to introduce uncertainty as to how the article will be applied in any particular caserdquo50

65 Some respondents also believed that the language of rights should be simplified For example

ldquothe likelihood is that expressing the rights and freedoms in a more straightforward way would satisfy those who are presently sceptical This could be done by giving more detail either in the BOR or in guidelines attached to it of the way the BOR should be implementedrdquo51

ldquoSome of the language in the HRA and ECHR could be simplified and updatedrdquo52

48UK Independence Party Consultation Paper Response p 2 49Ulster Human Rights Watch Consultation Paper Response p 5 50Society of Conservative Lawyers Discussion Paper Response p 5 51Professor Chris Lewis Consultation Paper Response p 2 52Jean Hart Consultation Paper Response p 1

28

ldquoClarity and transparency are essential so perhaps the language should be different Too much detail is hidden beneath a cloak of legal jargonrdquo53

53Rita Bobbin Consultation Paper Response p 2

29

Additional rights

Introduction

66 Our terms of reference required us to investigate the creation of a UK Bill of Rights that incorporates and builds on the UKrsquos obligations under the European Convention on Human Rights as well as seeking to protect and extend our liberties In our first consultation we asked

Question 3 What do you think a UK Bill of Rights should contain

67 Many people argued in our first consultation that a UK Bill of Rights should contain rights additional to those set out in the Human Rights Act Others suggested that the rights set out in that Act already placed a considerable practical and financial burden on public authorities and that any additional rights would simply increase that burden Against that background we asked the following questions in our second consultation

Question 6 Do you think any UK Bill of Rights should include additional rights and if so which Do you have views on the possible wording of such additional rights as you believe should be included in any UK Bill of Rights

Question 7 What in your view would be the advantages disadvantages or challenges of the inclusion of such additional rights

68 A little over 300 respondents to both consultation papers expressed a view on the inclusion of additional rights in a UK Bill of Rights

69 Approximately 260 of those who discussed the issue advocated the inclusion of additional rights (either a specific right(s) or additional rights in general) whilst just over 20 were opposed to their inclusion The remainder did not express a clear view

30

6 7

Advocate Additional Rights Oppose Additional Rights equivocal or unclear

87

70 It is important to recognise however that approximately 60 of those respondents who advocated additional rights were either opposed to equivocal or unclear about the need or desirability of a Bill of Rights in principle and were therefore responding on the issue of additional rights only against the contingency that such a Bill nevertheless went ahead The view expressed by the Commissionrsquos Advisory Panel Members from Wales Reverend Aled Edwards and Clive Lewis QC whilst being made in reference solely to the views of those in Wales is representative of many other responses we received

ldquothere was no real evidence of any significant call for the creation of a UK Bill of Rights in order to extend rights ndash rather a fair reflection of the evidence was that if a UK Bill of Rights were to be created then the opportunity could be taken to expand the rights recognisedrdquo54

Why did respondents favour the inclusion of additional rights

71 Approximately 180 of those advocating the inclusion of additional rights submitted that a UK Bill of Rights should include one or more specific right or category of rights that did not currently enjoy sufficient protection For example UNISON argued that

ldquoin the area of criminal procedure many rights well-established and indeed constitutional rights in similar jurisdictions are missing or ill-defined in the UK (for example rights in detention right to counsel right to be free from unlawful search and seizure)rdquo55

72 The charity Menter made similar comments in relation to childrenrsquos rights

54Consultation Paper Response p 2 55Consultation paper Response p 5

31

ldquoI would be interested in a UK Bill of Rights that included additional rights or further clarification on present rightshellip I would be particularly interested in additional rights for children (this is a huge lack)rdquo56

73 Others argued for the incorporation of rights in international treaties which the UK had ratified and which would thereby become enforceable in domestic law Some respondents in this category referred generally to international instruments such as the Northern Ireland Human Rights Consortium who stated that

ldquothe Human Rights Act contains only a fraction of the rights to which the UK is subscribed under European and International human rights law There are many more rights that people in the UK cannot easily enforce despite various treaty obligations Any UK Bill of Rights should therefore take the Human Rights Act as a minimum and could add to it the existing human rights obligations which the UK is party to including the full incorporation of the ECHR and all international treaty obligationsrdquo57

74 Others cited specific instruments We discuss these further below

Why did respondents oppose the inclusion of additional rights

75 Those who opposed the inclusion of additional rights did so for a variety of reasons Additionally some respondents who advocated or were equivocal on the inclusion of additional rights also highlighted disadvantages and challenges to the inclusion of additional rights The most common argument was that existing rights protection is sufficient For example the law firm Hodge Jones and Allen made this assertion and went on to state that

ldquofor example the rights of children and the right to equality are protected by specific statutes The Childrenrsquos Act 1989 and Equality Act 2010 already set out duties on public authorities and other service providers (a wider extent than the HRA) It is not clear what their inclusion in a UK Bill of Rights would achieve other than a reshystatement of the statutory protection already in placerdquo58

76 Some respondents thought that the practical difficulties of including additional rights presented a considerable challenge to their inclusion in any Bill of Rights For example Fred Silvester argued that

56Consultation Paper Response p 2 57Consultation Paper Response p 3 58Consultation Paper Response p 3

32

ldquothe practical difficulty of producing such changes will lead to a procedural quagmire or an attempt to drive legislation through in a most illiberal mannerrdquo59

77 Others believed that additional rights protection was desirable or might be desirable but that this should be achieved by means other than through a UK Bill of Rights The Equality and Diversity Forum believed that

ldquothe realisation of additional rights could and should be done through a range of mechanisms other than introducing a new Bill of Rights which would be confusing and unnecessaryrdquo60

78 Others such as Training for Women Network Ltd were wary of the political motives behind the inclusion of additional rights

ldquothe disadvantage ndash a very serious one ndash is that the development of such additional rights could be used as another political smokescreen to undermine the existing protections already existing in the HRArdquo61

79 Others highlighted difficulties regarding the ceding of further power to the judiciary For example Professor Francesca Klug and Amy Ruth Williams noted that

ldquogiven the current hostility to judicial determination of rights issues in some quartershellip it is important to highlight that more rights would mean increased judicial involvementrdquo62

80 Others like Brian Riches believed that the cost of including additional rights would be a disadvantage

ldquothe inclusion of additional rights poses major problems The main one being cost Who is to pay for the administration of these additional rights Who is to pay if it is thought necessary to resort to legal action Who is to pay any compensationrdquo63

59Consultation Paper Response p 4 60Consultation Paper Response p 4 61Consultation Paper Response p 3 62Consultation Paper Response p 6 63Consultation Paper Response p 2

33

Socio-econom

icR

ights International Instrum

ents Trial by

Jury

Crim

inal andC

ivil Justice C

hildrensR

ights R

ight toEquality

Environm

ental Rights

Adm

inistrativeJustice

Victim

s Rights

MinorityV

ulnerableG

roups

Other R

ights

Which rights did respondents advocate or oppose

0

40

80

120 R

es

po

nd

en

ts

Number advocating righttype of rights Number opposing righttype of rights

Number equivocal on righttype of rights

Socio-Economic Rights

81 Socio-economic rights were by far the most commonly advocated right or category of rights with almost 100 respondents advocating their inclusion Some ten respondents opposed the inclusion of such rights whilst approximately 20 people came to no clear view on whether they should be included

82 Those who wished to see socio-economic rights in a UK Bill of Rights generally argued that the distinction between civil and political rights and socio-economic rights was an artificial one and that in fact the two were intrinsically linked A number of respondents argued that a UK Bill of Rights should include socio-economic rights in order to fulfil the UKrsquos obligations under various treaties such as the International Covenant on Social Economic and Cultural Rights

83 Some respondents pointed to the examples of others bills of rights that included socio-economic rights such as those in India Ireland and South Africa that contained lsquodirective principlesrsquo or required the lsquoprogressive realisationrsquo of such rights rather than fully justiciable socio-economic rights Citing these examples a range of options for the inclusion of socio-economic rights were discussed from fully justiciable rights to directive principles or lsquoprogressive realisationrsquo to non-justiciable or aspirational provisions

34

84 Others argued that socio-economic rights did not have a place in a UK Bill of Rights largely on the basis that the adjudication of such rights necessarily required decisions regarding the allocation of public finances and that such decisions should not be matters for the courts For example the Residential Landlordsrsquo Association argued that

ldquohuman rights have no place in terms of the kind of socio economic fields referred to in the consultation generally speaking These matters should be decisions for the legislature not the courts They can involve delicate balancing exercises and indeed public views expressed through the ballot box They are not matters for unelected judges who cannot be removed from office in the way that politicians can berdquo64

A Right to Equality

85 Approximately 50 respondents advocated the inclusion of a right to equality while approximately 15 respondents opposed the inclusion of such a right

86 Those who argued in favour of a free-standing right to equality urged that Article 14 of the ECHR provided insufficient protection For example Age UK wrote

ldquoArticle 14 of the ECHR only guarantees non-discrimination in the enjoyment of Convention rights However a free-standing equality clause in a UK Bill of Rights could protect individuals against discrimination by public authorities and guarantee equal enjoyment of lsquoany right set forth by lawrsquordquo65

87 Others noted that the UK already had obligations under international instruments (such as Article 26 of the International Covenant on Civil and Political Rights) and urged that these should be incorporated through a freeshystanding equality right Others highlighted shortcomings in the Equality Act 2010 which they believed demonstrated the need for the inclusion of a right to equality

88 Those who argued in favour of inclusion of a free-standing right to equality generally pointed to the text of the right in Protocol 12 to the Convention which the UK has not yet ratified A small number of respondents also discussed possibilities for the protected grounds that could figure in a right to equality

89 Those arguing against the inclusion of a free-standing right to equality in a UK Bill of Rights generally urged that such protections were best or sufficiently dealt with by current equality legislation

64Consultation Paper Response p 6 65Discussion Paper Response para 98

35

Childrenrsquos Rights

90 Approximately 50 respondents advocated the inclusion of childrenrsquos rights and approximately 10 were expressly opposed

91 Those in favour generally thought that children in the UK did not currently enjoy sufficient rights protection and that this should be remedied by including provisions in a UK Bill of Rights that would incorporate some or all of the UKrsquos obligations under international instruments containing childrenrsquos rights such as the United Nations Convention on the Rights of the Child [UNCRC] Rights of the Child UK citing the UN Committee for the Rights of the Child strongly supported this view

ldquoit is now incontrovertible that children in the UK do not have sufficient rights protection When the UN Committee on the Rights of the Child last examined the implementation of the UNCRC in the UK it issued over 120 recommendations Tellingly it referred to lsquothe general climate of intolerance and negative public attitudes towards children especially adolescentsrsquo ndash something which the Vice-Chair of the UN Committee on the Rights of the Child later described as the first such observation for a European countryrdquo66

92 Some respondents including the Childrenrsquos Commissioner for Wales submitted that children were particularly vulnerable and argued that more specific rights relating to children were needed in the UK

ldquoas indicated in the Declaration of the Rights of the Child lsquothe child by reason of his physical and mental immaturity needs special safeguards and care including appropriate legal protection before as well as after birthrsquordquo67

93 Those who opposed the inclusion of childrenrsquos rights in any UK Bill of Rights did so in the main because they thought that childrenrsquos rights were or would be better addressed through ordinary legislation

Rights in Criminal and Civil Justice

94 Relatively few respondents discussed the possibility of additional rights in respect of criminal and civil justice being included in a UK Bill of Rights A little under 40 respondents advocated the inclusion of certain such rights and a very small number expressed some opposition

95 Some respondents argued generally that common lawstatutory rights in this category should be codified or that some overarching rights should be included

66Discussion Paper Response para 5 67Discussion Paper Response p 2

36

96 Respondents who opposed the inclusion of rights in respect of criminal and civil justice argued that these rights were already adequately enshrined in the common law and certain statutes An example of this line of argument was given by the Faculty of Advocates who stated that

ldquowe do not consider that the issues raised are at the level of fundamental rights There are existing common law (and statutory) protections designed to secure Art 5 rights and further particularisation of those along the lines suggested may be apt to create a disproportionate volume of additional and frequently unmeritorious litigationrdquo68

MinorityVulnerable Group Rights (not including Childrenrsquos Rights and Rights for Victims)

97 Approximately 30 respondents urged that a UK Bill of Rights should contain additional rights for other minorities and vulnerable groups In general they reasoned that certain groups such as women the elderly people with disabilities and ethnic minorities were not currently sufficiently protected For example the Royal Association for Disability Rights argued in favour of including disability rights on the basis that

ldquodisabled people in the UK experience human rights violations on a daily basis Countless disabled people are not confident to stay in their own home or to go out without fear for their safety and security Many disabled people are subject to actions and decisions that undermine their dignity in their daily livesrdquo69

98 Generally these respondents argued that a UK Bill of Rights could provide better protection for these groups if it incorporated UK obligations under international treaties such as the UN Principles for Older Persons or the UN Convention on the Elimination of Discrimination Against Women


99 Approximately 25 respondents advocated the inclusion of a right to trial by jury whilst a very small number expressed opposition

100 Those in favour cited the longstanding existence of the common law right to trial by jury in England and Wales and the importance that the right had in relation to the fairness and openness of criminal proceedings

101 Those opposed thought that existing common law and statutory provisions were sufficient Others such as the Faculty of Advocates pointed to the

68Consultation Paper Response para 16 69Discussion Paper Response p 2

37

differences in the use of juries between the different legal jurisdictions in the UK

ldquothe Commission will be aware that concern about the right to trial

by jury is an English peculiarity The Faculty are not aware of any complaints in Scotland by persons or groups who seek this right We do not consider this a fundamental right and in our view trial by jury does not have the historical purchase either as a matter of legal

70theory or political discourse in Scotland as it has in Englandrdquo

102 Some respondents (including both the advocates and the opponents of a right to trial by jury) expressed views concerning whether there should be exceptions to the right in certain cases (eg ldquoin serious casesrdquo or ldquoin complex fraud casesrdquo)

Rights for Victims

103 Approximately 25 respondents advocated the inclusion of rights for victims whilst some 15 opposed the inclusion of such a right

104 Those in favour generally thought that the current human rights system provided too much protection for criminals and that the rights of victims were being ignored For example one respondent wrote

ldquothe existing legislation takes insufficient account of the rights of others eg in considering the rights of a criminal no account is paid to the rights of his victimsrdquo71

105 Others mentioned specific rights such as the right to have any crime investigated by the state or a right to emotional support and argued in favour of these

106 There were a number of reasons expressed for opposing such rights Some such as the University of East London expressed concern that the inclusion of such rights could be based on misconceptions about current rights protections

ldquowe express some reservations at the suggestion (at paragraph 44) that there should be specific provision for the rights of victims of crime in a UK Bill of Rights There is undoubtedly a perception that there is an imbalance in current rights protections towards offenders rather than their victims amongst those who criticize the Human Rights Act as a criminalrsquos charter It is important that decisions as to the creation of additional rights are not made on the basis of such false perceptions and where necessary these

70Consultation Paper Response p 5 71Richard Frost Discussion PaperResponse p 1

38

concerns must be addressed through education and declaratory statements that do not misrepresent the inclusion of victims of crime within current human rights protectionsrdquo72

107 Others highlighted jurisdictional differences in this area and a few believed that specific legislation was a better medium through which to address the rights of victims


108 Approximately 25 respondents advocated the inclusion of a right to administrative justice whilst approximately 10 were opposed

109 Those in favour generally argued that Article 6 of the Convention did not provide sufficient protection particularly in respect of administrative proceedings Others thought that the current complex system would be aided by a general right and others like the Parliamentary and Health Service Ombudsman thought that a right to administrative justice would be

ldquoan important means of enhancing transparency and accountability and therefore of increasing public confidence in standards of public administrationrdquo73

110 The majority of those opposing the inclusion of such rights did so because they thought that the current common law system and deep-rooted constitutional values functioned well and that a general right was unnecessary or could detract from this

111 A variety of ideas were expressed concerning the nature and content of such a right Ideas included rights to equal treatment written reasons and procedural fairness A few respondents suggested basing a right to administrative justice on the text of Section 33 of the South African Constitution or Article 41 of the EU Charter of Fundamental Rights

Environmental Rights

112 Approximately 20 respondents advocated the inclusion of environmental rights approximately 10 were opposed and a further 10 or so did not express a clear view

113 Only a small number of respondents provided their reasoning but those who did tended to cite the UKrsquos obligations under the Aarhus Convention and other international instruments the need to follow the example of the growing number of other countries that had already recognised some form of environmental rights and the need to address effectively urgent environmental issues

72Consultation Paper Response p 4 73Consultation Paper Response p 1

39

UN Universal Declaration of Human Rights

UN Convention on the Elimination of All Forms of Racial Discrimination

International Covenant on Economic Social and Cultural Rights

UN Convention on the Elimination of Discrimination Against Women

UN Convention on the Rights of the Child

UN Convention on the Rights of Persons with Disabilities

UN Principles for Older Persons

ECHR Protocols not ratified by the UK

EU Charter of Fundamental Rights

0

15

30

45

Re

sp

on

de

nts

Ad

vo

ca

ting

International Instrument

114 Those opposed to the inclusion of these rights made similar arguments to those against socio-economic rights discussed above

International Instruments

Number of respondents advocating the incorporation of specific international instruments

115 As noted above approximately 100 respondents argued in favour of incorporation of the UKrsquos obligations under certain international instruments meaning that they wanted these obligations to be made enforceable under domestic law Some of these respondents such as the Irish Traveller Movement in Britain did not in fact support a UK Bill of Rights and preferred to see the UKrsquos international obligations incorporated through other means

ldquoITMB believe that whilst UK human rights can be strengthened to incorporate international conventions and covenants for the purposes of this consultation any recommendations should not be interpreted as justification for replacing the HRA with a BORrdquo74

116 The most regularly cited instruments in this context were the UN Convention on the Rights of the Child (by approximately 40 respondents) ECHR protocols which the UK had not ratified such as Protocol 12 (approximately 30 respondents) and the International Covenant on Social Economic and Cultural Rights (around 20 respondents)

74Consultation Paper Response p 5

40


117 In our Consultation Paper we asked whether a UK Bill of Rights should seek to give guidance to our courts on the balance to be struck between qualified and competing Convention rights

118 Qualified rights are rights that the state can lawfully interfere with in certain circumstances relating to national security public safety the prevention of crime or the protection of the rights of others Convention rights which are qualified in this way include the right to respect for a private and family life (Article 8) the right to freedom of thought conscience and religion (Article 9) the right to freedom of expression (Article 10) the right to freedom of assembly and association (Article 11) and the right against discrimination in the application of Convention rights (Article 14)

119 Where an individual alleges that one of these rights has been interfered with the court has to find the balance between the individualrsquos rights and any qualifying considerations such as national security and public safety as listed above In addition courts are often called upon to balance competing rights such as one personrsquos right to privacy under Article 8 and the right to freedom of expression under Article 10 In that respect the Human Rights Act contains a direction to the courts (Section 12) about how to strike that balance It similarly contains a direction to the courts (Section 13) about considering the importance of freedom of thought conscience and religion when considering the exercise of other rights

120 The balance that is or should be struck when rights conflict or when wider interests are weighed against individual rights is the subject of much debate particularly as to whether it is more appropriate for courts or for elected legislatures to find the appropriate balance

121 Against that background in our Consultation Paper we asked the following question

Question 8 Should any UK Bill of Rights seek to give guidance to our courts on the balance to be struck between qualified and competing Convention rights If so in what way

122 Approximately 100 respondents addressed this question Some two thirds were opposed to any UK Bill of Rights containing guidance for the courts concerning the balance to be struck between qualified and competing rights around a quarter were in favour of such guidance and the remainder were either equivocal or unclear

41

Views opposed to giving guidance

123 The majority opposing the suggestion of guidance in a UK Bill of Rights did so generally for one of three reasons

124 About half urged that judges were better equipped to deal with these issues than legislatures because cases of competing rights involved a delicate balancing act that was better carried out by the courts in individual cases For example the British Association of Social Workers said

ldquo[giving guidance] will be very difficult as each case of competing human rights is individual and is best decided by the judge or jury who hear all the argumentsrdquo75

125 Other respondents stated that there was no problem that needed to be fixed andor that the judiciary needed to remain independent of the legislature and therefore should not be subject to guidance For example Mind said

ldquowe believe that guidance beyond that which is already contained in the HRA would infringe the principle of the separation of powers under which judges interpret the law as made by parliamentrdquo76

126 The Irish Traveller Movement in Britain said

ldquoITMB believe that the Human Rights Act (HRA) already strikes an appropriate balance between qualified and competing rights based on the principle of proportionalityrdquo77

127 A small number of respondents argued that such guidance should be given to the courts but that this should not be done in a UK Bill of Rights For example Liberty wrote

ldquoLiberty firmly believes that a constitutional document expressing a small number of core fundamental freedoms of universal application is not the place to provide detailed prescription about the application of individual rights in specific areas of law or policy Statements of constitutional import make sense as a framework expressing the values and aspirations of a people not as a detailed code designed to deal with the complex operation of rights and freedoms within a modern democratic staterdquo78

75Consultation Paper Response p 2 76Consultation Paper Response p 6 77Consultation Paper Response p 4 78Consultation Paper Response pp 13‐14

42

Views in favour of giving guidance

128 The main reason cited by those in favour of a UK Bill of Rights containing guidance on the balancing of qualified and competing rights was the need to increase or rebalance the protection of specific rights The rights mentioned included freedom of religion79 as well as the balance between Article 8 and Article 1080 For example

ldquoa Bill should give more guidance to the courts on the question of qualified and competing Convention rights than there is currently in S12 of the Act If the Bill is additional to rather than replacing the Act then the guidance needs to be more detailed with more reference to case lawrdquo81

ldquoUnfortunately it has become increasingly clear that the courts are failing to balance competing Convention rights and religious liberty is being eroded as a result Guidance to our courts would therefore be welcomedrdquo82

129 The Society of Editors said that

ldquoone of our key concerns is that any Bill ensures that adequate guidance is given to courts upon striking a balance between often conflicting rights More often than not article 8rsquos protection of a right to personal privacy is seen to come into increasing conflict with a freedom of expression under article 10 As a result of this we feel strongly that any Bill should incorporate Section 12 of the Human Rights Act in specific protection of provisions for public interest defenceshellipThe Society would further endorse specific protection for freedom of the media in addition to the wider protection for Article 10rsquos freedom of expressionrdquo83

130 A small number of respondents argued that guidance would be helpful in some other areas where there is currently a perceived lack of legal certainty for example in defining the parameters of lsquoinhuman and degrading treatmentrsquo for the purposes of Article 384

79Christian Concern and The Christian Legal Centre Consultation Paper Response pp 6‐7 80Society of Editors Consultation Paper Response pp 1‐2 81Sylvie Montgomery Consultation Paper Response p 1 82Christian Concern and The Christian Legal Centre Consultation Paper Response pp 6‐7 83Consultation Paper Response pp 1‐2 84Older PeoplersquosCommissioner for Wales Consultation Paper Response para 81

43

The duty on public authorities

131 Under section 6 of the Human Rights Act 1998 it is unlawful for a lsquopublic authorityrsquo to act in a way which is incompatible with a Convention right The term lsquopublic authorityrsquo includes Ministers Government departments local authorities statutory bodies and courts as well as some private bodies which exercise lsquopublic functionsrsquo on behalf of the state

132 Following a House of Lords decision85 that excluded from the scope of this

duty private companies that provided residential care under contracts with a local authority the Government brought forward legislation that clarified the scope of the Act in respect of certain care services86 Despite this move many believe that there needs to be greater certainty as to the range of bodies covered by such a duty particularly as more public services are outsourced to private bodies Others question such a need and argue that the existing definition is sufficiently flexible

133 In our Consultation Paper we asked whether there was a need to amend the definition of lsquopublic authorityrsquo assuming any UK Bill of Rights contained a duty on public authorities similar to that of section 6 of the Human Rights Act

