A UK Bill of Rights? The Choice Before Us - Volume 2:...

A UK Bill of Rights?

The Choice Before Us

Volume 2: Annexes

December 2012

Members of the Commission on a Bill of Rights 2012

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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 Commissions Interim Advice to Government on Reform of the

European Court of Human Rights 9

Annex C: The Chairs letter to Ministers on Reform of the European Court of Human

Rights 17

Annex D: The Commissions Discussion Paper, Do we need a UK Bill of Rights?, August 2011 25

Annex E: The Commissions Consultation Paper, A Second Consultation, July 2012 45

Annex F: List of Respondents to the Commissions 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


Organisations and individuals with whom the Commission met

Age UK David Anderson, QC Dr Maggie Atkinson, Childrens 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, Queens 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, Queens 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 Thorbjrn 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 Lnning, 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, Queens 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 OBoyle, Deputy Registrar, European Court of Human Rights and other

senior officials of the Registry Colm OCinneide, University College London Baroness Nuala OLoan of Kirkinriola Christine ONeill, 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 Grgoire 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 Womens Help Centre, Handsworth, Birmingham WWF-UK Dr Alison Young, University of Oxford


Annex B

The Commissions 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 9.55 102 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 Commissions considerable thanks to the UKs 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 Courts 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 150,000, 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 Governments 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, the machinery of protection established by the Convention is subsidiary to the national systems protecting human rights1, and by 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 conditions2. 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 Courts 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 legislative, executive and judicial 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 Courts caseload, arising from a particular group of defaulting Member States, is unsustainable and poses a serious threat to the Courts viability and effectiveness. In 2001, the Courts backlog stood at only 18,000 cases. The Evaluation Group established by the Committee of Ministers concluded that:

...the system is seriously overloaded and, with the relatively limited resources available to it, the Courts ability to respond is in danger. ....Immediate action is indispensable if the Court is to remain effective and retain its credibility and authority.3

12. By 2006, the backlog stood at 86,000 cases. A Group of Wise Persons established by the Committee of Ministers reported that:

...the explosion in the number of cases...is now seriously threatening the survival of the machinery for the judicial protection of human rights and the Courts ability to cope with its workload. This dramatic development jeopardises the proper functioning of the Conventions control system.4

13. Against this background, the situation is even more serious today, with a backlog of 150,000 cases, increasing at a rate of 20,000 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 Courts 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:

(t)here is a fundamental conflict between the size of the population who have access to the Court...and the Courts 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 Convention.5

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 States 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 ...primary responsibility for securing the rights and freedoms....with the domestic authorities and particularly the judiciary (of each Member State).6 The Strasbourg court, as the Group reported, should play a subsidiary role, and particularly not the role of court of appeal from national courts.7 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 the primary responsibility for applying Convention standards lies with domestic courts and authorities. The Evaluation Group noted that:

either 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 attention.8

16. The Commission agrees with the observations of the Evaluation Group and the Group of Wise Persons about the Courts essential function, and believes that the eight-fold increase in the size of the Courts 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 just satisfaction

18. The second area for fundamental change concerns the way in which successful Applicants are afforded financial redress. A considerable part of the Courts work relates to the calculation and award of just satisfaction under Article 41 i.e. financial redress in cases where a breach of a Convention right has been found: some 1,500 such awards were made in 2010. In many cases the amounts awarded are small, in some cases as low as 100. 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 if necessary.

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 2006,9 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 just satisfaction.