Question 9 Presuming any UK Bill of Rights contained a duty on public authorities similar to that in section 6 of the Human Rights Act 1998 is there a need to amend the definition of lsquopublic authorityrsquo If so how

134 About 100 respondents answered this question and about one third of respondents to our two consultations discussed section 6 more generally Approximately half of the 100 respondents who expressed a view on the need to amend the definition of public authority advocated amending the definition in any UK Bill of Rights just under half opposed such a move and the remainder were either equivocal or unclear The vast majority of those discussing section 6 generally stressed its importance and advocated its continued inclusion in any UK Bill of Rights

Views in favour of amending the definition of lsquopublic authorityrsquo

135 The predominant reason cited for amending the definition which was given by the majority of those in favour was that the scope was not currently wide enough to include all the organisations that should be subject to this duty in particular private bodies performing public functions For example Age UK said

85YL vBirmingham City Council and Others [2007] UKHL 27 86 Health and Social Care Act 2008 s 145

44

ldquo[we have] long argued that the definition of public authority for the purposes of the HRA should be extended to include any organisation providing services paid for through public funds Many older people are reliant on health and social care services which are increasingly provided by privately-run bodies At the moment only those older people whose residential care costs in private care homes are met by the local authority are protected by the HRA Those people who fund their own placement in a care home or whose placement is funded by insurance payments or annuities remain outside its protectionrdquo87

136 A small number of respondents urged that the definition should be changed to simply clarify the law as to whether or not a body is a lsquopublic authorityrsquo for the purposes of section 6

137 Some of those who expressed a need to amend the definition also noted that it could (or should) be done through separate legislation or other means rather than through a UK Bill of Rights For example the National LGBampT Partnership believed that

ldquothe definition of public authority for the purposes of the HRA could and should be extended by separate legislation rather than a UK Bill of Rights to clearly include any organisation providing services paid for through public fundsrdquo88

Views opposed to amending the definition of lsquopublic authorityrsquo

138 Something under half of the respondents who expressed views on this issue argued against any amendment largely on the basis that the definition worked well or at least that precise changes could be made through the normal legislative process For example the Faculty of Advocates in Scotland said

ldquowe are not satisfied that there is any need to amend the definition While recognising that certainty is important in that it should be clear what falls under the definition of a public authority we would suggest that the decision in YL v Birmingham City Council and Others and the legislative response to it demonstrates that the current system as a whole works wellrdquo89

139 A small number of respondents also said that changing the definition would lead to too much rigidity and that it was desirable to retain some measure of flexibility in the definition For example the Senators of the College of Justice said

87Consultation Paper Response para 101 88Consultation Paper Response p 5 89Consultation Paper Response p 7

45

ldquoit would be difficult to devise a watertight statutory definition of a lsquopublic authorityrsquo It seems to us that the approach taken in section 6 of the Human Rights Act is sufficiently flexible to allow the courts to decide on a case by case basis whether any particular body falls within the category of a public authority depending on the circumstances of the case We consider that this approach has worked without undue difficulty in practicerdquo90

Views about section 6 generally

140 About 300 respondents argued that section 6 had played a critical and positive role in protecting human rights in the UK and that it was critical that it be retained if a UK Bill of Rights were to be enacted

141 Many of these respondents stated that the section 6 duty had been central to the practical implementation of the human rights regime For example the British Institute of Human Rights said

ldquothe section 6 duty is vital to ensuring that human rights are not simply the preserve of lawyers it ensures that human rights happen taking them off the statute books and outside the courts and into everyday life Using this duty the HRA has benefitted countless individuals and helped the public sector deliver services which are fair responsible and meet all peoplersquos basic needs especially the most vulnerable members of our societyrdquo91

142 Action on Hearing Loss wrote to us in similar terms

ldquothe lsquosection 6 dutyrsquo is vital to ensuring the obligations and liberties in the ECHR become part of peoplersquos everyday lives It allows organisations and individuals to argue for fair public services which meet the needs of everybody Therefore any additional Bill of Rights must retain the public dutyrdquo92

143 Many respondents drew on personal experiences to illustrate their strength of support for the duty imposed on local authorities by the Human Rights Act

ldquoIn a very real way I have found that local authorities government officers and public bodies while not constrained or limited in the exercise of their powers now take a very proper and considerate approach to matters where peoplersquos rights could be infringed This

90Consultation Paper Response p 3 91Discussion Paper Response pp 1‐2 92Discussion Paper Response p 2

46

is particularly evident in the areas where I work namely housing and planning lawrdquo93

144 Some respondents asserted that section 6 had had positive pre-emptive impacts by causing public authorities to consider human rights impacts in advance Amnesty International wrote

ldquothe obligation contained in Section 6helliphas helped to transform many public services in the UK This has likely resulted in less litigation as public bodies have learnt to take human rights considerations into account at all stages of their decision-making thereby making it less likely that they will take actions which violate individual rightsrdquo94

145 However a small number of respondents believed that such anticipatory compliance had caused public authorities to incur significant cost and effort often without knowing whether a court would even have required them to act in that way For example the Society of Conservative Lawyers wrote

ldquothe HRA has caused public bodies to go to elaborate lengths and incur enormous costs in order to try and ensure that all activities and policies are lsquoHRA compliantrsquo ndash a goal which is particularly elusive since it is often difficult to predict how the courts will interpret the Actrdquo95

93 Nicholas Ostrowski Consultation Paper Response additional text on a postcard sent to the Commission aspart of a campaign organised by the British Institute of Human Rights 94Discussion Paper Response p 4 95Discussion Paper Response p 11

47

The role of responsibilities in any UK Bill of Rights

Introduction

146 It has been argued by some that there should be inclusion of or at least reference to the concept of responsibilities in any UK Bill of Rights The issue of whether there should be a role for responsibilities as a separate concept alongside rights has been frequently discussed in recent years The previous Government consulted on the issue as part of a wider constitutional reform consultation process without arriving at firm conclusions Those arguing for this position note that concepts of duty and responsibility figure in many aspects of our lives such as our duty to obey the law and our responsibilities to our children They also note that notions of responsibilities figure in current and historic bills of rights in some other countries though these are generally in the form of aspirational or declaratory provisions Those opposing any role for responsibilities frequently premise their arguments on the existing roles of responsibilities and often note that most rights under the Convention and the Human Rights Act involve a concomitant responsibility to respect the rights of others Others are also wary of responsibilities detracting from the universal and fundamental nature of human rights Against that background in our Consultation Paper we asked

Question 10 Should there be a role for responsibilities in any UK Bill of Rights If so in which of the ways set out above might it be included

147 Approximately 140 respondents to our consultation papers discussed this issue Around 80 were opposed to any role ndash or to any greater role than at present ndash for responsibilities in a UK Bill of Rights around a quarter advocated a greater role than at present and the remainder did not come to any clear view

148 Many were opposed on the basis that responsibilities were already implicit in rights provisions and in the criminal law ie that many rights instruments and provisions expressly require a balancing of individual rights with wider or collective rights and considerations and the criminal law already recognised responsibilities by prohibiting and punishing behaviour that was harmful to others We discuss these responses in more detail below

149 Many were also opposed to the inclusion of a concept of responsibilities if rights were to be made contingent on the fulfilment of responsibilities We also discuss these responses below

48

150 Others discussed the challenges of defining and enforcing a concept of responsibilities in a Bill of Rights For example the University of Derby School of Law and Criminology the University of Derby Multicultural Centre and Amnesty International Local Groups in Derbyshire stated

ldquofrom the practical point of view we simply cannot envisage a settled outcome from the enormous legal minefield of deciding which rights should be lost for which irresponsibilities let alone taking degrees of irresponsibility into accountrdquo96

151 Another common argument put forward for example by the Law Society of Scotland was that individualsrsquo responsibilities whilst important should not be defined in a Bill of Rights

ldquothe Council [of the Law Society of Scotland] recognise the call to enhance the responsibilities of the citizen but do not hold to the view that a Bill of Rights is the correct place for such a statementrdquo97

152 On the other hand those who supported or were sympathetic towards some form of role for responsibilities believed that it was necessary for the current rights culture to take into account the need to promote civic responsibility This argument was highlighted by the Wilberforce Society who when discussing the possibility of including individual responsibility in a UK Bill of Rights noted that this approach

ldquoenriches and promotes a sense of civic responsibility by defining a set of value-laden expectations or simply by asserting that in order to claim onersquos own human rights a person must respect those of othersrdquo98

153 Canon Michael Hodge wrote that

ldquoas a believing and practising Christian I am concerned about lsquoRights without Responsibilitiesrsquo at least where a normal adult is concerned The sight of people demanding lsquoTheir Rightsrsquo without any apparent acknowledgement that those carry with them lsquoTheir Responsibilitiesrsquo worries me to put it at its least And yet I have real doubts as to how Responsibilities can have a place in lawhellipWhat I should like to see is a kind of Highway Code Certain rights are enshrined in law but where the consequential responsibilities are spelt out in a Code of Good Practicerdquo99

96Consultation Paper Response p 3 97Discussion Paper Response p 4 98Discussion Paper Response p 1 99Consultation Paper Response p 1

49

154 Many of the arguments for and against the inclusion of a concept of responsibilities were anchored in a presumption that responsibilities would figure in a UK Bill of Rights in a specific way We discuss these below

(i) Making rights contingent on responsibilities

155 Many of the 140 respondents expressed views on the issue of whether the exercise of rights could ever be contingent on the fulfilment of responsibilities Of those a substantial majority were strongly opposed to such a linkage

156 Some opponents such as the mental health charity Mind argued that such a linkage would be dangerous and that increased public education was needed in order to address what they saw as misconceptions about human rights that were fuelling support for such a linkage

ldquopoliticians and the media often talk about rights and responsibilities with the clear implication that the protection from the HRA should be limited if people breach certain responsibilities or social normshellip we strongly advocate the use of education and awareness-raising to address public misunderstanding and misperceptions of human rightshellip We are deeply concerned that the way in which lsquoresponsibilitiesrsquo are being framed in the current debates has the real potential to further embed misunderstanding about the relationship between human rights and responsibilitiesrdquo100

157 Many opponents argued that making rights contingent on responsibilities would breach the lsquouniversality principlersquo of human rights and would be an affront to the fundamental nature of such rights For example the Scottish Human Rights Commission said

ldquothe underlying philosophy of human rights is that every human being is entitled to fundamental rights simply because they are human They are intrinsic universal and fundamental for individual and societal improvement Human rights should not be found contingent on performing responsibilitiesrdquo101

158 Those in favour of a linkage tended to state that rights needed to be earned or that some people were undeserving For example

ldquothere must be recognition that lsquorightsrsquo are delivered by balancing obligations and in some cases need to be lsquoearnedrsquo There must be an end to a lsquotake takersquo mentalityrdquo102

100Consultation Paper Response p 7 101Consultation Paper Response p 8 102Nic Doczi Consultation Paper Response p 2

50

(ii) The existing role for responsibilities

159 Around half of the 140 respondents argued that responsibilities already played a role in the UK legal system generally in three main ways

160 Some argued that responsibilities were already implicit in the concept of human rights The Irish Congress of Trade Unions argued that because one has rights one has the implied responsibility to respect the rights of others

ldquoCongress has always believed that the promotion of rights encourages a sense of responsibility to defend the rights of all without exceptionrdquo103

161 Others held that responsibilities were already implicit in the European Convention on Human RightsHuman Rights Act by virtue of the balancing that the courts are required to undertake when interpreting the many qualified rights For example the charity Reneacute Cassin said

ldquothe judgments of the European Court of Human Rights reflect this on-going qualification of the rights contained in the ECHR and the weighing of these rights against the general good of society such as public health or national security This is responsibilities by another namerdquo104

162 Others argued that responsibilities were already embedded in our legal system through the fact that individuals had obligations under the law and if they broke these obligations for example by committing a crime they would be punished under the law For example Amnesty International said

ldquothe majority of the law of the land sets out the duties and responsibilities of individuals Most notably criminal law and law relating to tort or delict set out the harm that individuals must not do to each other or to the staterdquo105

163 Those who made these arguments were generally opposed to the inclusion of a concept of responsibilities in a Bill of Rights For example the Discrimination Law Association said

ldquothere is no need to include responsibilities since responsibilities are implicit within human rights and embedded within domestic and international human rights frameworksrdquo106

164 However a small number of respondents such as Dr Austen Morgan believed conversely either that these implicit responsibilities needed to be


51

made explicit or that any UK Bill of Rights should include reference to the concept of responsibility in a different way

ldquohuman rights have always implied responsibilities The principal or only responsibility should be support for the rule of law and this could be made expressrdquo107

(iii) Alternative roles for responsibilities

165 Some respondents suggested that responsibilities could figure in a preamble and play a general balancing role at least as an alternative to other possibilities For example the Equality and Human Rights Commission said

ldquoit is preferable that any statement of responsibilities should be either in a preamble or related document rather than in the substantive provisions This would serve to indicate their symbolic value as well as ensure that the provisions are not directly enforceable against individualsrdquo108

166 One or two respondents were opposed to including responsibilities in this way on the grounds that it would have no practical effect and would be misleading For example Robert Broadhurst said

ldquoonly including declaratory responsibilities would be countershyproductive as it would appear to emphasise that rights are privileged over responsibilities whereas in fact the two are coshyexistentrdquo109

167 A small number of respondents advocated a role for discretionary damages in cases where a human rights complainant had failed to comply with his or her basic responsibilities They argued that this would in no way alter the statersquos primary obligations to ensure the protection of the human rights of individuals but would mean that the courts when awarding damages in human rights cases would have the discretion to take into account the extent to which an individual had complied with his or her basic responsibilities Such a mechanism was endorsed by Dr Austen Morgan

ldquoresponsibilities could sound in human rights damages as they did in the Gibraltar IRA case McCann v UK (1995) 21 EHRR 97rdquo110

168 Alternative suggestions for means of incorporating responsibilities in any UK Bill of Rights included ldquosecuring the observance of fundamental

107Discussion Paper Response p 31 108Consultation Paper Response p 30 109Consultation Paper Response p 3 110Discussion Paper Response p 31

52

responsibilitiesrdquo as a qualification to rights such as articles 8-11111 creating a code of good practice112 and making rights more horizontally effective in order to make responsibilities more apparent113

111Robert Broadhurst Consultation Paper Response p 3‐4 112Canon Michael Hodge Consultation Paper Response p 1 113Glen Woodroffe Discussion Paper Response p 1

53

The duty to take Strasbourg case law ldquointo accountrdquo

169 Section 2 of the Human Rights Act 1998 requires our courts to lsquotake into accountrsquo relevant judgments of the European Court of Human Rights when deciding cases involving Convention rights

170 Some commentators have expressed concern that this duty has been interpreted by the courts in a way that has caused them to apply Strasbourg case law too rigidly without sufficient consideration of the UKrsquos legal system Other commentators have said that even if this were the case in the past UK courts are increasingly departing from Strasbourg case law where they consider this to be justified and appropriate

171 It has been suggested by some that any UK Bill of Rights could amend the duty in section 2 to provide different andor clearer direction to UK courts as to how to interpret and apply Strasbourg case law Others have suggested that the section 2 duty should be modified to direct courts to take into account also relevant case law from other countries in particular from other common law countries

172 We requested views from respondents in the Consultation Paper on whether they thought the section 2 duty should be modified and if so how and with what aim

Question 11 Should the duty on courts to take relevant Strasbourg case law lsquointo accountrsquo be maintained or modified If modified how and with what aim

173 Approximately 120 respondents answered this question the majority of whom were respondents to the Consultation Paper 114

174 Just over three quarters of these respondents felt that section 2 should be maintained in its present form Under one fifth of the respondents discussing section 2 wanted to see the provision modified or for a very small number of respondents removed Around one tenth of the respondents were equivocal or unclear on this issue

Keep section 2 as it is

175 Just over three quarters of the respondents who expressed views on this issue argued that section 2 should be maintained in its current form While a substantial number of these respondents provided no specific reason for this

114Although we did not pose this question in the Discussion Paper we reviewed all Discussion Paper responses to identify those who discussed the issue

54

view a number of respondents argued that the section 2 duty was working well in its current form even if for some it had not necessarily been construed correctly by UK courts in the past For example JUSTICE said to us that

ldquothere has been a longstanding debate on whether section 2 requires our judges to be bound by the jurisprudence of the European Court of Human Rights Although there is a clear line of case law which suggests our judges consider themselves so bound there is nothing in the Human Rights Act 1998 which requires this approachhellip The judges themselves appear to be moving away from this unduly restrictive approachhellip Rightly we consider that the language in the Human Rights Act 1998 strikes an appropriate balance between respect for the boundaries of the Convention and encouragement of the development of independent domestic rights jurisprudencerdquo115

176 Similarly the Faculty of Advocates in Scotland said

ldquoWe believe the approach the Supreme Court currently adopts in this respect is correctrdquo116

177 At the same time a number of respondents stressed the importance of section 2 either in ensuring consistency in the application of Convention jurisprudence across signatory countries including the UK or as a critical part of the protections offered by the Human Rights Act and of the UKrsquos compliance with its Convention obligations For example

ldquothe law as it currently stands is sufficient and should not be changed It is vital that UK courts can take into account rulings of the European Court to ensure consistency in the understanding and application of human rights in countries signed up to the ECHRrdquo117

ldquoany future Bill of Rights should be designed to enhance not to weaken the protections and mechanisms already in place in this legislation In particular any UK Bill of Rights should either retain or strengthen the obligations of this Act under sections 2 (interpretation of Convention rights) 3 (interpretation of legislation) 6 (acts of public authorities) and 19 (statements of compatibility) and the right to a remedy under section 7rdquo118

ldquo[Equal Rights Trust] believes that the powers granted to the UK courts under sections 2 3 and 4 of the Act are critical to ensuring

115Consultation Paper Response p 14 116Consultation Paper Response p 8 117Irish Traveller Movement in Britain Consultation Paper Response pp 6‐7 118Childrenrsquos Commissioner for England Discussion Paper Response p 2

55

that the UK effectively meets its obligations under Article 13 of the Conventionrdquo119

178 Some respondents also argued that section 2 should be maintained in order to ensure legal certainty For example the National AIDS Trust said that ldquoany modification could cause unnecessary and costly legal confusionrdquo120

179 A small number of respondents stated that the wording of section 2 was adequate but felt that it could be helpful to introduce some form of guidance to clarify the interpretation that UK judges should give to section 2 For example Immigration Judge Jonathan Lewis advocated ldquostatutory clarificationrdquo of the meaning that had ldquoalways (been) intendedrdquo namely that judges would be under a duty to ldquobear in mindrdquo Strasbourg jurisprudence and ldquono morerdquo121 Other terms used to describe such proposed interpretative guidance included ldquoPractice Directionrdquo122 and ldquoExplanatory Noterdquo123 though no precise drafting suggestions were offered

Modify or remove section 2

180 Fewer than one fifth of the respondents discussing section 2 believed that the provision should be modified or in the case of a small number of respondents removed Some provided no specific reason for these views andor no specific suggestions as to how section 2 should be modified

181 Of those who did provide reasons or suggestions a small number suggested that section 2 should be modified to include a reference to other case law such as case law from other common law countries124 or international human rights bodies and courts125 or other international human rights obligations126 Some suggested authorising a more generous interpretation of the Convention than Strasbourg Court jurisprudence or making Strasbourg Court jurisprudence binding on domestic courts For example Professor Robert Wintemute of Kingrsquos College London suggested that

ldquothe HRA should be amended so as to overrule the lsquono morersquo part of the late Lord Binghams lsquoUllah principlersquo and expressly authorise a more generous British interpretation of the Convention rightshellip eg

lsquos 2(4) For the avoidance of doubt a court or tribunal may find an incompatibility with a Convention right in a particular situation for the purposes of this Act and other United

119 Discussion Paper Response p 3 120 Consultation PaperResponse p 4 121 Consultation PaperResponse p 5 122University of Cambridge Centre for Public Law Discussion PaperResponse p 7 123John Kissane Consultation Paper Response p 1 124Dominic Raab MP Discussion Paper Response p 36 125Amnesty International UK Discussion Paper Response p 14 and Consultation Paper Response p 8 126Sussex University Centre for Responsibilities Rights and the LawConsultation Paper Response p 8

56

Kingdom law even though the European Court or Commission of Human Rights has not yet done so or would not be likely to do so for the purposes of the European Convention on Human Rights and its application to all member states of the Council of Europersquordquo127

182 Wild Law UK stated that

ldquos 2 of the Human Rights Act should be amended to dictate that the jurisprudence of the ECtHR is binding on the UK domestic courtsrdquo 128

183 A small number of respondents related their views on modification or removal of section 2 to an argument that the UK should withdraw from the European Convention on Human Rights For example the UK Independence Party said

ldquoWe believe the UK should leave the Convention system The most we would wish to see is a power (rather than a requirement) to take account of ECHR jurisprudencerdquo129

127Discussion Paper Response 128Wild Law UK Discussion PaperResponse p 3and Consultation Paper Response p 11 129Consultation Paper Response p 5

57

The balance between courts and Parliament

184 Under section 3 of the Human Rights Act courts are required to interpret legislation in a way that is compatible with Convention rights If a court determines that a statute of the United Kingdom Parliament cannot be read and given effect in a way that is compatible with a Convention right under section 4 the court can issue a lsquodeclaration of incompatibilityrsquo Even if such a declaration is made however the legislation remains in force and it is up to Parliament to decide whether and if so how the incompatibility should be addressed Unlike the position under the European Communities Act and in many other European and Commonwealth countries the courts cannot declare the statutes of the UK Parliament invalid and unenforceable130 The Human Rights Act therefore leaves it ultimately to Parliament to decide whether to amend the law in question

185 In the view of many commentators the Human Rights Act in this way strikes a sophisticated and sensible balance between on the one hand the sovereignty of the UK Parliament which is democratically accountable and represents the people and on the other hand the power and duty of the courts to declare and enforce the law and to provide effective remedies in accordance with the will of Parliament

186 Some however have argued that this balance should be altered by giving courts the power to declare provisions of UK statutes invalid and unenforceable where it is found that they cannot be read compatibly with Convention rights Others argue that the present position should be retained Still others argue that the balance struck by the Human Rights Act is not the critical issue because if the Government and Parliament choose to do nothing following a declaration of incompatibility individuals can still seek redress from the Strasbourg court for breach of their human rights If the Strasbourg court agrees the Government and Parliament are then bound by Article 46 of the Convention to comply with the Strasbourg Courtrsquos judgment

187 To those who regard the Convention system as a threat to the doctrine of Parliamentary sovereignty or supremacy this is not satisfactory They criticise the fact that Parliamentary sovereignty is in their view undermined by the mechanism of a declaration of incompatibility since Parliament is effectively bound by the judgments of the Strasbourg court Others counter that this is in the nature of the UKrsquos obligations under the many international treaties which it has ratified in numerous areas of policy-making and that the UK made the decisions in ratifying these treaties that it wished to comply with the obligations found in them Against that background we asked for views on the following question

130It is also unlike the situation under the devolution statutes Where aprovision of a statute passed by a devolved legislature is found to be incompatible with the Convention the court mustdeclare it tobe of no force or effect

58

Question 12 Should any UK Bill of Rights seek to change the balance currently set out under the Human Rights Act between the courts and Parliament

188 Approximately 130 respondents to our consultations expressed views on this issue either directly in response to the question in our Consultation Paper or as part of their Discussion Paper response

189 Over half of these respondents favoured maintaining the status quo Around one fifth of respondents favoured changing the balance in favour of the courts while around one tenth thought that the balance should be changed in favour of Parliament One tenth of respondents were equivocal or unclear on this issue

Maintain the status quo

190 Over half of respondents favoured maintaining the status quo In general these respondents believed the current system struck a sensible balance between on the one hand the sovereignty of the democratically accountable UK Parliament and on the other hand the power and duty of the courts to enforce the law and to provide effective remedies in accordance with the will of Parliament For example one individual told us

ldquoin retrospect we have worked out a very lsquoBritishrsquo solution pragmatically balancing our modern international and judicial commitments with the historical doctrine of parliamentary sovereigntyrdquo131

191 The Law Society of England and Wales also stated

ldquodeclarations of Incompatibility are the best way to adjudicate human rights while still preserving the tradition of parliamentary sovereigntyrdquo132

Change the balance

192 A minority of respondents believed the balance should be changed with most asserting it should be changed in favour of the courts For example The Law Society of Scotland wrote

ldquoa stronger judicial role would be needed if a Bill of Rights for the United Kingdom were enacted That stronger judicial role would imply restrictions on the concept of Parliamentary sovereignty and

131Maggie Beirne Consultation Paper Response p 4 132Discussion Paper Response p 9

59

allow for the judiciary to strike down legislation which was incompatible with the Bill of Rights for the United Kingdomrdquo133

193 McEvedys Solicitors and Attorneys told us

ldquowe believe the Judiciary should be able to strike down an Act of Parliament as unconstitutional or non-compliant with Human Rights obligations Most developed nation states provide this power to the Judiciaryrdquo134

194 The Solicitors International Human Rights Group said

ldquothe Declaration of Incompatibility procedure is now outmoded It has no doubt been useful in the early stages following incorporation of the ECHR into UK law but now our courts should be able to strike down legislation that is clearly incompatible with the ECHR or any other international instruments to which we are partyrdquo135

195 Finally one individual told us

ldquoI feel rather strongly that there is no point in having a justiciable process leading to a finding that UK law is incompatible with the Declaration of Human Rights if the UK governmental system and parliament can ignore it Therefore I believe that the courts should have the power to declare a statute invalid and unenforceablerdquo136

196 A small number of respondents believed the balance should be shifted in favour of Parliament though few described how and of those that did the suggestion was generally that it was section 3 rather than section 4 that needed to be changed For example Robert Broadhurst wrote to us that

ldquothe powers accorded to [judges] under the ECHR and HRA have led to what is effectively law-making by judges on a major scale Such law-making lacks democratic legitimacyhellip a UK Bill of Rights should replace the HRA This should remove the provision of section 3 HRA legislation should be given its ordinary meaning This would better uphold the democratic will of Parliament when it enacted legislation and would improve legal certainty in the UKrdquo137

133Consultation Paper Response p 5 134Discussion Paper Response p 2 135Discussion Paper Response 136Roger Gibbs Consultation Paper Response p 3 137Consultation Paper Response p 6

60

The balance between the Strasbourg Court and the elected bodies of signatory states

197 A small number of respondents discussed the possibility of changing the relationship between the Strasbourg Court and the elected bodies of the signatory states to the European Convention Some advocated maintaining the status quo while others supported changing the balance in favour of the UK Parliament

198 Some respondents argued for a greater lsquomargin of appreciationrsquo to be afforded by the Strasbourg Court For instance the Society of Conservative Lawyers told us

ldquothere needs to be a new emphasis on the margin of appreciation given to States in addressing the complex issues which face modern democratic societies There will be little point in having a new British Bill of Rights if disappointed litigants are able to routinely have a second bite of the cherry under the European Convention of Human Rights in Strasbourgrdquo138

199 A small number of respondents suggested the introduction of a mechanism that would allow the UK to override Strasbourg judgments Robert Broadhurst stated

ldquothe UK could seek an amendment to the ECHR that would allow Parliament (perhaps the House of Commons specifically as the elected Chamber) to overturn judgements of the ECtHR directed at the UK where these offended the mainstream British understanding of human rightsrdquo139

200 Thomas Webber stated

ldquothe danger of a normative clash between the UK Courts and the European Court of Human Rights might be corrected by way of a democratic override In this conception the UK Parliament may act to amend the law through a special procedure similar to that already enshrined under section 10 of the Human Rights Act 1998rdquo140

201 On the other hand a small number of respondents expressed objections to the idea of lsquodemocratic overridersquo proposed in the Chairrsquos letter regarding reform of the Strasbourg court

202 The joint response from the AIRE Centre and others stated

138Discussion Paper Response p 3 139Consultation Paper Response p 6 140Discussion Paper Response p 2

61

ldquowe wish to register our strong objection to any proposal that would permit a lsquodemocratic overridersquo of Court rulings As an initial matter the independence of the European Court and its capacity to issue binding judgments that can ensure the observance of the Convention obligations undertaken by Member States are principles fundamental to the European Convention of Human Rightshellip Furthermore such a proposal finds no support in the text of the European Convention itself Article 46 makes clear that Contracting Parties lsquoundertake to abide by the final judgment of the Court in any case to which they are partiesrsquo

Moreover lsquodemocratic overridersquo would imperil the very fabric of the Convention system itself built as it is on the vision of a European continent where rights are protected and guaranteedrdquo141

203 Michael Norris stated

ldquoI would be seriously concerned about any proposals that would allow decisions of the European Court of Human Rights to go unenforced or to be overridden particularly where this decision would be taken by the Committee of Ministers alone If any body were to have this power it ought to be the Parliamentary Assembly of the Council of Europe However I do not believe that any body should have such a power the decisions of the Court whilst not always popular must be respected by allrdquo142


62

Should any UK Bill of Rights be entrenched

204 Although we did not ask respondents about whether a UK Bill of Rights should be entrenched or not approximately 150 respondents across the two consultations considered this issue often as part of their discussion of the balance between courts and Parliament

205 An lsquoentrenchedrsquo bill of rights or constitutional instrument is typically one that cannot be repealed or amended by ordinary statute but rather requires special procedures or a special majority such that it has the status of higher or supreme law

206 Of the approximately 150 respondents who discussed this issue over three quarters were in favour of an entrenched Bill of Rights generally as part of a wider written constitution Around one tenth of these respondents were opposed to entrenching a Bill of Rights while around one tenth were equivocal or unclear on this issue

207 In support of entrenching a Bill of Rights the Family Law Society wrote

ldquothe entrenchment of a UK Bill of Rights as part of a written constitution would guarantee that rights could not be rescinded by a simple vote by future parliamentsrdquo143

208 The Law Society of Scotland said

ldquoThe [Constitutional Law Sub-committee of the Law Society of Scotland] favours procedurally entrenching the Bill of Rights for the United Kingdom by way of the creation of a special majority voting system for both Houses of Parliament and an amendment to the Parliament Acts requiring both Houses to consent to the Bill subject to the special majority

If a Bill of Rights were enacted in the manner suggested eg as an entrenched piece of legislation with a superior constitutional status it would lead to a re-alignment and re-balancing of the relationship between the executive Parliament and the courtsrdquo144


ldquoI would not object to a British Bill of Rights replacing the current HRA if this built on the protections already available under the

143Consultation Paper Response p 6 144Consultation Paper Response pp 5‐6

63

latter I would also like to see it entrenched preferably requiring a supermajority of both Houses in order to amend itrdquo145

210 On the other hand the Society of Conservative Lawyers argued that

ldquowe do not believe that any new Act should be ldquoentrenchedrdquo (if that is even constitutionally possible) We consider it important that the principle of Parliamentary sovereignty should be preserved and that future generations should have the ability to make changes to human rights legislation to reflect the circumstances of their timerdquo146

145Ben Boult Consultation Paper Response pp 6‐7 146Discussion Paper Response p 3

64

Devolution and a UK Bill of Rights

211 The power to make laws and carry out certain government functions in the UK is exercised not only by the UK Parliament and Government but also by legislatures and administrations in Northern Ireland Scotland and Wales These powers were devolved in part to each of those countries by legislation passed by the UK Parliament the Northern Ireland Act 1998 the Scotland Act 1998 and the Government of Wales Acts 1998 and 2006 as amended

212 These statutes known as lsquodevolution settlementsrsquo require that all action taken by the devolved legislatures and administrations in Northern Ireland Scotland and Wales is compatible with the rights contained in the European Convention on Human Rights as defined in the Human Rights Act 1998 and ensure that the devolved legislatures can only pass laws which are compatible with these Convention rights

213 In addition to the existence and impact of the devolution settlements there are differences across England Northern Ireland Scotland and Wales in legal systems and heritage and in history and political landscapes

214 Against that background the Commission asked in its 2011 Discussion Paper how any UK Bill of Rights might apply to the UK as a whole including its four component countries of England Northern Ireland Scotland and Wales In its 2012 Consultation Paper the Commission asked for views on the extent to which current constitutional and political circumstances in Northern Ireland Scotland Wales andor the UK as a whole should be a factor in deciding whether (i) to maintain existing arrangements on the protection of human rights in the UK or (ii) to introduce a UK Bill of Rights in some form The Commission also sought views on two possible models for a UK Bill of Rights outlined below

215 In response to both papers the Commission received a range of views on issues relating to devolution and a UK Bill of Rights from approximately 280 organisations and individuals in different parts of the UK The Commission also received over 1200 postcard responses as part of a campaign organised by the Northern Ireland Human Rights Consortium that sought to highlight the ongoing debate on a Bill of Rights for Northern Ireland and its relationship to the Commissionrsquos work While the majority of views on these issues came from individuals and organisations who identified themselves as coming from or representing those in Northern Ireland Scotland and Wales a number of individuals from England or organisations with a UK-wide remit also expressed views on issues relating to devolution and a UK Bill of Rights

216 Overall there was little support for a UK Bill of Rights in Northern Ireland Scotland or Wales Calls for a UK Bill of Rights were generally perceived to be emanating from England only For many in Northern Ireland Scotland and

65

Wales a UK Bill of Rights was not considered a prominent or pressing issue on the public agenda These views were not however universally held with some in different parts of the UK saying either that a UK Bill of Rights was necessary or desirable or that it could have potential benefits depending on its content For a summary of views of all respondents ndash including those in Northern Ireland Scotland and Wales ndash on the question of whether we need or should have a UK Bill of Rights together with reasons please see earlier sections of this summary

Discussion Paper Question 3 [If you think we need a UK Bill of Rights] 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

217 Approximately 200 organisations and individuals who responded to our Discussion Paper expressed a view on the possible application and extent of a UK Bill of Rights although many did so on the basis that they were equivocal or opposed to the principle of a UK Bill of Rights Just under half of these respondents believed that if there were however to be an instrument it should apply in a uniform manner throughout the UK For example

ldquoif we were to have such a document it would be rather shocking were it not to apply equally to the entirety of the UK Devolved government offers enough inequalities between those living on different sides of our internal borders as it is A Bill of Rights would one assumes purport to be a rather fundamental statement of basic (or not so basic) rights It would be an assertion of universal rights Universal rights cannot start or stop at political boundaries and while we cannot impose our ideas on the world at large we can impose them on the entire countryrdquo147

218 Others expressed the view ndash in differing levels of detail ndash that although any UK instrument should ensure a minimum level of protection there should be scope for rights to be protected in different ways in different parts of the UK Many pointed to examples of how this had already occurred under the devolution settlements For example the Welsh Refugee Council stated that

ldquowe believe that there should be consistency of the basic Human Rights Framework across the UK However different devolved governments have different approaches to Human Rights and this should be allowed forhellipAs an examplehellipthe Childrenrsquos Convention is the cornerstone of the policy framework in Wales and not in EnglandhellipWe will get to a stage and some would argue we are now [at that stage] where there is a different understanding of

147Dr Rob George Discussion Paper Response p 2

66

peoplersquos fundamental rights between Westminster and Cardiff and a Welsh Bill of Rights may be one way to address thisrdquo148

219 Respondents often also commented on whether and the extent to which a UK Bill of Rights might be desirable andor possible in the light of the devolution settlements and the particular circumstances ndash incuding the current political landscapes ndash in Northern Ireland Scotland and Wales

220 Some respondents were concerned that a UK Government-led initiative to enact a UK Bill of Rights particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland in parallel to the current debate on Scotlandrsquos constitutional future and in the wake of the recent increase in devolved powers in Wales could have unfavourable constitutional and political consequences

221 Views expressed to us from Northern Ireland were often linked or restricted to opinions on the desirability andor viability for a separate Bill of Rights for Northern Ireland and the requirements of the BelfastGood Friday Agreement For example the Northern Ireland Human Rights Consortium said to us

ldquoprovision for a Northern Ireland Bill of Rights was an integral part of the Northern Ireland peace agreement that is intended to have the ECHR as its human rights floor with the addition of supplementary rights to reflect Northern Irelandrsquos particular circumstances Both taken together are to constitute a Bill of Rights for Northern Ireland That floor exists within the Human Rights Act but the current UK Bill of Rights process is not mandated to and could not even if it chose to do so develop the supplementary rights required to complete the Northern Ireland Bill of Rightsrdquo149

222 In addition the Commission received 1244 postcard responses from individuals as part of a campaign organised by the Northern Ireland Human Rights Consortium which stated that ldquonothing done at the UK level should be allowed to cut across [the Northern Ireland Bill of Rights] initiative or reduce current protectionsrdquo

223 Views expressed to us in respect of Scotland were predominantly viewed through the lens of the ongoing debate on Scotlandrsquos constitutional future within the UK A small number of respondents made specific reference to the planned referendum on Scottish independence as a reason to maintain the current system The Faculty of Advocates of Scotland in their response to our Consultation Paper stated

ldquogiven the impending [Scottish independence referendum] in 2014 it may be that matters are in such a state of flux as to render the

148Discussion Paper Response p 2 149Consultation Paper Response p 5

67

development of a UK Bill of Rights at this time neither appropriate nor desirablerdquo150

224 While there was generally less commentary in respect of Wales some felt that it would be constitutionally and politically inappropriate for the Westminster Parliament to alter the parameters of the Welsh Assemblyrsquos legislative competence in the light of the recent extension of devolved competence to Wales In response to our Consultation Paper the Commissionrsquos Advisory Panel members from Wales Aled Edwards and Clive Lewis QC said

ldquoLegislation enacted by the Assembly must be compatible with Convention rights The provisions conferring such legislative competence including the need to ensure it was compatible with Convention rights as set out in the Human Rights Act 1998 was approved by a referendum in Wales in March 2011 Laws in devolved areas are now made by the Assembly The UK legislature does not normally seek to make laws in areas of devolved competence without the consent of the Assembly In our view it is not consistent with the logic of that devolution settlement (enacted by the UK Parliament and endorsed by the population of Wales) for the United Kingdom Parliament now to alter the parameters of the Assemblyrsquos legislative competence or to impose additional restrictions on the power of the Assembly to enact laws in devolved areas (or to impose additional restrictions or obligations on the Welsh Government in devolved areas)rdquo151

225 More generally many respondents from different parts of the UK discussed whether and how any UK Bill of Rights would affect the devolution settlements in Northern Ireland Scotland and Wales whether amendments to these settlements would be necessary and whether the consent of the devolved administrations or legislatures would be required to the introduction of a UK Bill of Rights For example Professor Francesca Klug and Amy Ruth Williams

ldquothe ECHR is tied and embedded into the devolution statutes These provide that the devolved institutions have no competence to act in any manner that is contrary to the lsquoConvention rightsrsquo defined as having the same meaning as in the HRA (section 1) From a legal perspective if the HRA were repealed or impliedly amended by a subsequent UK Bill of Rights there would almost certainly be a need for amendments to the devolution statutesrdquo152

ldquoA strong argument can be made that lsquohuman rightsrsquo have been devolved to the devolved jurisdictions and that any amendments to


68

the HRA and any enactment of a Bill of Rights would require amendments to be made to the devolution statutes with the consent of the devolved legislaturesrdquo153

ldquoThe UKrsquos constitutional arrangements must be given careful thought when considering the possibility of a Bill of Rights for the UK All of the devolved settlements have human rights embedded into them and any new Bill which covered the whole of the UK would need to take into account the application of the Bill of Rights to the countries which make up the UK and how it interacts with the specific limitations placed on the devolved administrations by the Northern Ireland Act Scotland Act and Government of Wales Actrdquo154

226 While some saw these issues arising as a consequence of any attempt to introduce a UK Bill of Rights others suggested that this would depend on the form and content of such a Bill

Consultation Paper Question 13 To what extent should current constitutional and political circumstances in Northern Ireland Scotland Wales andor the UK as a whole be a factor in deciding whether (i) to maintain existing arrangements on the protection of human rights in the UK or (ii) to introduce a UK Bill of Rights in some form

227 Approximately 120 respondents to both papers referred to current constitutional and political circumstances in Northern Ireland Scotland Wales andor the UK as a whole as a factor to some degree in deciding whether to maintain the current system andor adopt a UK Bill of Rights There was however a wide range of views on the extent to which such circumstances might play a decisive role in any decision

228 Just over half of respondents who addressed this question in our second consultation expressed the view that current constitutional and political circumstances were strong arguments for retaining the current system or for some at least at this time This was based in part on the view that at a time of such fluidity and constitutional uncertainty within the UK current structures in respect of human rights should be maintained For example the Scottish Human Rights Commission said to us that it

ldquocontinues to be concerned that the current political climate presents singularly unfavourable conditions to discuss a UK Bill of Rightsrdquo155

153Faculty of Advocates Consultation Paper Response p 8 154Amnesty International UK Discussion Paper Response p 15 155Consultation Paper Response p 10

69

229 The Equality and Human Rights Commission expressed a similar sentiment

ldquothe planned referendum on Scotlandrsquos constitutional future in October 2014 also means that we may be about to enter a period where we see potentially significant new powers devolved to Scotland again differential rights regimes in place in different parts of the UK at a time of such fluidity and potential uncertainty would be unhelpfulhellipFor these reasons we believe that the complex political and constitutional factors at play in the UK mean current structures should be maintainedrdquo156

230 Referring to the responses we received to our first consultation the Human Rights Consortium in Northern Ireland said

ldquocircumstances in Northern Ireland should be a massive factor in your decision-making In the first consultation a substantial number of submissions repeatedly highlighted the dangers of your process interfering in the already established Northern Ireland Bill of Rights processhellipThe Consortium believes that the protections promised in the [BelfastGood Friday] Agreement are essential to maintaining and extending the peace process in Northern Irelandrdquo

231 Professor Fiona de Londras of Durham Law School told us that

ldquoin relation to Northern Ireland in particular it should be noted that in addition to the Human Rights Act there is already substantial work ongoing on the desirability and possible form of both a Bill of Rights for Northern Ireland and a Charter of Rights for the Island of Ireland If introduced these will sit alongside the ECHR the Human Rights Act and the Charter of Fundamental Rights of the EU This is already a complex proposition It seems likely that adding an additional lsquoUK Bill of Rightsrsquo into the equation would bring about further uncertainty fragmentation and complexityrdquo157

232 Approximately one third of respondents who answered this question in our second consultation paper thought that current constitutional and political circumstances should not however constitute a barrier to change For example Ulster Human Rights Watch said

ldquoalthough the United Kingdom consists of four different entities England Northern Ireland Scotland and Wales the unity of the British nation must be maintained Constitutional and political circumstances in different parts of the United Kingdom should not


70

be seen as an impediment to the introduction of a UK Bill of Rights since it will preserve the unity of the nation and reinforce itrdquo158

233 A similar view was highlighted by Dr Austen Morgan who argued that

ldquothe regional assemblies do not have a veto on the repeal of the HRA 1998 That is a matter solely for Westminster If anything the HRA 1998 ndash like the European Communities Act 1972 ndash is simply an imposition on them The only point is that the HRA 1998 was to some extent agreed and therefore any replacement should be negotiated with the devolved administrations ndash an unremarkable political propositionrdquo159

234 Some respondents discussed current constitutional and political circumstances in the UK but expressed no clear view on the extent to which they should be a factor often stating that the issue fell outside their areas of expertise but urging that the views of experts and organisations in the devolved nations should be taken into account For example the Equality and Diversity Forum said that

ldquothese questions go beyond the remit and expertise of EDF member organisations However we do believe they are critically important questions and we would encourage the Commission to take into account the views of suitable experts and organisations in each of the devolved administrationsrdquo160

Views from devolved administrations legislatures and political parties

235 The responses to both our consultation papers from devolved administrations legislatures and political parties in Scotland Wales and Northern Ireland all referred ndash in varying levels of detail ndash to the need for the particular circumstances pertaining to those countries to feature in the current debate

236 Roseanna Cunningham MSP the Scottish Governmentrsquos Minister for Community Safety and Legal Affairs said

ldquoon the extent to which the Commission would seek to factor the current debate around Scotlandrsquos constitutional future into its thinking I would simply state that in an independent Scotland we would seek to ensure that human rights as defined by the Convention are at least as well protected as they are now Under the existing constitutional settlement we would express the view that were the UK Government minded to alter the current regime

158Consultation Paper Response p 8 159Discussion Paper Response p 15 as cited in his Consultation Paper response 160Consultation Paper Response p 6

71

the consent of the Scottish Parliament would be required under the Sewel Convention We would therefore expect to be consulted in the event of any proposed changes As we have stated throughout the Scottish Government would oppose repeal of the Human Rights Act and the imposition of a UK Bill of Rights Our position therefore is and remains that Scotlandrsquos views are of critical importance in any decision to vary current arrangements and to the extent that such change would affect Scotland directly the position arrived at by the Scottish Parliament must be respected as being definitive and conclusiverdquo161

237 The response from the Scottish Parliamentrsquos Justice Committee pointed to the current political backdrop

ldquoit is widely recognised that the Commission was set up as part of a coalition agreement between two parties with very different views on the role of human rights in the UKrsquos legal systems rather than because of a clear consensus across civic society that now is the right time to discuss a UK Bill of Rightsrdquo162

238 The Welsh Government referred to

ldquoa number of issues specific to Wales that would cause the Welsh Ministers concern in relation to a proposed Bill of Rights Mainly these issues centre on language rights ensuring that language services are provided and honouring the commitment the Welsh Government has made to the Welsh language in the Welsh Language Measure 2012rdquo163

239 More generally the Welsh Government said that it ldquofinds it difficult to see the benefits in a UK Bill of Rightsrdquo164

240 The Constitutional and Legislative Affairs Committee of the National Assembly for Wales told us that

ldquohellipthe National Assembly had only just acquired very extensive legislative powers and that the new arrangements were only just starting to be understood and used in Cardiff and London At the same time the Government in Scotland planned a referendum on independence The outcome of such a referendum would obviously have considerable significance for the content of any Bill of Rights and the issue of a written constitutionhellipThere was a general feeling

161Consultation Paper Response p 5 162Consultation Response p 1 163Angharad Catrin Richards the office of Theodore Huckle QC on behalf of the Welsh Government Consultation Paper Reponses p 1 164Ibid

72

that the question of a Bill of Rights was not a matter of great public controversy and debate at presentrdquo165

241 The Minister of Justice in Northern Ireland stated

ldquoI continue to believe that whether by way of a UK Bill of Rights or one that is specific to Northern Ireland this part of the UK would benefit from having a Bill of Rights that reflects our particular needsrdquo 166

242 The Commission also received a response from Sinn Feacutein which stated that

ldquothe UK commission consultation document contradicts previous assurances we have repeatedly received since early 2008 that the Bill of Rights for the North and the UK Bill of Rights and Responsibilities processes would be separate Sinn Fein emphasises that only full decoupling of these two processes will be acceptablerdquo167

Views from National Human Rights Institutions

243 The Commission received responses to these questions from all three National Human Rights Institutions in the United Kingdom The Equality and Human Rights Commission which has a remit in respect of England and Wales and in certain respects Scotland stated in their response to our Discussion Paper

ldquoThe devolution implications of any possible repeal of the Human Rights Act and replacement by a British Bill of Rights are complex given the degree to which the HRA is embedded in the devolution legislation Even if the devolution settlements in Scotland Wales and Northern Ireland do not represent formal legal impediments to any such proposals it is likely that the agreed conventions which have emerged since 1998 would require the consent of the devolved institutions to any major change These constitutional considerations cannot be separated from the wider political context and the divergent political narratives in the devolved nations which suggest such consent may be unlikely to be forthcomingrdquo168

244 The Northern Ireland Human Rights Commission responded to our second consultation stating

165Discussion Paper Response p 2 166David Ford MLA Minister of Justice Consultation Paper Response p 1 167Consultation Paper Response p 11 168Discussion Paper Response p 103

73

ldquoIn 2011 the NIHRC advised that it was necessary for the Commission to ensure that any decision regarding a UK Bill of Rights be adopted by the Westminster Parliament and applied with equal force in Northern Ireland as elsewhere in the UK The UK wide provisions should be in accordance as a minimum with the existing implementation and enforcement mechanisms set out in the Human Rights Act 1998 and contained in the devolution statutehellipReflecting [the Belfast (Good Friday) Agreement 1998 and the Agreement at St Andrews 2006] commitments the Commission should in the view of NIHRC conclude on the continuing need to legislate for a Bill of Rights for Northern Ireland and advise the UK Government accordinglyrdquo169

245 In their response to our Discussion Paper the Scottish Human Rights Commission emphasised the constitutional and devolutionary complications which they believed would arise if the Human Rights Act were to be substituted by a UK Bill of Rights

ldquoRepeal of the HRA is likely to undermine [the Scotland Act 1998 the Government of Wales Act 1998 the BelfastGood Friday Agreement and the Northern Ireland Act 1998] constitutional arrangements and consistent cross-UK interpretation of the Convention Instead it may well have the unintended consequence of cementing a two-tier system of human rights protection within the UK as it is likely that the Scottish Parliament would not agree to the replacement of the HRA by a UK Bill of Rights and any subsequent lowering of the existing level of protection provided by the HRA in such devolved areas as health and social care education social work housing criminal justice etc This would therefore present the legitimate question for the UK Government to answer - why should individuals in London Belfast and Cardiff have less human rights protection than those in Glasgowrdquo170

Question 14 What are your views on the possible models outlined in paragraphs 80-81 above for a UK Bill of Rights

246 In our Discussion Paper we asked how any UK Bill of Rights should apply to the UK as a whole including its four component countries of England Northern Ireland Scotland and Wales A small number of respondents offered views on this question asserting for example that the rights in a UK Bill of Rights should apply across the United Kingdom andor that the devolved legislatures should continue to develop their own human rights policies within devolved competences In our second consultation paper we sought more

169Consultation Paper Response p 7 170Discussion Paper Response p 4

74

precise views by setting out two possible models for comment These were at paragraphs 80 and 81 of the Consultation Paper

ldquo80 hellipa Bill that might sit alongside the existing Human Rights Act and contain substantially similar provisions and rights to those currently found in Schedule 1 to the Act Under this model these rights might apply UK wide but be exercisable in respect of reserved matters only Such an instrument might also include a separate chapter containing rights that applied only to England as well as a statement that acknowledged the competence of the Northern Ireland Assembly the Scottish Parliament and the National Assembly for Wales to enact legislation conferring additional rights to meet the particular needs of those countries Any additional rights passed by the devolved legislatures would by virtue of the existing devolution statutes relate to devolved matters onlyrdquo

ldquo81 hellipa UK Bill of Rights that contained additional rights in respect of Northern Ireland Scotland and Wales but which would not enter into force in respect of those countries without the consent of the respective devolved legislaturerdquo

247 Fewer than 50 respondents answered question 14 and fewer than half expressed direct views on possible models for a UK Bill of Rights There was little analysis offered of the models

248 The largest number of responses to this question came from organisations and individuals in Northern Ireland including the Northern Ireland Human Rights Commission and the Northern Ireland Human Rights Consortium These responses generally emphasised the BelfastGood Friday Agreement commitment to a Northern Ireland Bill of Rights and urged that it remain a distinct process and instrument The Consortium argued in particular that the models were attempts to offer ldquoa standardised solution to distinctly different circumstances in the various devolved regionscountriesrdquo and expressed doubt that the models ldquowould be politically and legally achievablerdquo171

249 A small number of respondents objected to the possibility of different fundamental rights applying in different countries of the UK For example David and Susan Radlett wrote in a joint response

ldquoif human rights have any meaning at all it is one that is or ought to be universal in nature To suggest differing levels of protection as envisaged by paras 80 and 81 is actually rather bizarre it represents the worst of both worlds and the best of neither It is or would be (perish the thought) relativist in effect if not intentionrdquo172


75

250 The public sector trade union UNISON wrote

ldquoUNISON considers that as Bills of Rights generally articulate fundamental international principles and introducing one would give positive and practical effect to the UKrsquos international obligations to uphold these rights (eg International Covenant on Civil and Political Rights) such rights should be extended to cover all of the countries that make up the UK It would be entirely appropriate for the present Commission to closely consider the constitutional implications of introducing a Bill of Rights across the countries but UNISON cannot see any reason why such universal rights should not be equally applicable to all countries in the UK so all citizens can benefit equally from themrdquo173

251 Roseanna Cunningham MSP and Minister for Community Safety and Legal Affairs argued on behalf of the Scottish Government that multiple layers of provision would be ldquofundamentally unworkablerdquo while noting that the Scottish Government would nonetheless legislate within its competence to fill any gaps it identified in fundamental rights protection

ldquoin relation to options for a UK Bill of Rights under the existing constitutional settlement that make special arrangements for matters within devolved competence I take the view that these would be fundamentally unworkable As previously noted multiple layers of provision would be likely to give rise to widespread confusion domestically and any diminution of effectiveness or commitment would risk reputational damage internationally That said if we considered it necessary (most obviously if the Human Rights Act were to be repealed) it would certainly be open to the Scottish Government to introduce Scotland-specific legislation to ensure that the fundamental rights of people in Scotland are properly protected in the context of devolved responsibilitiesrdquo174

252 Others highlighted the emerging development of different human rights policies and law pursuant to devolved competence and pointed out that devolved legislatures would continue to be able to legislate in their own way The Older Peoplersquos Commissioner for Wales advocated the model set out at paragraph 80 but also provided a caution

ldquoThe most appropriate model to follow in our view would be a Bill of Rights at a UK level covering reserved policy matters This would then allow the Welsh Government and National Assembly to pursue its own legislation

173Consultation Paper Response p 9 174 Consultation PaperResponse p 5

76

One complication however might occur in relation to the enforcement of new rights Responsibilities for judicial issues are not devolved to Wales so consideration must be given to any interface with the European Convention on Human Rights and the courts in Strasbourg in this contextrdquo175

253 The Equality and Human Rights Commission also pointed out a potential problem with the model proposed at paragraph 80

ldquoWe would have concerns about any move which would introduce a Bill of Rights which was exercisable in respect of reserved matters only such a move could lead to confusion as to who had which rights and in what circumstances depending on where they were in the UK

The Commission shares its human rights remit in Scotland with the Scottish Human Rights Commission and the remit of each is based upon whether a matter is reserved or devolved We therefore have first-hand experience of the complex interplay between the two regimes We know that there are extremely few areas where a human rights issue can be easily identified as only reserved or only devolved For example whilst the issue of human trafficking is reserved dealing with trafficking involves the Scottish Government police and court systems and therefore has a substantial devolved element In complex areas such as this a Bill of Rights that dealt with reserved matters only could lead to differing overlapping or contradictory rights none of which would promote transparency or deliver better outcomes for either individuals or public authoritiesrdquo176

Question 15 Do you have any other views on whether and if so how any UK Bill of Rights should be formulated to take account of the position in Northern Ireland Scotland or Wales

254 Few respondents expressed a view on this question separate from their views on the other questions outlined above Few respondents offered alternative models or gave definitive views on whether and the extent to which the devolution statutes might require amendment if there were to be a new instrument


77

255 One respondent Sinn Feacutein did however express a view on how a UK

instrument might be otherwise formulated to take into account the position in Northern Ireland

ldquoWe insist (a) that the UK Bill of Rights and Responsibilities will contain a non-diminution clause affirming that when applied in the North of Ireland context nothing in the Bill will have the effect of undermining or lessening human rights protections from which people living in the North benefit under international human rights instruments to which the British Government is party the current applicable ordinary law or any (forthcoming) Bill for Rights for the North of Ireland and (b) that within the North of Ireland the NI Bill of Rights will be superior to the UK Bill of Rights and Responsibilities in the event of a conflict of lawshellipThese are essential not least because the northern Bill of Rights is a treaty obligation predating the UK Bill of Rights and Responsibilities initiativerdquo177

256 Many respondents simply reiterated the need to consider carefully the current constitutional and political circumstances in Northern Ireland Scotland Wales andor the UK as a whole before recommending any change to the status quo

177Sinn Feacutein Consultation Paper Response p 11

78

Promoting a better understanding of the true scope of our obligations under the European Convention on Human Rights

257 The Commission invited views on matters falling within the Commissionrsquos remit which had not been addressed by the specific questions posed in both consultations One of the themes amongst the responses was the need for better public education on human rights issues This theme was addressed by approximately 110 respondents to both papers

258 Some 20 respondents linked their suggestion for better public education to the Commissionrsquos terms of reference which require the Commission to ldquoconsider ways to promote a better understanding of the true scope of these obligations (those under the European Convention on Human Rights) and libertiesrdquo For example the National Aids Trust said

ldquoThere is a need for Government (and other relevant parties including the Equality and Human Rights Commission) to engage in sustained work to educate the public with a view to clarifying understanding of human rights and the HRA The public needs access to sources of accurate unbiased information about the HRA to balance the myths perpetrated by some media outlets NAT believe it is of vital importance that the Commission lsquoconsider ways to promote a better understanding of the true scope of these obligations and libertiesrsquo as set out in its Terms of Referencerdquo178

259 Other respondents who highlighted the Commissionrsquos terms of reference in this context included the British Institute of Human Rights the University of East London the Discrimination Law Association the Scottish Independent Advocacy Alliance Scope the Law Society of England and Wales and the Scottish Human Rights Commission

260 Suggestions for better education on human rights issues were made by a cross-section of respondents that included those who advocated a UK Bill of Rights those who opposed such an instrument and those who were equivocal

261 There were two main ways in which respondents considered education on human rights matters might best be achieved

through increased public awareness of the way the Human Rights Act 1998 operates or

178Discussion Paper Response p 5

79

through the creation of a UK Bill of Rights

How might public awareness of human rights be improved

262 A little over three quarters of these respondents stated that there was a need for public education on human rights and thought that this should be achieved through better promotion of the Human Rights Act 1998 These respondents tended to favour retaining the status quo A small number of respondents argued that the creation of a UK Bill of Rights would result in better education of the public on human rights matters

263 Arguing in favour of better promotion of the Human Rights Act the Law Society of England and Wales said that

ldquothe Human Rights Act 1998 should be retained and should be accompanied by a programme of public education outreach and debate to enhance understanding and legitimacyrdquo179

264 Others who shared this view stated

ldquothe Government [should] stop taking any further action in recasting the Human Rights Act as a UK Bill of Rights and instead undertake an appropriate and effective programme of public education on human rights and the Human Rights Actrdquo180

ldquoIn brief from our particular standpoint we are reasonably content with the existing laws and believe that resources should not be directed to the creation of yet another massive piece of legislation but instead directed to more effective awareness and implementation of the existing lawsrdquo181

265 A small number of the respondents made particular reference to the need to educate public authorities on their obligations under the Human Rights Act The Citizens Advice Bureau said that

ldquoboth the Government and the EHRC should play central roles in active promotion of human rights standards It is particularly important that public officials have a clear and accurate understanding of what the HRA requires them to do including the positive obligations that public authorities have to protect human rightsrdquo182

266 Less than 10 respondents thought better education was needed on human rights issues and argued that a UK Bill of Rights including the process of its

179Law Society of England and Wales Discussion Paper Response p 2 180Imkaan Consultation PaperResponse p 2 181Gender Identity Research and Education Consultation PaperResponse p 1 182Consultation Paper Response p 6

80

adoption was the best way to educate the public on human rights matters The student response from the Northumbria School of Law said that

ldquothe Bill would be an opportunity to educate and inform citizens of their rights The student body concluded that any Bill of Rights which attempts to modify the UKrsquos human rightsrsquo culture would have to do so through educationrdquo183

267 Similarly Tom Hickman of Blackstone Chambers said in response to our Discussion Paper

ldquoA Bill of Rights project would have an important educative function not only in making people aware of the importance of civil and human rights but also about the importance of the constitution and the separation of power more generallyrdquo184

268 Amongst both those who favoured better education on the status quo and those who supported better education through the adoption of a UK Bill of Rights a handful of respondents stated that one way in which this might be achieved would be through the school system The student response from the Northumbria School of Law argued that

ldquothere is now an opportunity to educate the public in a positive way as to what rights they can expect to enjoy and see enforced under UK law One of the simplest ways of doing this is through schools perhaps through the provision of awareness sessions One member of the student body worked in a school where a rights and responsibilities module was delivered and he described the feedback from children aged 4-7 as very positiverdquo185

183Discussion Paper Response p 2 184Discussion Paper Response p 3 185Discussion Paper Response p 9

81

Reform of the European Court of Human Rights

269 The Commission was asked in its terms of reference to provide interim advice to the Government on the ongoing Interlaken process to reform the European Court of Human Rights ahead of and following the UKrsquos Chairmanship of the Council of Europe

270 On 28 July 2011 the Commission provided interim advice to the Government ahead of its Chairmanship The Chair of the Commission also submitted a parallel letter to Ministers on Court reform The advice set out five main recommendations for reform of the Court

1 that the Court should only ldquoaddress a limited number of cases that raise serious questions affecting the interpretation or application of the Convention and serious issues of general importancerdquo

2 that the UK Government ldquouse its Chairmanship to initiate a time-bound programme of fundamental reformrdquo

3 that ldquoa new and effective screening mechanism that allows the Court to decline to deal with cases that do not raise a serious violation of the Conventionrdquo should be established

4 that ldquothe meaning and effect of Article 41 of the Convention and the role of the Court in awarding ldquojust satisfactionrdquo should be revisited and

5 that ldquoagreement on appropriate and merit-based principles and rules and adequate resources for the selection of judicial candidates at the national level and for the appointment process at the European levelrdquo should be established

271 The Chairrsquos parallel letter presented a number of further suggestions for future consideration which had not been agreed by Commission members but which had either been suggested to them or had been raised by one or more of the members These included

1 using retired judges to determine admissibility

2 authorising officials of the Registry to take decisions on admissibility

3 requiring applications to the Court to be signed by a lawyer or NGO

82

4 enabling the Court to deliver advisory opinions

5 enabling preliminary references to be made from the highest national court

6 introducing a Statute of the Court which would allow the working practices of the Court to be changed more quickly

7 considering some form of ldquodemocratic overriderdquo or dialogue and

8 introducing subsidiarity reviews by analogy to the EU treaty

272 Although the Commission did not pose a question in either consultation on the issue of reform of the Strasbourg Court a number of respondents discussed this issue Below we summarise the views we received

Reform of the Strasbourg Court

273 Approximately 50 respondents submitted views on this issue mostly in response to the Consultation Paper

274 Approximately 40 respondents supported Court reform while the rest were equivocal or unclear on this issue There were no express objections to reform of the Strasbourg Court

275 Around one third of the respondents who supported Court reform endorsed the need for reform generally without reservation including a very small number who expressly supported some or all specific measures set out in the Commissions interim advice

276 However approximately one quarter of those advocating reform expressed concerns about the proposals in the Commissionrsquos Interim Advice or the Chairrsquos letter while a small number expressed other concerns

277 Concerns raised in connection with the Interim Advice included cautions about the impact of screening mechanisms to reduce the workload of the Court and about reforms to the process of awarding just satisfaction The AIRE Centre and others stated

ldquowe oppose proposals for a screening mechanism that would impose additional admissibility criteria designed to curtail effective access to and redress by the Court for violations of Convention rightsrdquo186

278 In addition Amnesty International UK told us

186Joint response from Amnesty International the AIRE Centre European Human RightsAdvocacy Centre Interrights International Commission of Jurists Human Rights Watch and Open Society Justice Initiative Discussion Paper Response p 3

83

ldquowe believe that permitting the Court to remit Article 41 decisions back to the relevant State may increase delays in the determination of compensation decisions and the risk of further litigation and could risk different standards being applied to awards of just satisfactionrdquo187

279 Concerns raised in connection with the Chairrsquos parallel letter included objections to any proposals to introduce a lsquodemocratic overridersquo The Law Society of England and Wales stated

ldquothe Law Society strongly opposes allowing an ECtHR decision to be overridden by the PACE and or the Committee of Ministers (CoM) Such override would undermine the rule of law and the whole point of the Convention system if member states can be let off the hookrdquo188

280 A few respondents expressed caution on Court reform for other reasons including concerns that the Courtrsquos effectiveness might be weakened by reform or scepticism about the underlying motives for reforming the Court One respondent said

ldquoI see no problem reforming and improving the European Court of Human Rights provided in the process the power of that court is not reduced and that justice is not sacrificed simply to increase the power of the local governmentsrdquo189

What reasons did respondents provide for advocating Court reform

281 Of the approximately 40 respondents who advocated Court reform about two thirds advanced the need to reduce the Courtrsquos workload or to enhance the efficiency of the Court One respondent told us that

ldquothe European Court of Human Rights is drastically over-worked and has an ever growing caseload Very real consideration must be given to a method of correcting this ever-growing problemrdquo190

282 Around one third of these respondents cited the quality of judges as a reason for reforming the Court For instance one respondent said

187Discussion Paper Response p 9 188Discussion Paper Response p 16 189Professor Dabir H Tehrani Discussion Paper Response 190Thomas Webber Discussion Paper Response p 3

84

ldquoas to reform of the Strasbourg court my own main interest is in seeing its independence reinforced and the quality of its members improvedrdquo191

283 A small number of respondents urged that the Courtrsquos role in awarding reliefjust satisfaction needed to be reformed For example Unlock Democracy said

ldquowe are also inclined to agree that the Court is not the proper forum for determining matters of reliefrdquo192

How did respondents think the Court should be reformed

284 Around one fifth of respondents discussing Court reform expressly agreed with suggestions contained in the Commissionrsquos Interim Advice either in full or on specific issues such as the introduction of a new screening mechanism

285 A small number of respondents supported specific proposals raised in the Chairrsquos letter specifically the use of advisory opinions and democratic override Approximately 10 respondents presented their own proposals for how to reform the Court A further 10 respondents considered how to improve the efficiency of the Court or appointment of judges while a very small number discussed just satisfaction or the potential for the Court to issue advisory opinions A very small number of respondents emphasised the need to ensure that the Court has adequate funding and resources in order to properly fulfil its mandate

191David Pollock Discussion Paper Response 192Unlock Democracy Discussion PaperResponse p 13

85



Annex H

Examples of Bills of Rights



Annex H1

The Institute for Public Policy Research A British Bill of Rights 1990

Reproduced with the kind permission of the Institute for Public Policy Research




Annex H2

Joint Committee on Human Rights Outline of a UK Bill of Rights and Freedoms 2008

Contains Parliamentary information licensed under the Open Parliament Licence v10 httpwwwparliamentuksite-informationcopyrightopen-parliament-licence


A Bill of Rights for the UK 105

Annex 1 Outline of a UK Bill of Rights and Freedoms

This Annex sets out an outline Bill of Rights and Freedoms The Bill broadly follows and adapts the basic structure of the Human Rights Act which created a parliamentary model of human rights protection The Bill aims to improve on that model by giving Parliament an even more central role in the overall scheme Annex 2 explains the clauses in the Outline Bill of Rights and Freedoms and how its provisions might work in practice

UK BILL OF RIGHTS AND FREEDOMS

Preamble

This Bill of Rights and Freedoms is adopted to give lasting effect to the values which the people of the United Kingdom of Great Britain and Northern Ireland consider to be fundamental

bull The rule of law the commitment to power being exercised lawfully as determined by an independent judiciary

bull Liberty the freedom from both unwarranted restrictions and basic wants

bull Democracy giving as much control as possible to individuals over the decisions which affect their lives

bull Fairness the equal right of each and every person to be treated with dignity and respect

bull Civic duty the responsibilities to each other to the communities to which we belong and to future generations

The Rights and Freedoms

1 In this Act the ldquorights and freedomsrdquo means ndash

(a) the Civil and Political Rights and Freedoms set out in Schedule 1

(b) the Fair Process Rights set out in Schedule 2

(c) the Economic and Social Rights set out in Schedule 3

(d) the Democratic Rights set out in Schedule 4

(5) the Rights of Particular Groups set out in Schedule 5

Interpretation of the Bill of Rights and Freedoms

2 Any court tribunal or other person or body interpreting this Bill of Rights and Freedoms

106 A Bill of Rights for the UK

(a) must strive to achieve the purpose of the Bill and to give practical effect to the fundamental values underpinning it as set out in the Preamble to the Bill

(b) must pay due regard to international law including international human rights law and

(c) may consider the relevant judgments of foreign and international courts and tribunals

Interpretation of legislation and common law

3 Any court tribunal or other person or body interpreting any legislation (whenever enacted) or applying the common law (whenever laid down) must so far as it is possible to do so read and give effect to the legislation or common law in a way which is compatible with the rights and freedoms in this Bill and which promotes the purpose of the Bill as set out in the Preamble

Power of Legislative Override

4 Parliament may expressly declare in an Act of Parliament that the Act or any provision in it shall operate notwithstanding anything contained in this Bill of Rights and Freedoms

Limitation of Rights

5 The rights and freedoms contained in this Bill may be subject only to such reasonable limits provided for by law as can be demonstrably justified in a society based on the values of liberty democracy fairness civic duty and the rule of law and to the extent compatible with international human rights treaties to which the UK is a party taking into account all relevant factors including

(a) the nature of the right

(b) the importance and legitimacy of the purpose of the limitation

(c) the nature and extent of the limitation

(d) the relation between the limitation and its purpose and

(e) the availability of less restrictive means to achieve the purpose

Obligations

6 (1) The legislature the executive the judiciary public authorities and any person or body in the performance of any public function must

(a) act compatibly with a right or freedom in this Bill of Rights and Freedoms and

(b) take active steps to respect protect promote and fulfil the rights and freedoms in this Bill

(2) The factors which may be taken into account in determining whether a function is a public function include

(a) the extent to which the state has assumed responsibility for the function in question

(b) the role and responsibility of the State in relation to the subject matter in question

(c) the nature and extent of the public interest in the function in question

(d) the nature and extent of any statutory power or duty in relation to the function in question

(e) the extent to which the state directly or indirectly regulates supervises and inspects the performance of the function in question

(f) the extent to which the state makes payment for the function in question

(g) whether the function involves or may involve the use of statutory coercive powers

(h) the extent of the risk that improper performance of the function might violate a right or freedom in this Bill


Impact assessments and statements of compatibility

7 (1) A member of Parliament who introduces a Bill into either House of Parliament must before Second Reading of the Bill lay before Parliament

(a) an impact assessment assessing the impact of the Bill on the rights and freedoms protected in this Bill of Rights and Freedoms and

(b) a statement of compatibility stating

(i) whether in the memberrsquos opinion the Bill is compatible with the rights and freedoms in this Bill and if so the reasons for that view and

(ii) if in the memberrsquos opinion any part of the Bill is incompatible with any right or freedom in this Bill the nature and extent of the incompatibility

(2) The obligations in sub-section (1) also apply on tabling or making of

(a) Government amendments to Bills

(b) statutory instruments

(c) Orders-in-Council

Enforcement

8 Any person or body who has a sufficient interest in the matter may bring legal proceedings in the appropriate court or tribunal concerning the alleged breach of any right or freedom in this Bill of Rights and Freedoms


Remedies

9 (1) Subject to (2) below a court may grant to any person or body whose rights or freedoms under this Bill have been violated such remedy within its powers as it considers just and appropriate and necessary to provide an effective remedy

(2) If a court is satisfied that a provision of primary legislation is incompatible with a provision of this Bill of Rights and Freedoms and cannot be interpreted compatibly it must make a declaration of incompatibility

(3) A declaration of incompatibility does not affect the validity continuing operation or enforcement of the provision in respect of which it is given

Process following declaration of incompatibility

10 (1) Within 3 months of a final declaration of incompatibility the Minister responsible for the relevant statutory provision must lay before Parliament a written statement explaining

(a) whether the Government agrees that the provision is incompatible with a right or freedom in this Bill

(b) if it disagrees its reasons for so doing

(c) if it agrees whether it proposes to remedy the incompatibility

(2) If the Government proposes to remedy the incompatibility the Minister responsible for the relevant statutory provision must within 6 months of the final declaration of incompatibility lay before Parliament a written statement explaining in detail how the incompatibility will be remedied

(3) A Minister of the Crown must within six weeks of laying a statement under subsections (1) or (2) above make a motion in both Houses to take note of the statement laid

(4) The Minister may by order (ldquoa remedial orderrdquo) make such amendments to the legislation as are necessary to remove the incompatibility

(5) The court which made the final declaration of incompatibility has the power to re-open the case in order to consider whether the incompatibility has been remedied

Relationship with European Convention on Human Rights

11 (1) Rights and freedoms in this Bill which correspond with rights guaranteed by the European Convention on Human Rights shall be interpreted as having at least the same scope as the Convention rights

(2) Nothing in this Article shall prevent rights and freedoms in this Bill being interpreted as providing more extensive protection than the corresponding Convention rights

Relationship with other existing rights

12 Nothing in this Bill of Rights and Freedoms denies the existence or restricts the scope of any other rights or freedoms recognised or conferred by common law statute or


customary international law to the extent that they are consistent with the rights and freedoms contained in this Bill

Emergencies

13 (1) No derogation from any of the rights and freedoms in this Bill shall be lawful unless a state of emergency has first been declared and confirmed by Parliament

(2) A state of emergency may be declared only when there is a public emergency threatening the life of the nation

(3) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from any right or freedom in this Bill only to the extent that the derogation is strictly required by the emergency and is consistent with the UKrsquos other international obligations

(4) Any person or body who has a sufficient interest in the matter may bring legal proceedings in the appropriate court or tribunal challenging the validity of

(a) a declaration of a state of emergency or

(b) any legislation enacted or other action taken in consequence of a state of emergency

(5) A declaration of a state of emergency and any legislation enacted or other action taken in consequence of that declaration shall be effective only

(a) prospectively from the date of the Act of Parliament making the declaration and

(b) for no more than three months from the date of the declaration

(6) No legislation enacted in consequence of a declaration of a state of emergency may permit or authorise any derogation from the non-derogable rights listed in Schedule 1

Prohibition of abuse of rights

14 Nothing in this Bill of Rights Freedoms and Responsibilities may be interpreted as implying for any person group or body any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth in this Bill or at their limitation to a greater extent than is provided for in this Bill

Parliamentary Review

15 (1) The Secretary of State for Justice shall appoint an independent panel of reviewers of the operation of this Bill of Rights and Freedoms

(2) The independent panel shall conduct a review of the first 5 years of operation of this Bill of Rights and Freedoms and lay its report before Parliament

Schedule 1 - Civil and Political Rights and Freedoms

bull Equality

bull Dignity


bull Life

bull Physical and mental integrity

bull Freedom from torture and inhuman or degrading treatment or punishment

bull Freedom from slavery and forced labour

bull Liberty

bull Private and family life home and communications

bull Freedom of thought conscience and religion

bull Freedom of expression

bull Freedom of association

bull Right of assembly and demonstration

bull Right to marry

bull Right to found a family

bull Property

bull Freedom of movement and residence

bull Right to asylum

Schedule 2 ndash Fair Process Rights

bull Rights of arrested and detained persons

bull Right to a fair criminal trial

bull Right of access to court

bull Right to legal representation

bull Right to a fair hearing

bull Right to effective remedy

bull Right of access to information

bull Right to fair and just administrative action

Schedule 3 - Economic and Social Rights

Duty of progressive realisation

The Government must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of the rights in this schedule


Duty to report to Parliament

The Government shall report annually to Parliament on the progress made during the previous year in realising the rights in this schedule

Parliament to determine eligibility

Eligibility for the rights in this schedule on grounds of nationality residence or other status shall be determined by Parliament in primary legislation subject to the rights in schedule 1

Justiciability

(1) The rights in this schedule are not enforceable by individuals against the Government or any public authority

(2) The rights in this schedule are justiciable only to the extent that they are relevant to

(a) the interpretation of other legislation or

(b) the assessment of the reasonableness of the measures taken to achieve their progressive realisation

Judicial review

When evaluating the reasonableness of the measures taken by the Government to achieve the progressive realisation of the rights in this schedule the courts shall have regard to the following relevant considerations

(a) the availability of resources

(b) the latitude inherent in a duty to achieve the realisation of the rights progressively

(c) the court has no jurisdiction to inquire into whether public money could be better spent

(d) the fact that a wide range of measures is possible to meet the Governmentrsquos obligations

(e) the availability of an alternative means of realising the rights is not of itself an indication of unreasonableness

(f) whether the measures include emergency relief for those whose needs are urgent

(g) whether the measures are discriminatory

(h) whether the measures have been effectively made known to the public

(i) whether the measures are capable of facilitating the realisation of the relevant rights

(j) whether any deprivation of existing rights is demonstrably justifiable in accordance with s 5 of this Bill (Limitation of Rights)


Health care

Everyone has the right to have access to appropriate health care services free at the point of use and within a reasonable time

No one may be refused appropriate emergency medical treatment

Education

Everyone of compulsory school age has the right to receive free full-time education suitable to their needs

Everyone has the right to have access to further education and to vocational and continuing training

Housing

Everyone has the right to adequate accommodation appropriate to their needs

Everyone is entitled to be secure in the occupancy of their home

No one may be evicted from their home without an order of a court

An adequate standard of living

Everyone is entitled to an adequate standard of living sufficient for that person and their dependents including adequate food water and clothing

Everyone has the right to social assistance including care and support in accordance with their needs

No one shall be allowed to fall into destitution

A healthy and sustainable environment

Everyone has the right to an environment that is not harmful to their health

Everyone has the right to information enabling them to assess the risk to their health from their environment

Everyone has the right to a high level of environmental protection for the benefit of present and future generations through reasonable legislative and other measures that ndash



(iii) ensure that economic development and use of natural resources are sustainable

Schedule 4 - Democratic Rights

bull Right to free and fair elections

bull Right to vote and to stand as a candidate at elections


bull Right to participate in public life

bull Citizenship

Schedule 5 - Rights of Particular Groups

bull Children

bull Minorities

bull People with disabilities

bull Victims of Crime



Annex H3

Links to Bills of Rights in other countries

Australia Australian Capital Territory Australian Capital Territory Human Rights Act 2004 httpwwwlegislationactgovauimagespdfagif

Victoria Victorian Charter of Human Rights and Responsibilities 2006 httpwwwlegislationvicgovaudominoWeb_NotesLDMSPubLawTodaynsfimgPDF

Bahamas The Constitution of The Bahamas 1973 (Chapter III) httpwwwlexbahamascombahconfundamentalrightshtm

Barbados The Constitution of Barbados 2002 (Chapter III) httpwwwoasorgdilThe_Constitution_of_Barbadospdf

Canada Canadian Charter of Rights and Freedoms 1982 httplaws-loisjusticegccaengConstpage-15html

Cyprus The Constitution of the Republic of Cyprus 1960 (Part II) httpwwwkyprosorgConstitutionEnglish

Denmark The Constitution of Denmark 1953 (Part VIII) httpwwwservatunibechiclda00000_html

Finland The Constitution of Finland 2000 (Chapter 2) httpwwwfinlexfifilakikaannokset1999en19990731pdf

France Declaration of the Rights of Man and the Citizen 1789 httpwwwconstitutionorgfrfr_drmhtm

Germany Basic Law for the Federal Republic of Germany (Grundgesetz) 1949 (Chapter 1) httpwwwiuscomporgglastatutesGGhtm

Gibraltar Gibraltar Constitution Order 2006 (Chapter I) httpwwwgibraltarlawsgovgiconstitutionphp

Hong Kong Hong Kong Bill of Rights 1991 httphkhrmorghkenglishlaweng_boro1html


India The Constitution of India 1950 (Part III) httpwwwindiagovingovtconstitutions_indiaphpid=2

Ireland The Constitution of Ireland (Bunreacht na hEacuteireann) 1937 (Articles 40- 44) wwwconstitutionie

Jamaica The Charter of Rights (Constitutional Amendment) Act 2011 (Chapter III) httpwwwjaparliamentgovjmattachments341_The20Charter20of20Fundamental 20Rights20and20Freedoms20(Constitutional20Amendment)20Act202011pdf

Namibia The Constitution of the Republic of Namibia 1990 (Chapter 3) httpwwwgrnnetgovna

New Zealand New Zealand Bill of Rights Act 1990 httpwwwlegislationgovtnzactpublic19900109latestDLM224792html

Norway The Constitution of Norway 1814 httpwwwstortingetnoenIn-EnglishAbout-the-StortingThe-ConstitutionThe-Constitution

South Africa The Constitution of South Africa 1996 (Chapter 2) httpwwwinfogovzadocumentsconstitution199696cons2htm

Spain The Constitution of Spain 1978 (Part 1) httpwwwlamoncloagobesIDIOMAS9EspanaLeyFundamentalindexhtm

Sweden The Instrument of Government (Chapter 2) httpwwwriksdagenseenDocuments-and-lawsLawsThe-Constitution

Trinidad and Tobago The Constitution of the Republic of Trinidad and Tobago (Chapter 1) httppdbageorgetowneduConstitutionsTrinidadtrinidad76html

USA United States Bill of Rights 1789 httpwwwarchivesgovexhibitschartersbill_of_rights_transcripthtml

Virginia Virginia Declaration of Rights 1776 httpwwwconstitutionorgbcpvirg_dorhtm


Annex I

The European Convention on Human Rights

Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No 11 and 14 Published with the permission of the Council of Europe


European Treaty Series - No 5

Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No 11 and 14

Rome 4XI1950

Text amended by the provisions of Protocol No 14 (CETS No 194) as from the date of its entry into force on 1 June 2010 The text of the Convention had been previously amended according to the provisions of Protocol No 3 (ETS No 45) which entered into force on 21 September 1970 of Protocol No 5 (ETS No 55) which entered into force on 20 December 1971 and of Protocol No 8 (ETS No 118) which entered into force on 1 January 1990 and comprised also the text of Protocol No 2 (ETS No 44) which in accordance with Article 5 paragraph 3 thereof had been an integral part of the Convention since its entry into force on 21 September 1970 All provisions which had been amended or added by these Protocols were replaced by Protocol No 11 (ETS No 155) as from the date of its entry into force on 1 November 1998 As from that date Protocol No 9 (ETS No 140) which entered into force on 1 October 1994 was repealed and Protocol No 10 (ETS no 146) had lost its purpose


The governments signatory hereto being members of the Council of Europe

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948

Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared

Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms

Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend

Being resolved as the governments of European countries which are like-minded and have a common heritage of political traditions ideals freedom and the rule of law to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration

Have agreed as follows

Article 1 ndash Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention

Section I ndash Rights and freedoms

Article 2 ndash Right to life

1 Everyones right to life shall be protected by law No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law

2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary

a in defence of any person from unlawful violence

b in order to effect a lawful arrest or to prevent the escape of a person lawfully detained

c in action lawfully taken for the purpose of quelling a riot or insurrection

Article 3 ndash Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment

Article 4 ndash Prohibition of slavery and forced labour

1 No one shall be held in slavery or servitude

2 No one shall be required to perform forced or compulsory labour

3 For the purpose of this article the term ldquoforced or compulsory labourrdquo shall not include

a any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention


b any service of a military character or in case of conscientious objectors in countries where they are recognised service exacted instead of compulsory military service

c any service exacted in case of an emergency or calamity threatening the life or well-being of the community

d any work or service which forms part of normal civic obligations

Article 5 ndash Right to liberty and security

1 Everyone has the right to liberty and security of person No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

a the lawful detention of a person after conviction by a competent court

b the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law

c the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so

d the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority

e the lawful detention of persons for the prevention of the spreading of infectious diseases of persons of unsound mind alcoholics or drug addicts or vagrants

f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition

2 Everyone who is arrested shall be informed promptly in a language which he understands of the reasons for his arrest and of any charge against him

3 Everyone arrested or detained in accordance with the provisions of paragraph 1c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial Release may be conditioned by guarantees to appear for trial

4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful

5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation

Article 6 ndash Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals public order or national security in a democratic society where the interests of juveniles or the protection of the private life of the parties so require or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice

2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law


3 Everyone charged with a criminal offence has the following minimum rights

a to be informed promptly in a language which he understands and in detail of the nature and cause of the accusation against him

b to have adequate time and facilities for the preparation of his defence

c to defend himself in person or through legal assistance of his own choosing or if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require

d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him

e to have the free assistance of an interpreter if he cannot understand or speak the language used in court

Article 7 ndash No punishment without law

1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed

2 This article shall not prejudice the trial and punishment of any person for any act or omission which at the time when it was committed was criminal according to the general principles of law recognised by civilised nations

Article 8 ndash Right to respect for private and family life

1 Everyone has the right to respect for his private and family life his home and his correspondence

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security public safety or the economic well-being of the country for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others

Article 9 ndash Freedom of thought conscience and religion

1 Everyone has the right to freedom of thought conscience and religion this right includes freedom to change his religion or belief and freedom either alone or in community with others and in public or private to manifest his religion or belief in worship teaching practice and observance

2 Freedom to manifest ones religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety for the protection of public order health or morals or for the protection of the rights and freedoms of others

Article 10 ndash Freedom of expression

1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises

2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the


reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary

Article 11 ndash Freedom of assembly and association

1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others including the right to form and to join trade unions for the protection of his interests

2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces of the police or of the administration of the State

Article 12 ndash Right to marry

Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise of this right

Article 13 ndash Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity

Article 14 ndash Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex race colour language religion political or other opinion national or social origin association with a national minority property birth or other status

Article 15 ndash Derogation in time of emergency

1 In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation provided that such measures are not inconsistent with its other obligations under international law

2 No derogation from Article 2 except in respect of deaths resulting from lawful acts of war or from Articles 3 4 (paragraph 1) and 7 shall be made under this provision

3 Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed

Article 16 ndash Restrictions on political activity of aliens

Nothing in Articles 10 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens

Article 17 ndash Prohibition of abuse of rights

Nothing in this Convention may be interpreted as implying for any State group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention

Article 18 ndash Limitation on use of restrictions on rights


The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed

Section II ndash European Court of Human Rights

Article 19 ndash Establishment of the Court

To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto there shall be set up a European Court of Human Rights hereinafter referred to as the Court It shall function on a permanent basis

Article 20 ndash Number of judges

The Court shall consist of a number of judges equal to that of the High Contracting Parties

Article 21 ndash Criteria for office

1 The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence

2 The judges shall sit on the Court in their individual capacity

3 During their term of office the judges shall not engage in any activity which is incompatible with their independence impartiality or with the demands of a full-time office all questions arising from the application of this paragraph shall be decided by the Court

Article 22 ndash Election of judges 13

The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party

Article 23 ndash Terms of office and dismissal 14

1 The judges shall be elected for a period of nine years They may not be re-elected

2 The terms of office of judges shall expire when they reach the age of 70

3 The judges shall hold office until replaced They shall however continue to deal with such cases as they already have under consideration

4 No judge may be dismissed from office unless the other judges decide by a majority of two-thirds that that judge has ceased to fulfil the required conditions

Article 24 ndash Registry and rapporteurs 2

1 The Court shall have a registry the functions and organisation of which shall be laid down in the rules of the Court

2 When sitting in a single-judge formation the Court shall be assisted by rapporteurs who shall function under the authority of the President of the Court They shall form part of the Courtrsquos registry

Article 25 ndash Plenary Court 15

The plenary Court shall

a elect its President and one or two Vice-Presidents for a period of three years they may be re-elected

b set up Chambers constituted for a fixed period of time


c elect the Presidents of the Chambers of the Court they may be re-elected

d adopt the rules of the Court

e elect the Registrar and one or more Deputy Registrars

f make any request under Article 26 paragraph 2

Article 26 ndash Single-judge formation committees Chambers and Grand Chamber 1

1 To consider cases brought before it the Court shall sit in a single-judge formation in committees of three judges in Chambers of seven judges and in a Grand Chamber of seventeen judges The Courtrsquos Chambers shall set up committees for a fixed period of time

2 At the request of the plenary Court the Committee of Ministers may by a unanimous decision and for a fixed period reduce to five the number of judges of the Chambers

3 When sitting as a single judge a judge shall not examine any application against the High Contracting Party in respect of which that judge has been elected

4 There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned If there is none or if that judge is unable to sit a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge

5 The Grand Chamber shall also include the President of the Court the Vice-Presidents the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court When a case is referred to the Grand Chamber under Article 43 no judge from the Chamber which rendered the judgment shall sit in the Grand Chamber with the exception of the President of the Chamber and the judge who sat in respect of the High Contracting Party concerned

Article 27 ndash Competence of single judges 16

1 A single judge may declare inadmissible or strike out of the Courtrsquos list of cases an application submitted under Article 34 where such a decision can be taken without further examination

2 The decision shall be final

3 If the single judge does not declare an application inadmissible or strike it out that judge shall forward it to a committee or to a Chamber for further examination

Article 28 ndash Competence of committees 17

1 In respect of an application submitted under Article 34 a committee may by a unanimous vote

a declare it inadmissible or strike it out of its list of cases where such decision can be taken without further examination or

b declare it admissible and render at the same time a judgment on the merits if the underlying question in the case concerning the interpretation or the application of the Convention or the Protocols thereto is already the subject of well-established case-law of the Court

2 Decisions and judgments under paragraph 1 shall be final

3 If the judge elected in respect of the High Contracting Party concerned is not a member of the committee the committee may at any stage of the proceedings invite that judge to take the place of one of the members of the committee having regard to all relevant factors including whether that Party has contested the application of the procedure under paragraph 1b

Article 29 ndash Decisions by Chambers on admissibility and merits 18


1 If no decision is taken under Article 27 or 28 or no judgment rendered under Article 28 a Chamber shall decide on the admissibility and merits of individual applications submitted under Article 34 The decision on admissibility may be taken separately

2 A Chamber shall decide on the admissibility and merits of inter-State applications submitted under Article 33 The decision on admissibility shall be taken separately unless the Court in exceptional cases decides otherwise

Article 30 ndash Relinquishment of jurisdiction to the Grand Chamber

Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court the Chamber may at any time before it has rendered its judgment relinquish jurisdiction in favour of the Grand Chamber unless one of the parties to the case objects

Article 31 ndash Powers of the Grand Chamber 19

The Grand Chamber shall

a determine applications submitted either under Article 33 or Article 34 when a Chamber has relinquished jurisdiction under Article 30 or when the case has been referred to it under Article 43

b decide on issues referred to the Court by the Committee of Ministers in accordance with Article 46 paragraph 4 and

c consider requests for advisory opinions submitted under Article 47

Article 32 ndash Jurisdiction of the Court 1

1 The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33 34 46 and 47

2 In the event of dispute as to whether the Court has jurisdiction the Court shall decide

Article 33 ndash Inter-State cases

Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party

Article 34 ndash Individual applications

The Court may receive applications from any person non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto The High Contracting Parties undertake not to hinder in any way the effective exercise of this right

Article 35 ndash Admissibility criteria 1

1 The Court may only deal with the matter after all domestic remedies have been exhausted according to the generally recognised rules of international law and within a period of six months from the date on which the final decision was taken

2 The Court shall not deal with any application submitted under Article 34 that

a is anonymous or


b is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information

3 The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that

a the application is incompatible with the provisions of the Convention or the Protocols thereto manifestly ill-founded or an abuse of the right of individual application or

b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal

4 The Court shall reject any application which it considers inadmissible under this Article It may do so at any stage of the proceedings

Article 36 ndash Third party intervention 20

1 In all cases before a Chamber or the Grand Chamber a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings

2 The President of the Court may in the interest of the proper administration of justice invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings

3 In all cases before a Chamber or the Grand Chamber the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings

Article 37 ndash Striking out applications

1 The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

a the applicant does not intend to pursue his application or

b the matter has been resolved or

c for any other reason established by the Court it is no longer justified to continue the examination of the application

However the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires

2 The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course

Article 38 ndash Examination of the case 21

The Court shall examine the case together with the representatives of the parties and if need be undertake an investigation for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities


Article 39 ndash Friendly settlements 22

1 At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto

2 Proceedings conducted under paragraph 1 shall be confidential

3 If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached

4 This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of the terms of the friendly settlement as set out in the decision

Article 40 ndash Public hearings and access to documents

1 Hearings shall be in public unless the Court in exceptional circumstances decides otherwise

2 Documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise

Article 41 ndash Just satisfaction

If the Court finds that there has been a violation of the Convention or the protocols thereto and if the internal law of the High Contracting Party concerned allows only partial reparation to be made the Court shall if necessary afford just satisfaction to the injured party

Article 42 ndash Judgments of Chambers

Judgments of Chambers shall become final in accordance with the provisions of Article 44 paragraph 2

Article 43 ndash Referral to the Grand Chamber

1 Within a period of three months from the date of the judgment of the Chamber any party to the case may in exceptional cases request that the case be referred to the Grand Chamber

2 A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto or a serious issue of general importance

3 If the panel accepts the request the Grand Chamber shall decide the case by means of a judgment

Article 44 ndash Final judgments

1 The judgment of the Grand Chamber shall be final

2 The judgment of a Chamber shall become final

a when the parties declare that they will not request that the case be referred to the Grand Chamber or

b three months after the date of the judgment if reference of the case to the Grand Chamber has not been requested or

c when the panel of the Grand Chamber rejects the request to refer under Article 43

3 The final judgment shall be published

Article 45 ndash Reasons for judgments and decisions


1 Reasons shall be given for judgments as well as for decisions declaring applications admissible or

inadmissible 2 If a judgment does not represent in whole or in part the unanimous opinion of the judges any judge

shall be entitled to deliver a separate opinion Article 46 ndash Binding force and execution of judgments 23 1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which

they are parties 2 The final judgment of the Court shall be transmitted to the Committee of Ministers which shall

supervise its execution 3 If the Committee of Ministers considers that the supervision of the execution of a final judgment is

hindered by a problem of interpretation of the judgment it may refer the matter to the Court for a ruling on the question of interpretation A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Committee

4 If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final

judgment in a case to which it is a party it may after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1

5 If the Court finds a violation of paragraph 1 it shall refer the case to the Committee of Ministers for

consideration of the measures to be taken If the Court finds no violation of paragraph 1 it shall refer the case to the Committee of Ministers which shall close its examination of the case

Article 47 ndash Advisory opinions 1 The Court may at the request of the Committee of Ministers give advisory opinions on legal questions

concerning the interpretation of the Convention and the protocols thereto 2 Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms

defined in Section I of the Convention and the protocols thereto or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention

3 Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the Committee

Article 48 ndash Advisory jurisdiction of the Court The Court shall decide whether a request for an advisory opinion submitted by the Committee of

Ministers is within its competence as defined in Article 47 Article 49 ndash Reasons for advisory opinions 1 Reasons shall be given for advisory opinions of the Court 2 If the advisory opinion does not represent in whole or in part the unanimous opinion of the judges any

judge shall be entitled to deliver a separate opinion 3 Advisory opinions of the Court shall be communicated to the Committee of Ministers Article 50 ndash Expenditure on the Court The expenditure on the Court shall be borne by the Council of Europe


Article 51 ndash Privileges and immunities of judges The judges shall be entitled during the exercise of their functions to the privileges and immunities

provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder

Section III ndash Miscellaneous provisions Article 52 ndash Inquiries by the Secretary General On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party

shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention

Article 53 ndash Safeguard for existing human rights Nothing in this Convention shall be construed as limiting or derogating from any of the human rights

and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party

Article 54 ndash Powers of the Committee of Ministers Nothing in this Convention shall prejudice the powers conferred on the Committee of Ministers by the

Statute of the Council of Europe Article 55 ndash Exclusion of other means of dispute settlement The High Contracting Parties agree that except by special agreement they will not avail themselves of

treaties conventions or declarations in force between them for the purpose of submitting by way of petition a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention

Article 56 ndash Territorial application 1 Any State may at the time of its ratification or at any time thereafter declare by notification addressed to

the Secretary General of the Council of Europe that the present Convention shall subject to paragraph 4 of this Article extend to all or any of the territories for whose international relations it is responsible

2 The Convention shall extend to the territory or territories named in the notification as from the thirtieth

day after the receipt of this notification by the Secretary General of the Council of Europe 3 The provisions of this Convention shall be applied in such territories with due regard however to local

requirements 4 Any State which has made a declaration in accordance with paragraph 1 of this article may at any time

thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals non-governmental organisations or groups of individuals as provided by Article 34 of the Convention

Article 57 ndash Reservations 1 Any State may when signing this Convention or when depositing its instrument of ratification make a

reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision Reservations of a general character shall not be permitted under this article

2 Any reservation made under this article shall contain a brief statement of the law concerned Article 58 ndash Denunciation


1 A High Contracting Party may denounce the present Convention only after the expiry of five years from

the date on which it became a party to it and after six months notice contained in a notification addressed to the Secretary General of the Council of Europe who shall inform the other High Contracting Parties

2 Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its

obligations under this Convention in respect of any act which being capable of constituting a violation of such obligations may have been performed by it before the date at which the denunciation became effective

3 Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to

be a Party to this Convention under the same conditions 4 The Convention may be denounced in accordance with the provisions of the preceding paragraphs in

respect of any territory to which it has been declared to extend under the terms of Article 56 Article 59 ndash Signature and ratification 24 1 This Convention shall be open to the signature of the members of the Council of Europe It shall be

ratified Ratifications shall be deposited with the Secretary General of the Council of Europe 2 The European Union may accede to this Convention 3 The present Convention shall come into force after the deposit of ten instruments of ratification 4 As regards any signatory ratifying subsequently the Convention shall come into force at the date of the

deposit of its instrument of ratification 5 The Secretary General of the Council of Europe shall notify all the members of the Council of Europe

of the entry into force of the Convention the names of the High Contracting Parties who have ratified it and the deposit of all instruments of ratification which may be effected subsequently

Done at Rome this 4th day of November 1950 in English and French both texts being equally

authentic in a single copy which shall remain deposited in the archives of the Council of Europe The Secretary General shall transmit certified copies to each of the signatories



Contains Public Sector information licensed under the Open Government Licence v10 httpwwwnationalarchivesgovukdocopen-government-licence

Annex J

Changes to legislation There are outstanding changes not yet made by the legislationgovukeditorial team to Human Rights Act 1998 Any changes that have already been made by the team

appear in the content and are referenced with annotations (See end of Document for details)

Human Rights Act 19981998 CHAPTER 42

An Act to give further effect to rights and freedoms guaranteed under the EuropeanConvention on Human Rights to make provision with respect to holders of certainjudicial offices who become judges of the European Court of Human Rights and forconnected purposes [9th November 1998]

Be it enacted by the Queenrsquos most Excellent Majesty by and with the advice and consent of theLords Spiritual and Temporal and Commons in this present Parliament assembled and by theauthority of the same as followsmdash

Annotations

Extent InformationE1 For the extent of this Act outside the UK see s 22(6)(7)

Modifications etc (not altering text)C1 Act certain functions of the Secretary of State transferred to the Lord Chancellor (26112001) by SI

20013500 arts 3 4 Sch 1 para 5C2 Act (except ss 5 10 18 19 and Sch 4) Functions of the Lord Chancellor transferred to the Secretary

of State and all property rights and liabilities to which the Lord Chancellor is entitled or subject toin connection with any such function transferred to the Secretary of State for Constitutional Affairs(1982003) by SI 20031887 art 4 Sch 1

Introduction

1 The Convention Rights

(1) In this Act ldquothe Convention rightsrdquo means the rights and fundamental freedoms setout inmdash

(a) Articles 2 to 12 and 14 of the Convention(b) Articles 1 to 3 of the First Protocol and(c) [F1Article 1 of the Thirteenth Protocol]

2 Human Rights Act 1998 (c 42)Document Generated 2012-09-16



as read with Articles 16 to 18 of the Convention

(2) Those Articles are to have effect for the purposes of this Act subject to any designatedderogation or reservation (as to which see sections 14 and 15)

(3) The Articles are set out in Schedule 1

(4) The [F2Secretary of State] may by order make such amendments to this Act as heconsiders appropriate to reflect the effect in relation to the United Kingdom of aprotocol

(5) In subsection (4) ldquoprotocolrdquo means a protocol to the Conventionmdash(a) which the United Kingdom has ratified or(b) which the United Kingdom has signed with a view to ratification

(6) No amendment may be made by an order under subsection (4) so as to come into forcebefore the protocol concerned is in force in relation to the United Kingdom

Annotations

Amendments (Textual)F1 Words in s 1(1)(c) substituted (2262004) by The Human Rights Act 1998 (Amendment) Order 2004

(S I 20041574) art 2(1)F2 Words in s 1 substituted (1982003) by The Secretary of State for Constitutional Affairs Order 2003

(S I 20031887) art 9 Sch 2 para 10(1)

2 Interpretation of Convention rights

(1) A court or tribunal determining a question which has arisen in connection with aConvention right must take into account anymdash

(a) judgment decision declaration or advisory opinion of the European Court ofHuman Rights

(b) opinion of the Commission given in a report adopted under Article 31 of theConvention

(c) decision of the Commission in connection with Article 26 or 27(2) of theConvention or

(d) decision of the Committee of Ministers taken under Article 46 of theConvention

whenever made or given so far as in the opinion of the court or tribunal it is relevantto the proceedings in which that question has arisen

(2) Evidence of any judgment decision declaration or opinion of which account mayhave to be taken under this section is to be given in proceedings before any court ortribunal in such manner as may be provided by rules

(3) In this section ldquorulesrdquo means rules of court or in the case of proceedings before atribunal rules made for the purposes of this sectionmdash

(a) by F3[F4the Lord Chancellor or] the Secretary of State in relation to anyproceedings outside Scotland

(b) by the Secretary of State in relation to proceedings in Scotland or(c) by a Northern Ireland department in relation to proceedings before a tribunal

in Northern Irelandmdash

Human Rights Act 1998 (c 42)Document Generated 2012-09-16

3



(i) which deals with transferred matters and(ii) for which no rules made under paragraph (a) are in force

Annotations

Amendments (Textual)F3 Words in s 2(3)(a) repealed (1982003) by The Secretary of State for Constitutional Affairs Order

2003 (S I 20031887) art 9 Sch 2 para 10(2)F4 Words in s 2(3)(a) inserted (1212006) by The Transfer of Functions (Lord Chancellor and Secretary

of State) Order 2005 (SI 20053429) art 8 Sch para 3

Modifications etc (not altering text)C3 S 2(3)(a) functions of the Secretary of State to be exercisable concurrently with the Lord Chancellor

(1212006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (SI20053429) art 3(2) (with arts 4 5)

Legislation

3 Interpretation of legislation

(1) So far as it is possible to do so primary legislation and subordinate legislation mustbe read and given effect in a way which is compatible with the Convention rights

(2) This sectionmdash(a) applies to primary legislation and subordinate legislation whenever enacted(b) does not affect the validity continuing operation or enforcement of any

incompatible primary legislation and(c) does not affect the validity continuing operation or enforcement of any

incompatible subordinate legislation if (disregarding any possibility ofrevocation) primary legislation prevents removal of the incompatibility

4 Declaration of incompatibility

(1) Subsection (2) applies in any proceedings in which a court determines whether aprovision of primary legislation is compatible with a Convention right

(2) If the court is satisfied that the provision is incompatible with a Convention right itmay make a declaration of that incompatibility

(3) Subsection (4) applies in any proceedings in which a court determines whether aprovision of subordinate legislation made in the exercise of a power conferred byprimary legislation is compatible with a Convention right

(4) If the court is satisfiedmdash(a) that the provision is incompatible with a Convention right and(b) that (disregarding any possibility of revocation) the primary legislation

concerned prevents removal of the incompatibilityit may make a declaration of that incompatibility

(5) In this section ldquocourtrdquo meansmdash[F5(a) the Supreme Court]




(b) the Judicial Committee of the Privy Council(c) the [F6Court Martial Appeal Court] (d) in Scotland the High Court of Justiciary sitting otherwise than as a trial court

or the Court of Session(e) in England and Wales or Northern Ireland the High Court or the Court of

Appeal[F7(f) the Court of Protection in any matter being dealt with by the President of the

Family Division the Vice-Chancellor or a puisne judge of the High Court]

(6) A declaration under this section (ldquoa declaration of incompatibilityrdquo)mdash(a) does not affect the validity continuing operation or enforcement of the

provision in respect of which it is given and(b) is not binding on the parties to the proceedings in which it is made

Annotations

Amendments (Textual)F5 S 4(5)(a) substituted (1102009) by Constitutional Reform Act 2005 (c 4) ss 40 148 Sch 9 para

66(2) SI 20091604 art 2(d)F6 Words in s 4(5)(c) substituted (2832009 for certain purposes and 31102009 otherwise) by Armed

Forces Act 2006 (c 52) ss 378 383 Sch 16 para 156 SI 2009812 art 3 (with transitionalprovisions in SI 20091059) SI 20091167 art 4

F7 S 4(5)(f) inserted (1102007) by Mental Capacity Act 2005 (c 9) ss 67(1) 68(1)-(3) Sch 6 para43 (with ss 27 28 29 62) SI 20071897 art 2(1)(c)(d)

5 Right of Crown to intervene

(1) Where a court is considering whether to make a declaration of incompatibility theCrown is entitled to notice in accordance with rules of court

(2) In any case to which subsection (1) appliesmdash(a) a Minister of the Crown (or a person nominated by him)(b) a member of the Scottish Executive(c) a Northern Ireland Minister(d) a Northern Ireland department

is entitled on giving notice in accordance with rules of court to be joined as a partyto the proceedings

(3) Notice under subsection (2) may be given at any time during the proceedings

(4) A person who has been made a party to criminal proceedings (other than in Scotland)as the result of a notice under subsection (2) may with leave appeal to the [F8SupremeCourt] against any declaration of incompatibility made in the proceedings

(5) In subsection (4)mdashldquocriminal proceedingsrdquo includes all proceedings before the [F9Court Martial

Appeal Court] andldquoleaverdquo means leave granted by the court making the declaration of

incompatibility or by the [F10Supreme Court]


5



Annotations

Amendments (Textual)F8 Words in s 5(4) substituted (1102009) by Constitutional Reform Act 2005 (c 4) ss 40 148 Sch 9

para 66(3) SI 20091604 art 2(d)F9 Words in s 5(5) substituted (2832009 for certain purposes and 31102009 otherwise) by Armed


F10 Words in s 5(5) substituted (1102009) by Constitutional Reform Act 2005 (c 4) ss 40 148 Sch 9para 66(3) SI 20091604 art 2(d)

Public authorities

6 Acts of public authorities

(1) It is unlawful for a public authority to act in a way which is incompatible with aConvention right

(2) Subsection (1) does not apply to an act ifmdash(a) as the result of one or more provisions of primary legislation the authority

could not have acted differently or(b) in the case of one or more provisions of or made under primary legislation

which cannot be read or given effect in a way which is compatible with theConvention rights the authority was acting so as to give effect to or enforcethose provisions

(3) In this section ldquopublic authorityrdquo includesmdash(a) a court or tribunal and(b) any person certain of whose functions are functions of a public nature

but does not include either House of Parliament or a person exercising functions inconnection with proceedings in Parliament

(4) F11

(5) In relation to a particular act a person is not a public authority by virtue only ofsubsection (3)(b) if the nature of the act is private

(6) ldquoAn actrdquo includes a failure to act but does not include a failure tomdash(a) introduce in or lay before Parliament a proposal for legislation or(b) make any primary legislation or remedial order

Annotations

Amendments (Textual)F11 S 6(4) repealed (1102009) by Constitutional Reform Act 2005 (c 4) ss 40 146 148 Sch 9 para

66(4) Sch 18 Pt 5 SI 20091604 art 2(d)(f)

Modifications etc (not altering text)C4 S 6(1) applied (2102000) by 1999 c 33 ss 65(2) 170(4) SI 20002444 art 2 Sch 1 (subject to

transitional provisions in arts 3 4 Sch 2)




C5 S 6(3)(b) modified (1122008 with exception in art 2(2) of commencing SI) by Health and SocialCare Act 2008 (c 14) ss 145(1)-(4) 170 (with s 145(5)) SI 20082994 art 2(1)

7 Proceedings

(1) A person who claims that a public authority has acted (or proposes to act) in a waywhich is made unlawful by section 6(1) maymdash

(a) bring proceedings against the authority under this Act in the appropriate courtor tribunal or

(b) rely on the Convention right or rights concerned in any legal proceedingsbut only if he is (or would be) a victim of the unlawful act

(2) In subsection (1)(a) ldquoappropriate court or tribunalrdquo means such court or tribunal asmay be determined in accordance with rules and proceedings against an authorityinclude a counterclaim or similar proceeding

(3) If the proceedings are brought on an application for judicial review the applicant isto be taken to have a sufficient interest in relation to the unlawful act only if he is orwould be a victim of that act

(4) If the proceedings are made by way of a petition for judicial review in Scotland theapplicant shall be taken to have title and interest to sue in relation to the unlawful actonly if he is or would be a victim of that act

(5) Proceedings under subsection (1)(a) must be brought before the end ofmdash(a) the period of one year beginning with the date on which the act complained

of took place or(b) such longer period as the court or tribunal considers equitable having regard

to all the circumstancesbut that is subject to any rule imposing a stricter time limit in relation to the procedurein question

(6) In subsection (1)(b) ldquolegal proceedingsrdquo includesmdash(a) proceedings brought by or at the instigation of a public authority and(b) an appeal against the decision of a court or tribunal

(7) For the purposes of this section a person is a victim of an unlawful act only if hewould be a victim for the purposes of Article 34 of the Convention if proceedings werebrought in the European Court of Human Rights in respect of that act

(8) Nothing in this Act creates a criminal offence

(9) In this section ldquorulesrdquo meansmdash(a) in relation to proceedings before a court or tribunal outside Scotland rules

made by F12[F13the Lord Chancellor or] the Secretary of State for the purposesof this section or rules of court

(b) in relation to proceedings before a court or tribunal in Scotland rules madeby the Secretary of State for those purposes

(c) in relation to proceedings before a tribunal in Northern Irelandmdash(i) which deals with transferred matters and

(ii) for which no rules made under paragraph (a) are in forcerules made by a Northern Ireland department for those purposes


7



and includes provision made by order under section 1 of the M1Courts and LegalServices Act 1990

(10) In making rules regard must be had to section 9

(11) The Minister who has power to make rules in relation to a particular tribunal may to theextent he considers it necessary to ensure that the tribunal can provide an appropriateremedy in relation to an act (or proposed act) of a public authority which is (or wouldbe) unlawful as a result of section 6(1) by order add tomdash

(a) the relief or remedies which the tribunal may grant or(b) the grounds on which it may grant any of them

(12) An order made under subsection (11) may contain such incidental supplementalconsequential or transitional provision as the Minister making it considers appropriate

(13) ldquoThe Ministerrdquo includes the Northern Ireland department concerned

Annotations




Modifications etc (not altering text)C6 S 7 amended (2102000) by Regulation of Investigatory Powers Act 2000 (c 23) ss 65(2)(a) 83

(with s 82(3) SI 20002543 art 3C7 S 7 referred to (1132005) by Prevention of Terrorism Act 2005 ( c 2) s 11(2)C8 S 7(9)(a) functions of the Secretary of State to be exercisable concurrently with the Lord Chancellor


C9 S 7(11) functions of the Secretary of State to be exercisable concurrently with the Lord Chancellor(1212006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (SI20053429) art 3(2) (with arts 4 5)

Marginal CitationsM1 1990 c 41

8 Judicial remedies

(1) In relation to any act (or proposed act) of a public authority which the court finds is(or would be) unlawful it may grant such relief or remedy or make such order withinits powers as it considers just and appropriate

(2) But damages may be awarded only by a court which has power to award damages orto order the payment of compensation in civil proceedings

(3) No award of damages is to be made unless taking account of all the circumstancesof the case includingmdash

(a) any other relief or remedy granted or order made in relation to the act inquestion (by that or any other court) and




(b) the consequences of any decision (of that or any other court) in respect ofthat act

the court is satisfied that the award is necessary to afford just satisfaction to the personin whose favour it is made

(4) In determiningmdash(a) whether to award damages or(b) the amount of an award

the court must take into account the principles applied by the European Court ofHuman Rights in relation to the award of compensation under Article 41 of theConvention

(5) A public authority against which damages are awarded is to be treatedmdash(a) in Scotland for the purposes of section 3 of the M2Law Reform (Miscellaneous

Provisions) (Scotland) Act 1940 as if the award were made in an action ofdamages in which the authority has been found liable in respect of loss ordamage to the person to whom the award is made

(b) for the purposes of the M3Civil Liability (Contribution) Act 1978 as liable inrespect of damage suffered by the person to whom the award is made

(6) In this sectionmdashldquocourtrdquo includes a tribunalldquodamagesrdquo means damages for an unlawful act of a public authority andldquounlawfulrdquo means unlawful under section 6(1)

Annotations

Marginal CitationsM2 1940 c 42M3 1978 c 47

9 Judicial acts

(1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought onlymdash(a) by exercising a right of appeal(b) on an application (in Scotland a petition) for judicial review or(c) in such other forum as may be prescribed by rules

(2) That does not affect any rule of law which prevents a court from being the subjectof judicial review

(3) In proceedings under this Act in respect of a judicial act done in good faith damagesmay not be awarded otherwise than to compensate a person to the extent required byArticle 5(5) of the Convention

(4) An award of damages permitted by subsection (3) is to be made against the Crown butno award may be made unless the appropriate person if not a party to the proceedingsis joined

(5) In this sectionmdashldquoappropriate personrdquo means the Minister responsible for the court

concerned or a person or government department nominated by him


9



ldquocourtrdquo includes a tribunalldquojudgerdquo includes a member of a tribunal a justice of the peace [F14(or in

Northern Ireland a lay magistrate)] and a clerk or other officer entitled toexercise the jurisdiction of a court

ldquojudicial actrdquo means a judicial act of a court and includes an act done onthe instructions or on behalf of a judge and

ldquorulesrdquo has the same meaning as in section 7(9)

Annotations

Amendments (Textual)F14 Words in definition s 9(5) inserted (NI)(142005) by 2002 c 26 s 10(6) Sch 4 para 39 SR

2005109 art 2 Sch

Remedial action

10 Power to take remedial action

(1) This section applies ifmdash(a) a provision of legislation has been declared under section 4 to be incompatible

with a Convention right and if an appeal liesmdash(i) all persons who may appeal have stated in writing that they do not

intend to do so(ii) the time for bringing an appeal has expired and no appeal has been

brought within that time or(iii) an appeal brought within that time has been determined or abandoned

or(b) it appears to a Minister of the Crown or Her Majesty in Council that having

regard to a finding of the European Court of Human Rights made after thecoming into force of this section in proceedings against the United Kingdoma provision of legislation is incompatible with an obligation of the UnitedKingdom arising from the Convention

(2) If a Minister of the Crown considers that there are compelling reasons for proceedingunder this section he may by order make such amendments to the legislation as heconsiders necessary to remove the incompatibility

(3) If in the case of subordinate legislation a Minister of the Crown considersmdash(a) that it is necessary to amend the primary legislation under which the

subordinate legislation in question was made in order to enable theincompatibility to be removed and

(b) that there are compelling reasons for proceeding under this sectionhe may by order make such amendments to the primary legislation as he considersnecessary

(4) This section also applies where the provision in question is in subordinate legislationand has been quashed or declared invalid by reason of incompatibility with aConvention right and the Minister proposes to proceed under paragraph 2(b) ofSchedule 2




(5) If the legislation is an Order in Council the power conferred by subsection (2) or (3)is exercisable by Her Majesty in Council

(6) In this section ldquolegislationrdquo does not include a Measure of the Church Assembly or ofthe General Synod of the Church of England

(7) Schedule 2 makes further provision about remedial orders

Other rights and proceedings

11 Safeguard for existing human rights

A personrsquos reliance on a Convention right does not restrictmdash(a) any other right or freedom conferred on him by or under any law having effect

in any part of the United Kingdom or(b) his right to make any claim or bring any proceedings which he could make or

bring apart from sections 7 to 9

12 Freedom of expression

(1) This section applies if a court is considering whether to grant any relief which ifgranted might affect the exercise of the Convention right to freedom of expression

(2) If the person against whom the application for relief is made (ldquothe respondentrdquo) isneither present nor represented no such relief is to be granted unless the court issatisfiedmdash

(a) that the applicant has taken all practicable steps to notify the respondent or(b) that there are compelling reasons why the respondent should not be notified

(3) No such relief is to be granted so as to restrain publication before trial unless thecourt is satisfied that the applicant is likely to establish that publication should notbe allowed

(4) The court must have particular regard to the importance of the Convention rightto freedom of expression and where the proceedings relate to material which therespondent claims or which appears to the court to be journalistic literary or artisticmaterial (or to conduct connected with such material) tomdash

(a) the extent to whichmdash(i) the material has or is about to become available to the public or

(ii) it is or would be in the public interest for the material to be published(b) any relevant privacy code

(5) In this sectionmdashldquocourtrdquo includes a tribunal andldquoreliefrdquo includes any remedy or order (other than in criminal proceedings)

13 Freedom of thought conscience and religion

(1) If a courtrsquos determination of any question arising under this Act might affectthe exercise by a religious organisation (itself or its members collectively) of the


11



Convention right to freedom of thought conscience and religion it must haveparticular regard to the importance of that right

(2) In this section ldquocourtrdquo includes a tribunal

Derogations and reservations

14 Derogations

(1) In this Act ldquodesignated derogationrdquo meansmdashF15 any derogation by the United Kingdom from an Article of the Convention or ofany protocol to the Convention which is designated for the purposes of this Actin an order made by the [F16Secretary of State]

F17(2)

(3) If a designated derogation is amended or replaced it ceases to be a designatedderogation

(4) But subsection (3) does not prevent the [F18Secretary of State] from exercising hispower under subsection (1) F19 to make a fresh designation order in respect of theArticle concerned

(5) The [F20Secretary of State] must by order make such amendments to Schedule 3 as heconsiders appropriate to reflectmdash

(a) any designation order or(b) the effect of subsection (3)

(6) A designation order may be made in anticipation of the making by the United Kingdomof a proposed derogation

Annotations

Amendments (Textual)F15 S 14(1) from ldquo(a)rdquo to ldquo(b)rdquo repealed (142001) by SI 20011216 art 2(a)F16 Words in s 14 substituted (1982003) by The Secretary of State for Constitutional Affairs Order 2003

(S I 20031887) art 9 Sch 2 para 10(1)F17 S 14(2) repealed (142001) by SI 20011216 art 2(b)F18 Words in s 14 substituted (1982003) by The Secretary of State for Constitutional Affairs Order 2003

(S I 20031887) art 9 Sch 2 para 10(1)F19 S 14(4) ldquo(b)rdquo repealed (142001) by SI 20011216 art 2(c)F20 Words in s 14 substituted (1982003) by The Secretary of State for Constitutional Affairs Order 2003

(S I 20031887) art 9 Sch 2 para 10(1)

15 Reservations

(1) In this Act ldquodesignated reservationrdquo meansmdash(a) the United Kingdomrsquos reservation to Article 2 of the First Protocol to the

Convention and




(b) any other reservation by the United Kingdom to an Article of the Conventionor of any protocol to the Convention which is designated for the purposes ofthis Act in an order made by the [F21Secretary of State]

(2) The text of the reservation referred to in subsection (1)(a) is set out in Part II ofSchedule 3

(3) If a designated reservation is withdrawn wholly or in part it ceases to be a designatedreservation

(4) But subsection (3) does not prevent the [F22Secretary of State] from exercising hispower under subsection (1)(b) to make a fresh designation order in respect of theArticle concerned

(5) [F23Secretary of State] must by order make such amendments to this Act as he considersappropriate to reflectmdash


Annotations

Amendments (Textual)F21 Words in s 15 substituted (1982003) by The Secretary of State for Constitutional Affairs Order 2003

(S I 20031887) art 9 Sch 2 para 10(1)F22 Words in s 15 substituted (1982003) by The Secretary of State for Constitutional Affairs Order 2003


(S I 20031887) art 9 Sch 2 para 10(1)

16 Period for which designated derogations have effect

(1) If it has not already been withdrawn by the United Kingdom a designated derogationceases to have effect for the purposes of this Actmdash

F24 at the end of the period of five years beginning with the date on which theorder designating it was made

(2) At any time before the periodmdash(a) fixed by subsection (1) F25 or(b) extended by an order under this subsection

comes to an end the [F26Secretary of State] may by order extend it by a further periodof five years

(3) An order under section 14(1) F27 ceases to have effect at the end of the period forconsideration unless a resolution has been passed by each House approving the order

(4) Subsection (3) does not affectmdash(a) anything done in reliance on the order or(b) the power to make a fresh order under section 14(1)

(5) In subsection (3) ldquoperiod for considerationrdquo means the period of forty days beginningwith the day on which the order was made


13



(6) In calculating the period for consideration no account is to be taken of any time duringwhichmdash

(a) Parliament is dissolved or prorogued or(b) both Houses are adjourned for more than four days

(7) If a designated derogation is withdrawn by the United Kingdom the [F28Secretary ofState] must by order make such amendments to this Act as he considers are requiredto reflect that withdrawal

Annotations

Amendments (Textual)F24 S 16(1) words from ldquo(a)rdquo to ldquoany other derogationrdquo repealed (142001) by SI 20011216 art 3(a)F25 Words in s 16(2)(a) repealed (142001) by SI 20011216 art 3(b)F26 Words in s 16 substituted (1982003) by The Secretary of State for Constitutional Affairs Order 2003

(S I 20031887) art 9 Sch 2 para 10(1)F27 S 16(3)(4)(b) ldquo(b)rdquo repealed (142001) by SI 20011216 art 3(c)(d)F28 Words in s 16 substituted (1982003) by The Secretary of State for Constitutional Affairs Order 2003

(S I 20031887) art 9 Sch 2 para 10(1)

17 Periodic review of designated reservations

(1) The appropriate Minister must review the designated reservation referred to insection 15(1)(a)mdash

(a) before the end of the period of five years beginning with the date on whichsection 1(2) came into force and

(b) if that designation is still in force before the end of the period of five yearsbeginning with the date on which the last report relating to it was laid undersubsection (3)

(2) The appropriate Minister must review each of the other designated reservations (ifany)mdash

(a) before the end of the period of five years beginning with the date on whichthe order designating the reservation first came into force and

(b) if the designation is still in force before the end of the period of five yearsbeginning with the date on which the last report relating to it was laid undersubsection (3)

(3) The Minister conducting a review under this section must prepare a report on the resultof the review and lay a copy of it before each House of Parliament

Judges of the European Court of Human Rights

18 Appointment to European Court of Human Rights

(1) In this section ldquojudicial officerdquo means the office ofmdash(a) Lord Justice of Appeal Justice of the High Court or Circuit judge in England

and Wales(b) judge of the Court of Session or sheriff in Scotland




(c) Lord Justice of Appeal judge of the High Court or county court judge inNorthern Ireland

(2) The holder of a judicial office may become a judge of the European Court of HumanRights (ldquothe Courtrdquo) without being required to relinquish his office

(3) But he is not required to perform the duties of his judicial office while he is a judgeof the Court

(4) In respect of any period during which he is a judge of the Courtmdash(a) a Lord Justice of Appeal or Justice of the High Court is not to count as a judge

of the relevant court for the purposes of section 2(1) or 4(1) of the [F29SeniorCourts Act 1981](maximum number of judges) nor as a judge of the [F30SeniorCourts] for the purposes of section 12(1) to (6) of that Act (salaries etc)

(b) a judge of the Court of Session is not to count as a judge of that court forthe purposes of section 1(1) of the M4Court of Session Act 1988 (maximumnumber of judges) or of section 9(1)(c) of the M5Administration of Justice Act1973 (ldquothe 1973 Actrdquo) (salaries etc)

(c) a Lord Justice of Appeal or judge of the High Court in Northern Ireland is notto count as a judge of the relevant court for the purposes of section 2(1) or3(1) of the M6Judicature (Northern Ireland) Act 1978 (maximum number ofjudges) nor as a judge of the [F31Court of Judicature] of Northern Ireland forthe purposes of section 9(1)(d) of the 1973 Act (salaries etc)

(d) a Circuit judge is not to count as such for the purposes of section 18 of theM7Courts Act 1971 (salaries etc)

(e) a sheriff is not to count as such for the purposes of section 14 of the M8SheriffCourts (Scotland) Act 1907 (salaries etc)

(f) a county court judge of Northern Ireland is not to count as such for thepurposes of section 106 of the M9County Courts Act Northern Ireland) 1959(salaries etc)

(5) If a sheriff principal is appointed a judge of the Court section 11(1) of the M10SheriffCourts (Scotland) Act 1971 (temporary appointment of sheriff principal) applieswhile he holds that appointment as if his office is vacant

(6) Schedule 4 makes provision about judicial pensions in relation to the holder of ajudicial office who serves as a judge of the Court

(7) The Lord Chancellor or the Secretary of State may by order make such transitionalprovision (including in particular provision for a temporary increase in the maximumnumber of judges) as he considers appropriate in relation to any holder of a judicialoffice who has completed his service as a judge of the Court

[F32(7A) The following paragraphs apply to the making of an order under subsection (7) inrelation to any holder of a judicial office listed in subsection (1)(a)mdash

(a) before deciding what transitional provision it is appropriate to make theperson making the order must consult the Lord Chief Justice of England andWales

(b) before making the order that person must consult the Lord Chief Justice ofEngland and Wales

(7B) The following paragraphs apply to the making of an order under subsection (7) inrelation to any holder of a judicial office listed in subsection (1)(c)mdash


15



(a) before deciding what transitional provision it is appropriate to make theperson making the order must consult the Lord Chief Justice of NorthernIreland

(b) before making the order that person must consult the Lord Chief Justice ofNorthern Ireland

(7C) The Lord Chief Justice of England and Wales may nominate a judicial office holder(within the meaning of section 109(4) of the Constitutional Reform Act 2005) toexercise his functions under this section

(7D) The Lord Chief Justice of Northern Ireland may nominate any of the following toexercise his functions under this sectionmdash

(a) the holder of one of the offices listed in Schedule 1 to the Justice (NorthernIreland) Act 2002

(b) a Lord Justice of Appeal (as defined in section 88 of that Act)]

Annotations

Amendments (Textual)F29 Words in s 18(4)(a) substituted (1102009) by Constitutional Reform Act 2005 (c 4) ss 59 148

Sch 11 para 4 SI 20091604 art 2(d)F30 Words in s 18(4)(a) substituted (1102009) by Constitutional Reform Act 2005 (c 4) ss 59 148

Sch 11 para 4 SI 20091604 art 2(d)F31 Words in s 18(4)(c) substituted (1102009) by Constitutional Reform Act 2005 (c 4) ss 59 148

Sch 11 para 6 SI 20091604 art 2(d)F32 S 18(7A)-(7D) inserted (342006) by Constitutional Reform Act 2005 (c 4) ss 15 148 Sch 4 para

278 SI 20061014 art 2 Sch 1 para 11(v)

Marginal CitationsM4 1988 c 36M5 1973 c 15M6 1978 c 23M7 1971 c 23M8 1907 c 51M9 1959 c 25 (NI)M10 1971 c 58

Parliamentary procedure

19 Statements of compatibility

(1) A Minister of the Crown in charge of a Bill in either House of Parliament must beforeSecond Reading of the Billmdash

(a) make a statement to the effect that in his view the provisions of the Bill arecompatible with the Convention rights (ldquoa statement of compatibilityrdquo) or

(b) make a statement to the effect that although he is unable to make a statementof compatibility the government nevertheless wishes the House to proceedwith the Bill

(2) The statement must be in writing and be published in such manner as the Ministermaking it considers appropriate




Supplemental

20 Orders etc under this Act

(1) Any power of a Minister of the Crown to make an order under this Act is exercisableby statutory instrument

(2) The power of F33[F34the Lord Chancellor or] the Secretary of State to make rules(other than rules of court) under section 2(3) or 7(9) is exercisable by statutoryinstrument

(3) Any statutory instrument made under section 14 15 or 16(7) must be laid beforeParliament

(4) No order may be made by F35[F36the Lord Chancellor or] the Secretary of Stateunder section 1(4) 7(11) or 16(2) unless a draft of the order has been laid before andapproved by each House of Parliament

(5) Any statutory instrument made under section 18(7) or Schedule 4 or to whichsubsection (2) applies shall be subject to annulment in pursuance of a resolution ofeither House of Parliament

(6) The power of a Northern Ireland department to makemdash(a) rules under section 2(3)(c) or 7(9)(c) or(b) an order under section 7(11)

is exercisable by statutory rule for the purposes of the M11Statutory Rules (NorthernIreland) Order 1979

(7) Any rules made under section 2(3)(c) or 7(9)(c) shall be subject to negative resolutionand section 41(6) of the M12Interpretation Act Northern Ireland) 1954 (meaning ofldquosubject to negative resolutionrdquo) shall apply as if the power to make the rules wereconferred by an Act of the Northern Ireland Assembly

(8) No order may be made by a Northern Ireland department under section 7(11) unlessa draft of the order has been laid before and approved by the Northern IrelandAssembly

Annotations

Amendments (Textual)F33 Words in s 20(2) repealed (1982003) by The Secretary of State for Constitutional Affairs Order 2003

(S I 20031887) art 9 Sch 2 para 10(2)F34 Words in s 20(2) inserted (1212006) by The Transfer of Functions (Lord Chancellor and Secretary of

State) Order 2005 (SI 20053429) art 8 Sch para 3F35 Words in s 20(4) repealed (1982003) by The Secretary of State for Constitutional Affairs Order 2003


State) Order 2005 (SI 20053429) art 8 Sch para 3

Marginal CitationsM11 SI 19791573 (NI 12)M12 1954 c 33 (NI)


17



21 Interpretation etc

(1) In this Actmdashldquoamendrdquo includes repeal and apply (with or without modifications)ldquothe appropriate Ministerrdquo means the Minister of the Crown having charge

of the appropriate authorised government department (within the meaning ofthe M13Crown Proceedings Act 1947)

ldquothe Commissionrdquo means the European Commission of Human Rightsldquothe Conventionrdquo means the Convention for the Protection of Human

Rights and Fundamental Freedoms agreed by the Council of Europe at Romeon 4th November 1950 as it has effect for the time being in relation to theUnited Kingdom

ldquodeclaration of incompatibilityrdquo means a declaration under section 4ldquoMinister of the Crownrdquo has the same meaning as in the Ministers of the

M14Crown Act 1975ldquoNorthern Ireland Ministerrdquo includes the First Minister and the deputy First

Minister in Northern Irelandldquoprimary legislationrdquo means anymdash

(a) public general Act(b) local and personal Act(c) private Act(d) Measure of the Church Assembly(e) Measure of the General Synod of the Church of England(f) Order in Councilmdash(g) made in exercise of Her Majestyrsquos Royal Prerogative(h) made under section 38(1)(a) of the M15Northern Ireland Constitution Act

1973 or the corresponding provision of the Northern Ireland Act 1998 or(i) amending an Act of a kind mentioned in paragraph (a) (b) or (c)

and includes an order or other instrument made under primary legislation(otherwise than by the [F37Welsh Ministers the First Minister for Walesthe Counsel General to the Welsh Assembly Government] a member ofthe Scottish Executive a Northern Ireland Minister or a Northern Irelanddepartment) to the extent to which it operates to bring one or more provisionsof that legislation into force or amends any primary legislation

ldquothe First Protocolrdquo means the protocol to the Convention agreed at Parison 20th March 1952

F38ldquothe Eleventh Protocolrdquo means the protocol to the Convention

(restructuring the control machinery established by the Convention) agreed atStrasbourg on 11th May 1994

[F39ldquothe Thirteenth Protocolrdquo means the protocol to the Convention(concerning the abolition of the death penalty in all circumstances) agreed atVilnius on 3rd May 2002]

ldquoremedial orderrdquo means an order under section 10ldquosubordinate legislationrdquo means anymdash

(a) Order in Council other than onemdash(b) made in exercise of Her Majestyrsquos Royal Prerogative




(c) made under section 38(1)(a) of the Northern Ireland Constitution Act1973 or the corresponding provision of the Northern Ireland Act 1998 or

(d) amending an Act of a kind mentioned in the definition of primarylegislation

(e) Act of the Scottish Parliament(f) [F40Measure of the National Assembly for Wales(g) Act of the National Assembly for Wales](h) Act of the Parliament of Northern Ireland(i) Measure of the Assembly established under section 1 of the M16Northern

Ireland Assembly Act 1973(j) Act of the Northern Ireland Assembly(k) order rules regulations scheme warrant byelaw or other instrument

made under primary legislation (except to the extent to which it operatesto bring one or more provisions of that legislation into force or amendsany primary legislation)

(l) order rules regulations scheme warrant byelaw or other instrumentmade under legislation mentioned in paragraph (b) (c) (d) or (e) or madeunder an Order in Council applying only to Northern Ireland

(m) order rules regulations scheme warrant byelaw or other instrumentmade by a member of the Scottish Executive [F41 Welsh Ministers theFirst Minister for Wales the Counsel General to the Welsh AssemblyGovernment] a Northern Ireland Minister or a Northern Irelanddepartment in exercise of prerogative or other executive functions ofHer Majesty which are exercisable by such a person on behalf of HerMajesty

ldquotransferred mattersrdquo has the same meaning as in the Northern Ireland Act1998 and

ldquotribunalrdquo means any tribunal in which legal proceedings may be brought

(2) The references in paragraphs (b) and (c) of section 2(1) to Articles are to Articles ofthe Convention as they had effect immediately before the coming into force of theEleventh Protocol

(3) The reference in paragraph (d) of section 2(1) to Article 46 includes a reference toArticles 32 and 54 of the Convention as they had effect immediately before the cominginto force of the Eleventh Protocol

(4) The references in section 2(1) to a report or decision of the Commission or a decision ofthe Committee of Ministers include references to a report or decision made as providedby paragraphs 3 4 and 6 of Article 5 of the Eleventh Protocol (transitional provisions)

(5) F42

Annotations

Extent InformationE2 For the extent of s 21 outside the UK see s 22(7)

Amendments (Textual)F37 Words in the definition of primary legislation in s 21(1) substituted by Government of Wales Act

2006 (c 32) s 160(1) Sch 10 para56(2) (with Sch 11 para 22) the amending provision coming intoforce immediately after the 2007 election (held on 352007) subject to s 161(4)(5) of the amending


19



Act which provides for certain provisions to come into force for specified purposes immediately afterthe end of the initial period (which ended with the day of the first appointment of a First Minister on2552007) - see ss 46 161(1)(4)(5) of the amending Act

F38 S 21(1) definition of the Sixth Protocol omitted (2262004) by virtue of The Human Rights Act1998 (Amendment) Order 2004 (SI 20041574) art 2(2)

F39 S 21(1) definition of the Thirteenth Protocol inserted (2262004) by virtue of The Human RightsAct 1998 (Amendment) Order 2004 (SI 20041574) art 2(2)

F40 Words in the definition of subordinate legislation in s 21(1) substituted by Government of Wales Act2006 (c 32) s 160(1) Sch 10 para56(3) (with Sch 11 para 22) the amending provision coming intoforce immediately after the 2007 election (held on 352007) subject to s 161(4)(5) of the amendingAct which provides for certain provisions to come into force for specified purposes immediately afterthe end of the initial period (which ended with the day of the first appointment of a First Minister on2552007) - see ss 46 161(1)(4)(5) of the amending Act


F42 S 21(5) repealed (2832009 for certain purposes and 31102009 otherwise) by Armed ForcesAct 2006 (c 52) ss 378 383 Sch 17 SI 2009812 art 3 (with transitional provisions in SI20091059) SI 20091167 art 4

Commencement InformationI1 S 21 wholly in force at 2102000 s 21(5) in force at Royal Assent see s 22(2)(3) s 21 in force so

far as not already in force (2102000) by SI 20001851 art 2

Marginal CitationsM13 1947 c 44M14 1975 c 26M15 1973 c 36M16 1973 c 17

22 Short title commencement application and extent

(1) This Act may be cited as the Human Rights Act 1998

(2) Sections 18 20 and 21(5) and this section come into force on the passing of this Act

(3) The other provisions of this Act come into force on such day as the Secretary of Statemay by order appoint and different days may be appointed for different purposes

(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at theinstigation of a public authority whenever the act in question took place but otherwisethat subsection does not apply to an act taking place before the coming into force ofthat section

(5) This Act binds the Crown

(6) This Act extends to Northern Ireland

(7) F43




Annotations

Subordinate Legislation MadeP1 S 22(3) power partly exercised 24111998 appointed for specified provisions by SI 19982882 art

2S 22(3) power fully exercised 2102000 appointed for remaining provisions by SI 20001851 art 2

Amendments (Textual)F43 S 22(7) repealed (2832009 for certain purposes and 31102009 otherwise) by Armed Forces

Act 2006 (c 52) ss 378 383 Sch 17 SI 2009812 art 3 (with transitional provisions in SI20091059) SI 20091167 art 4

Human Rights Act 1998 (c 42)SCHEDULE 1 ndash The ArticlesDocument Generated 2012-09-16

21



S C H E D U L E S

SCHEDULE 1 Section 1(3)

THE ARTICLES

PART I

THE CONVENTION

RIGHTS AND FREEDOMS

ARTICLE 2

RIGHT TO LIFE

1 Everyonersquos right to life shall be protected by law No one shall be deprived of his lifeintentionally save in the execution of a sentence of a court following his convictionof a crime for which this penalty is provided by law

2 Deprivation of life shall not be regarded as inflicted in contravention of this Articlewhen it results from the use of force which is no more than absolutely necessary

(a) in defence of any person from unlawful violence(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully

detained(c) in action lawfully taken for the purpose of quelling a riot or insurrection

ARTICLE 3

PROHIBITION OF TORTURE


ARTICLE 4

PROHIBITION OF SLAVERY AND FORCED LABOUR

1 No one shall be held in slavery or servitude2 No one shall be required to perform forced or compulsory labour3 For the purpose of this Article the term ldquoforced or compulsory labourrdquo shall not

include(a) any work required to be done in the ordinary course of detention imposed

according to the provisions of Article 5 of this Convention or duringconditional release from such detention

22 Human Rights Act 1998 (c 42)SCHEDULE 1 ndash The Articles

Document Generated 2012-09-16Changes to legislation There are outstanding changes not yet made by the legislationgovuk

editorial team to Human Rights Act 1998 Any changes that have already been made by the teamappear in the content and are referenced with annotations (See end of Document for details)

(b) any service of a military character or in case of conscientious objectors incountries where they are recognised service exacted instead of compulsorymilitary service

(c) any service exacted in case of an emergency or calamity threatening thelife or well-being of the community

(d) any work or service which forms part of normal civic obligations

ARTICLE 5

RIGHT TO LIBERTY AND SECURITY

1 Everyone has the right to liberty and security of person No one shall be deprived ofhis liberty save in the following cases and in accordance with a procedure prescribedby law

(a) the lawful detention of a person after conviction by a competent court(b) the lawful arrest or detention of a person for non-compliance with the

lawful order of a court or in order to secure the fulfilment of any obligationprescribed by law

(c) the lawful arrest or detention of a person effected for the purpose ofbringing him before the competent legal authority on reasonable suspicionof having committed an offence or when it is reasonably considerednecessary to prevent his committing an offence or fleeing after having doneso

(d) the detention of a minor by lawful order for the purpose of educationalsupervision or his lawful detention for the purpose of bringing him beforethe competent legal authority

(e) the lawful detention of persons for the prevention of the spreading ofinfectious diseases of persons of unsound mind alcoholics or drug addictsor vagrants

(f) the lawful arrest or detention of a person to prevent his effecting anunauthorised entry into the country or of a person against whom action isbeing taken with a view to deportation or extradition

2 Everyone who is arrested shall be informed promptly in a language which heunderstands of the reasons for his arrest and of any charge against him

3 Everyone arrested or detained in accordance with the provisions of paragraph 1(c)of this Article shall be brought promptly before a judge or other officer authorisedby law to exercise judicial power and shall be entitled to trial within a reasonabletime or to release pending trial Release may be conditioned by guarantees to appearfor trial

4 Everyone who is deprived of his liberty by arrest or detention shall be entitled totake proceedings by which the lawfulness of his detention shall be decided speedilyby a court and his release ordered if the detention is not lawful

5 Everyone who has been the victim of arrest or detention in contravention of theprovisions of this Article shall have an enforceable right to compensation


23



ARTICLE 6

RIGHT TO A FAIR TRIAL

1 In the determination of his civil rights and obligations or of any criminal chargeagainst him everyone is entitled to a fair and public hearing within a reasonabletime by an independent and impartial tribunal established by law Judgment shallbe pronounced publicly but the press and public may be excluded from all or part ofthe trial in the interest of morals public order or national security in a democraticsociety where the interests of juveniles or the protection of the private life of theparties so require or to the extent strictly necessary in the opinion of the court inspecial circumstances where publicity would prejudice the interests of justice

2 Everyone charged with a criminal offence shall be presumed innocent until provedguilty according to law

3 Everyone charged with a criminal offence has the following minimum rights(a) to be informed promptly in a language which he understands and in detail

of the nature and cause of the accusation against him(b) to have adequate time and facilities for the preparation of his defence(c) to defend himself in person or through legal assistance of his own choosing

or if he has not sufficient means to pay for legal assistance to be given itfree when the interests of justice so require

(d) to examine or have examined witnesses against him and to obtain theattendance and examination of witnesses on his behalf under the sameconditions as witnesses against him

(e) to have the free assistance of an interpreter if he cannot understand or speakthe language used in court

ARTICLE 7

NO PUNISHMENT WITHOUT LAW

1 No one shall be held guilty of any criminal offence on account of any act or omissionwhich did not constitute a criminal offence under national or international law atthe time when it was committed Nor shall a heavier penalty be imposed than theone that was applicable at the time the criminal offence was committed

2 This Article shall not prejudice the trial and punishment of any person for any actor omission which at the time when it was committed was criminal according tothe general principles of law recognised by civilised nations

ARTICLE 8

RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

1 Everyone has the right to respect for his private and family life his home and hiscorrespondence

2 There shall be no interference by a public authority with the exercise of this rightexcept such as is in accordance with the law and is necessary in a democratic societyin the interests of national security public safety or the economic well-being of




the country for the prevention of disorder or crime for the protection of health ormorals or for the protection of the rights and freedoms of others

ARTICLE 9

FREEDOM OF THOUGHT CONSCIENCE AND RELIGION

1 Everyone has the right to freedom of thought conscience and religion this rightincludes freedom to change his religion or belief and freedom either alone or incommunity with others and in public or private to manifest his religion or beliefin worship teaching practice and observance

2 Freedom to manifest onersquos religion or beliefs shall be subject only to suchlimitations as are prescribed by law and are necessary in a democratic society inthe interests of public safety for the protection of public order health or morals orfor the protection of the rights and freedoms of others

ARTICLE 10

FREEDOM OF EXPRESSION

1 Everyone has the right to freedom of expression This right shall include freedom tohold opinions and to receive and impart information and ideas without interferenceby public authority and regardless of frontiers This Article shall not prevent Statesfrom requiring the licensing of broadcasting television or cinema enterprises

2 The exercise of these freedoms since it carries with it duties and responsibilitiesmay be subject to such formalities conditions restrictions or penalties as areprescribed by law and are necessary in a democratic society in the interests ofnational security territorial integrity or public safety for the prevention of disorderor crime for the protection of health or morals for the protection of the reputation orrights of others for preventing the disclosure of information received in confidenceor for maintaining the authority and impartiality of the judiciary

ARTICLE 11

FREEDOM OF ASSEMBLY AND ASSOCIATION

1 Everyone has the right to freedom of peaceful assembly and to freedom ofassociation with others including the right to form and to join trade unions for theprotection of his interests

2 No restrictions shall be placed on the exercise of these rights other than such asare prescribed by law and are necessary in a democratic society in the interests ofnational security or public safety for the prevention of disorder or crime for theprotection of health or morals or for the protection of the rights and freedoms ofothers This Article shall not prevent the imposition of lawful restrictions on theexercise of these rights by members of the armed forces of the police or of theadministration of the State


25



ARTICLE 12

RIGHT TO MARRY

Men and women of marriageable age have the right to marry and to found a family accordingto the national laws governing the exercise of this right

ARTICLE 14

PROHIBITION OF DISCRIMINATION

The enjoyment of the rights and freedoms set forth in this Convention shall be secured withoutdiscrimination on any ground such as sex race colour language religion political or otheropinion national or social origin association with a national minority property birth or otherstatus

ARTICLE 16

RESTRICTIONS ON POLITICAL ACTIVITY OF ALIENS

Nothing in Articles 10 11 and 14 shall be regarded as preventing the High Contracting Partiesfrom imposing restrictions on the political activity of aliens

ARTICLE 17

PROHIBITION OF ABUSE OF RIGHTS

Nothing in this Convention may be interpreted as implying for any State group or person anyright to engage in any activity or perform any act aimed at the destruction of any of the rightsand freedoms set forth herein or at their limitation to a greater extent than is provided for inthe Convention

ARTICLE 18

LIMITATION ON USE OF RESTRICTIONS ON RIGHTS

The restrictions permitted under this Convention to the said rights and freedoms shall not beapplied for any purpose other than those for which they have been prescribed




PART II

THE FIRST PROTOCOL

ARTICLE 1

PROTECTION OF PROPERTY

Every natural or legal person is entitled to the peaceful enjoyment of his possessions No oneshall be deprived of his possessions except in the public interest and subject to the conditionsprovided for by law and by the general principles of international law

The preceding provisions shall not however in any way impair the right of a State to enforcesuch laws as it deems necessary to control the use of property in accordance with the generalinterest or to secure the payment of taxes or other contributions or penalties

ARTICLE 2

RIGHT TO EDUCATION

No person shall be denied the right to education In the exercise of any functions which itassumes in relation to education and to teaching the State shall respect the right of parents toensure such education and teaching in conformity with their own religious and philosophicalconvictions

ARTICLE 3

RIGHT TO FREE ELECTIONS

The High Contracting Parties undertake to hold free elections at reasonable intervals by secretballot under conditions which will ensure the free expression of the opinion of the people inthe choice of the legislature

[F44PART 3

ARTICLE 1 OF THE THIRTEENTH PROTOCOL

ABOLITION OF THE DEATH PENALTY

Annotations

Amendments (Textual)F44 Sch 1 Pt 3 substituted (2262004) by The Human Rights Act 1998 (Amendment) Order 2004 (SI

20041574) art 2(3)

The death penalty shall be abolished No one shall be condemned to such penalty or executed]

Human Rights Act 1998 (c 42)SCHEDULE 2 ndash Remedial OrdersDocument Generated 2012-09-16

27



PART III

THE SIXTH PROTOCOL

SCHEDULE 2 Section 10

REMEDIAL ORDERS

Orders1 (1) A remedial order maymdash

(a) contain such incidental supplemental consequential or transitionalprovision as the person making it considers appropriate

(b) be made so as to have effect from a date earlier than that on which it is made(c) make provision for the delegation of specific functions(d) make different provision for different cases

(2) The power conferred by sub-paragraph (1)(a) includesmdash(a) power to amend primary legislation (including primary legislation other than

that which contains the incompatible provision) and(b) power to amend or revoke subordinate legislation (including subordinate

legislation other than that which contains the incompatible provision)

(3) A remedial order may be made so as to have the same extent as the legislation whichit affects

(4) No person is to be guilty of an offence solely as a result of the retrospective effectof a remedial order

Procedure2 No remedial order may be made unlessmdash

(a) a draft of the order has been approved by a resolution of each House ofParliament made after the end of the period of 60 days beginning with theday on which the draft was laid or

(b) it is declared in the order that it appears to the person making it that becauseof the urgency of the matter it is necessary to make the order without adraft being so approved

Orders laid in draft3 (1) No draft may be laid under paragraph 2(a) unlessmdash

(a) the person proposing to make the order has laid before Parliament adocument which contains a draft of the proposed order and the requiredinformation and

(b) the period of 60 days beginning with the day on which the documentrequired by this sub-paragraph was laid has ended

28 Human Rights Act 1998 (c 42)SCHEDULE 2 ndash Remedial OrdersDocument Generated 2012-09-16



(2) If representations have been made during that period the draft laid under paragraph2(a) must be accompanied by a statement containingmdash

(a) a summary of the representations and(b) if as a result of the representations the proposed order has been changed

details of the changes

Urgent cases4 (1) If a remedial order (ldquothe original orderrdquo) is made without being approved in draft

the person making it must lay it before Parliament accompanied by the requiredinformation after it is made

(2) If representations have been made during the period of 60 days beginning with theday on which the original order was made the person making it must (after the endof that period) lay before Parliament a statement containingmdash

(a) a summary of the representations and(b) if as a result of the representations he considers it appropriate to make

changes to the original order details of the changes

(3) If sub-paragraph (2)(b) applies the person making the statement mustmdash(a) make a further remedial order replacing the original order and(b) lay the replacement order before Parliament

(4) If at the end of the period of 120 days beginning with the day on which the originalorder was made a resolution has not been passed by each House approving theoriginal or replacement order the order ceases to have effect (but without thataffecting anything previously done under either order or the power to make a freshremedial order)

Definitions5 In this Schedulemdash

ldquorepresentationsrdquo means representations about a remedial order (orproposed remedial order) made to the person making (or proposing to make)it and includes any relevant Parliamentary report or resolution and

ldquorequired informationrdquo meansmdash(a) an explanation of the incompatibility which the order (or proposed

order) seeks to remove including particulars of the relevantdeclaration finding or order and

(b) a statement of the reasons for proceeding under section 10 and formaking an order in those terms

Calculating periods6 In calculating any period for the purposes of this Schedule no account is to be taken

of any time during whichmdash(a) Parliament is dissolved or prorogued or(b) both Houses are adjourned for more than four days

[F487 (1) This paragraph applies in relation tondash

Human Rights Act 1998 (c 42)SCHEDULE 3 ndash Derogation and ReservationDocument Generated 2012-09-16

29



(a) any remedial order made and any draft of such an order proposed to bemadendash

(i) by the Scottish Ministers or(ii) within devolved competence (within the meaning of the Scotland

Act 1998) by Her Majesty in Council and(b) any document or statement to be laid in connection with such an order (or

proposed order)

(2) This Schedule has effect in relation to any such order (or proposed order) documentor statement subject to the following modifications

(3) Any reference to Parliament each House of Parliament or both Houses of Parliamentshall be construed as a reference to the Scottish Parliament

(4) Paragraph 6 does not apply and instead in calculating any period for the purposesof this Schedule no account is to be taken of any time during which the ScottishParliament is dissolved or is in recess for more than four days]

Annotations

Amendments (Textual)F48 Sch 2 para 7 inserted (2772000) by SI 20002040 art 2 Sch Pt I para 21 (with art 3)

SCHEDULE 3 Sections 14 and 15

DEROGATION AND RESERVATION

F49

PART I

Annotations

Amendments (Textual)F49 Sch 3 Pt I repealed (142001) by SI 20011216 art 4

F50

PART I

DEROGATION

30 Human Rights Act 1998 (c 42)SCHEDULE 4 ndash Judicial PensionsDocument Generated 2012-09-16



Annotations

Amendments (Textual)F50 Sch 3 Pt I repealed (842005) by The Human Rights Act 1998 (Amendment) Order 2005 (SI

20051071) art 2

PART II

RESERVATION

At the time of signing the present (First) Protocol I declare that in view of certain provisionsof the Education Acts in the United Kingdom the principle affirmed in the second sentence ofArticle 2 is accepted by the United Kingdom only so far as it is compatible with the provisionof efficient instruction and training and the avoidance of unreasonable public expenditure

Dated 20 March 1952

Made by the United Kingdom Permanent Representative to the Council of Europe


JUDICIAL PENSIONS

Duty to make orders about pensions1 (1) The appropriate Minister must by order make provision with respect to pensions

payable to or in respect of any holder of a judicial office who serves as an ECHRjudge

(2) A pensions order must include such provision as the Minister making it considers isnecessary to secure thatmdash

(a) an ECHR judge who was immediately before his appointment as an ECHRjudge a member of a judicial pension scheme is entitled to remain as amember of that scheme

(b) the terms on which he remains a member of the scheme are those whichwould have been applicable had he not been appointed as an ECHR judgeand

(c) entitlement to benefits payable in accordance with the scheme continues tobe determined as if while serving as an ECHR judge his salary was thatwhich would (but for section 18(4)) have been payable to him in respect ofhis continuing service as the holder of his judicial office

Contributions2 A pensions order may in particular make provisionmdash

(a) for any contributions which are payable by a person who remains a memberof a scheme as a result of the order and which would otherwise be payableby deduction from his salary to be made otherwise than by deduction fromhis salary as an ECHR judge and

Human Rights Act 1998 (c 42)SCHEDULE 4 ndash Judicial PensionsDocument Generated 2012-09-16

31



(b) for such contributions to be collected in such manner as may be determinedby the administrators of the scheme

Amendments of other enactments3 A pensions order may amend any provision of or made under a pensions Act

in such manner and to such extent as the Minister making the order considersnecessary or expedient to ensure the proper administration of any scheme to whichit relates


ldquoappropriate Ministerrdquo meansmdash(a) in relation to any judicial office whose jurisdiction is exercisable

exclusively in relation to Scotland the Secretary of State and(b) otherwise the Lord Chancellor

ldquoECHR judgerdquo means the holder of a judicial office who is serving as ajudge of the Court

ldquojudicial pension schemerdquo means a scheme established by and inaccordance with a pensions Act

ldquopensions Actrdquo meansmdash(a) the M17County Courts Act Northern Ireland) 1959(b) the M18Sheriffsrsquo Pensions (Scotland) Act 1961(c) the M19Judicial Pensions Act 1981 or(d) the M20Judicial Pensions and Retirement Act 1993 and

ldquopensions orderrdquo means an order made under paragraph 1

Annotations

Marginal CitationsM17 1959 c 25 (NI)M18 1961 c 42M19 1981 c 20M20 1993 c 8


Changes to legislation There are outstanding changes not yet made by the legislationgovuk editorial team to HumanRights Act 1998 Any changes that have already been made by the team appear in the contentand are referenced with annotations

Commencement Orders yet to be applied to the Human Rights Act 1998Commencement Orders bringing legislation that affects this Act into forcendash SI 20061014 art 2(a) Sch 1 para 11(v) commences (2005 c 4)ndash SI 20071897 art 2(1) commences (2005 c 9)ndash SI 2009812 art 3(a)(b) commences (2006 c 52)ndash SI 20091604 art 2 commences (2005 c 4)

A UK Bill of Rights The Choice Before Us - 13Volume 2 Annexes

Table of Contents13

Annex A - Organisations and individuals with 13whom the Commission met

Annex B - The Commissionrsquos Interim Advice to Government on Reform of the European Court of Human Rights

Annex C - The Chairrsquos letter to Ministers on Reform of the European Court of Human Rights

Annex D - The Commissionrsquos Discussion Paper Do we need a UK Bill of Rights August 2011

Annex E - The Commissionrsquos Consultation Paper A Second Consultation July 2012

Annex F - List of Respondents to the Commissionrsquos Discussion and Consultation Papers






List of respondent organisations and bodies

List of individual respondents

Annex G - 13Consultation Summary

Annex H - Examples of Bills of Rights

Annex H1 - The Institute for Public Policy Research A British Bill of Rights 1990

Annex H2 - Joint Committee on Human Rights Outline of a UK Bill of Rights and 13Freedoms 2008

Annex H3 - 13Links to Bills of Rights in other countries

Annex I - The European Convention on Human Rights

Annex J - The Human Rights Act13 1998



















Table of Contents



Annex A




Age UK

David Anderson QC











Chris Bryant MP







































Ipsos Mori











JUSTICE








Liberty


























Public Law Wales














UK Border Agency

Unicef UK










WWF-UK




Annex B





London SW1H 9AJ

T 020 3334 2486



Dear Ministers


INTRODUCTION








BACKGROUND










































Yours sincerely

CONCLUSION









Annex C


Human Rights



London SW1H 9AJ

T 020 3334 2486



Dear Ministers


INTRODUCTION

























Yours sincerely






CONCLUSION








Annex D


August 2011


Discussion Paper







1

Contents

Introduction 3


Background 5



The Rule of Law 5









Scotland 10

Northern Ireland 10

Wales 11




Confidentiality 12

Endnotes 13

2

Introduction









3




If so





4

Background

The UK Constitution





The Rule of Law





5










6
























7











8







9



Scotland




Northern Ireland





10

Wales










11

Alternative formats



Confidentiality




12










13









12Sections 8 and 9

13 Section 30

14 Section 57(2)

15 Section 29



18 Section 24(1)(a)

19 Section 6

20 These included





14









bull right to work




22 Section 94

23 Section 81(1)




27 Article 511



15



16


Annex E




July 2012







Contents


Background 51
















Responsibilities 64




Other issues 69



Confidentiality 70


Endnotes 73












Background














A UK Bill of Rights
































Additional rights



A Right to Equality





































Rights for victims

























































Responsibilities










































Other issues








Alternative formats




London SW1H 9AJ

Confidentiality























Endnotes 1















Annex F


Consultation Papers






Students in Ireland
































































































































































Jefford Tom

















Annex G








2

Table of Contents

Introduction 4

















3



4






5




Advocate

28

Equivocal 27

Oppose 45



Repeal 12

Retain 88


Repeal4

Retain 96







6

















7










8









9











10










11











12









13





14









15









16


17








18


No 2

Yes 98







19








20








21










22


23






12

35

53

Replace

Sit alongside

Equivocal



24








25










26











27










28



29

Additional rights

Introduction








30

6 7


87








31










32











33

Socio-econom

icR


ents Trial by

Jury

Crim

inal andC

ivil Justice C

hildrensR

ights R

ight toEquality

Environm

ental Rights

Adm

inistrativeJustice

Victim

s Rights

MinorityV

ulnerableG

roups

Other R

ights


0

40

80

120 R

es

po

nd

en

ts







34



A Right to Equality








35












36












37






Rights for Victims








38













39










0

15

30

45

Re

sp

on

de

nts

Ad

vo

ca

ting









40









41












42









43











44










45











46







47


Introduction






48










49











50













51












52



53












54










55










56







57







58









Change the balance




59











60












61






62













63





64








65








66










67








68









69










70











71










72











73







74









75








76








77






78










79













80








81













82
















83











84








85



Annex H




Annex H1






Annex H2








Preamble































Obligations
























Enforcement



Remedies




















Emergencies

















bull Equality

bull Dignity


bull Life




bull Liberty






bull Right to marry


bull Property




















Justiciability





Judicial review













Health care



Education



Housing




















bull Citizenship


bull Children

bull Minorities





Annex H3




























Annex I






Rome 4XI1950























































































































































a is anonymous or


































































































Annex J






Annotations





Introduction













Annotations



(S I 20031887) art 9 Sch 2 para 10(1)














3




Annotations






Legislation






















Annotations















5



Annotations





Public authorities








(4) F11



Annotations


66(4) Sch 18 Pt 5 SI 20091604 art 2(d)(f)







7 Proceedings



















7









Annotations









8 Judicial remedies
















Annotations


9 Judicial acts








9







Annotations


2005109 art 2 Sch

Remedial action




































11






14 Derogations


F17(2)






Annotations




(S I 20031887) art 9 Sch 2 para 10(1)

15 Reservations


Convention and










Annotations




(S I 20031887) art 9 Sch 2 para 10(1)










13






Annotations



(S I 20031887) art 9 Sch 2 para 10(1)


































15









Annotations





278 SI 20061014 art 2 Sch 1 para 11(v)











Supplemental











Annotations








17



































(5) F42

Annotations





19



















(7) F43




Annotations






21



S C H E D U L E S


THE ARTICLES

PART I

THE CONVENTION

RIGHTS AND FREEDOMS

ARTICLE 2

RIGHT TO LIFE





ARTICLE 3



ARTICLE 4











ARTICLE 5














23



ARTICLE 6









ARTICLE 7




ARTICLE 8








ARTICLE 9




ARTICLE 10




ARTICLE 11





25



ARTICLE 12

RIGHT TO MARRY


ARTICLE 14



ARTICLE 16



ARTICLE 17



ARTICLE 18






PART II

THE FIRST PROTOCOL

ARTICLE 1




ARTICLE 2

RIGHT TO EDUCATION


ARTICLE 3



[F44PART 3



Annotations


20041574) art 2(3)



27



PART III

THE SIXTH PROTOCOL


REMEDIAL ORDERS





































29






proposed order)




Annotations




F49

PART I

Annotations


F50

PART I

DEROGATION




Annotations


20051071) art 2

PART II

RESERVATION


Dated 20 March 1952



JUDICIAL PENSIONS










31













Annotations






Table of Contents13























Annex A




Age UK

David Anderson QC











Chris Bryant MP







































Ipsos Mori











JUSTICE








Liberty


























Public Law Wales














UK Border Agency

Unicef UK










WWF-UK




Annex B





London SW1H 9AJ

T 020 3334 2486



Dear Ministers


INTRODUCTION








BACKGROUND










































Yours sincerely

CONCLUSION









Annex C


Human Rights



London SW1H 9AJ

T 020 3334 2486



Dear Ministers


INTRODUCTION

























Yours sincerely






CONCLUSION








Annex D


August 2011


Discussion Paper







1

Contents

Introduction 3


Background 5



The Rule of Law 5









Scotland 10

Northern Ireland 10

Wales 11




Confidentiality 12

Endnotes 13

2

Introduction









3




If so





4

Background

The UK Constitution





The Rule of Law





5










6
























7











8







9



Scotland




Northern Ireland





10

Wales










11

Alternative formats



Confidentiality




12










13









12Sections 8 and 9

13 Section 30

14 Section 57(2)

15 Section 29



18 Section 24(1)(a)

19 Section 6

20 These included





14









bull right to work




22 Section 94

23 Section 81(1)




27 Article 511



15



16


Annex E




July 2012







Contents


Background 51
















Responsibilities 64




Other issues 69



Confidentiality 70


Endnotes 73












Background














A UK Bill of Rights
































Additional rights



A Right to Equality





































Rights for victims

























































Responsibilities










































Other issues








Alternative formats




London SW1H 9AJ

Confidentiality























Endnotes 1















Annex F


Consultation Papers






Students in Ireland
































































































































































Jefford Tom

















Annex G








2

Table of Contents

Introduction 4

















3



4






5




Advocate

28

Equivocal 27

Oppose 45



Repeal 12

Retain 88


Repeal4

Retain 96







6

















7










8









9











10










11











12









13





14









15









16


17








18


No 2

Yes 98







19








20








21










22


23






12

35

53

Replace

Sit alongside

Equivocal



24








25










26











27










28



29

Additional rights

Introduction








30

6 7


87








31










32











33

Socio-econom

icR


ents Trial by

Jury

Crim

inal andC

ivil Justice C

hildrensR

ights R

ight toEquality

Environm

ental Rights

Adm

inistrativeJustice

Victim

s Rights

MinorityV

ulnerableG

roups

Other R

ights


0

40

80

120 R

es

po

nd

en

ts







34



A Right to Equality








35












36












37






Rights for Victims








38













39










0

15

30

45

Re

sp

on

de

nts

Ad

vo

ca

ting









40









41












42









43











44










45











46







47


Introduction






48










49











50













51












52



53












54










55










56







57







58









Change the balance




59











60












61






62













63





64








65








66










67








68









69










70











71










72











73







74









75








76








77






78










79













80








81













82
















83











84








85



Annex H




Annex H1






Annex H2








Preamble































Obligations
























Enforcement



Remedies




















Emergencies

















bull Equality

bull Dignity


bull Life




bull Liberty






bull Right to marry


bull Property




















Justiciability





Judicial review













Health care



Education



Housing




















bull Citizenship


bull Children

bull Minorities





Annex H3




























Annex I






Rome 4XI1950























































































































































a is anonymous or


































































































Annex J






Annotations





Introduction













Annotations



(S I 20031887) art 9 Sch 2 para 10(1)














3




Annotations






Legislation






















Annotations















5



Annotations





Public authorities








(4) F11



Annotations


66(4) Sch 18 Pt 5 SI 20091604 art 2(d)(f)







7 Proceedings



















7









Annotations









8 Judicial remedies
















Annotations


9 Judicial acts








9







Annotations


2005109 art 2 Sch

Remedial action




































11






14 Derogations


F17(2)






Annotations




(S I 20031887) art 9 Sch 2 para 10(1)

15 Reservations


Convention and










Annotations




(S I 20031887) art 9 Sch 2 para 10(1)










13






Annotations



(S I 20031887) art 9 Sch 2 para 10(1)


































15









Annotations





278 SI 20061014 art 2 Sch 1 para 11(v)











Supplemental











Annotations








17



































(5) F42

Annotations





19



















(7) F43




Annotations






21



S C H E D U L E S


THE ARTICLES

PART I

THE CONVENTION

RIGHTS AND FREEDOMS

ARTICLE 2

RIGHT TO LIFE





ARTICLE 3



ARTICLE 4











ARTICLE 5














23



ARTICLE 6









ARTICLE 7




ARTICLE 8








ARTICLE 9




ARTICLE 10




ARTICLE 11





25



ARTICLE 12

RIGHT TO MARRY


ARTICLE 14



ARTICLE 16



ARTICLE 17



ARTICLE 18






PART II

THE FIRST PROTOCOL

ARTICLE 1




ARTICLE 2

RIGHT TO EDUCATION


ARTICLE 3



[F44PART 3



Annotations


20041574) art 2(3)



27



PART III

THE SIXTH PROTOCOL


REMEDIAL ORDERS





































29






proposed order)




Annotations




F49

PART I

Annotations


F50

PART I

DEROGATION




Annotations


20051071) art 2

PART II

RESERVATION


Dated 20 March 1952



JUDICIAL PENSIONS










31













Annotations






Table of Contents13



