(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 Conventions 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 Costas 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 judges.10

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 Panels 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.

http:judges.10


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 when Parliament returns in September 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 Courts 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 on my own behalf rather than on behalf of the Commission as a whole 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 Chairs letter to Ministers on

Reform of the European Court of

Human Rights


Sir Leigh Lewis KCB Commission on a Bill of Rights Post point 9.55 102 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

INTRODUCTION

1. I am writing in parallel to my letter of todays date which sets out the Commissions interim advice on reform of the European Court of Human Rights pursuant to the Commissions 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 Courts 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 Courts judges is still being spent on admissibility issues (inadmissible applications are estimated to account for over 90% of the Courts 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 2001.11

Requiring applications to the Court to be signed by a lawyer or NGO; it was clear from the Commissions 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 lawyers 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 Courts 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 procedure 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 Courts case-law, thus providing further guidance in order to assist States Parties in avoiding future violations. 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 potentially at least remove some cases from the Courts 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 procedures.12 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 Courts 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 democratic override 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

http:procedures.12


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 States 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 activism 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 institutions 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 cases 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 Commissions 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.

6. 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 D

The Commissions 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

To investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties.

To examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.

To provide advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of and following the UKs 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 2012.

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.

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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.

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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 fundamental 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 as far as the Crown is concerned 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 a Covenant on Civil and Political Rights, and a Covenant on Economic, Social and Cultural Rights 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 Europes 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 1951,3 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 Ponsonby Rule.4 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 UKs signature of the Convention.5 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 No.1 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 machinery.7 It has not ratified Protocols Nos. 4, 7 nor 12 which contain further rights.8

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.

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Convention rights and freedoms 20. The Convention identifies the following human rights and freedoms:

Right to life (Article 2);

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

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

Right to liberty and security(Article 5);

Right to a fair trial (Article 6);

No punishment without law (Article 7);

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

Freedom of thought, conscience and religion (Article 9);

Freedom of expression (Article 10);

Freedom of peaceful assembly and association (Article 11);

Right to marry (Article 12);

Right to an effective remedy (Article 13);

Prohibition of discrimination (Article 14).

21. Protocol No. 1 includes the following:

Protection of property (Article 1);

Right to education (Article 2);

Right to free elections (Article 3).

Giving effect to the Convention 22. Article 1 of the Convention provides that contracting states must secure to

everyone within their jurisdiction the Convention rights. States and their public authorities legislative, executive, and judicial 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 closed.9 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 months 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 just satisfaction 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 persons 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 party.11 The JCHR scrutinises proposed legislation for compatibility with the UKs 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 Governments 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

http:party.11

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 rights.12 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 victim.13

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 UK.17

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 Convention.18 Similarly the Northern Ireland Assembly does not have competence to legislate in a manner incompatible with the Convention.19

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 Rights.20

43. The Government published its paper A Bill of Rights for Northern Ireland: Next Steps for consultation, and the NIHRC made a written response to that paper on 17 February 2010.21

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http:Rights.20http:Convention.19http:Convention.18http:victim.13http:rights.12

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 2006.24 Legislation that is incompatible with Convention rights is outside of the legislative competence of the Assembly and is liable to be held invalid.25

European Union rights 46. In 2007 the institutions of the European Union proclaimed the EU Charter of

Fundamental Rights.26 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 only when they are implementing Union law.27 The Charter, where it applies, has the same legal force as the Treaties.28 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 law.29

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:

[email protected]

Commission on a Bill of Rights

Postpoint 9.55

102 Petty France

London

SW1H 9AJ

11

http:Treaties.28http:Rights.26http:invalid.25

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 [email protected], telephone us at 020 3334 2486 or write to us at:

Commission on a Bill of Rights Postpoint 9.55 102 Petty France London SW1H 9AJ

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: [email protected]

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 Commissions 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 Commissions 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:

The 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.

The 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.

The 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.

The 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

servants.

2 The Coalitions Programme for Government said: We 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 obligations. See Cabinet Office: http://www.cabinetoffice.gov.uk/sites/default/files/resources/coalition-_programme_for_government.pdf

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

http://www.cabinetoffice.gov.uk/sites/default/files/resources/coalition

ratification (or its equivalent) is effected: Foreign Office, Ponsonby Rule,

http://www.fco.gov.uk/resources/en/pdf/pdf4/fco_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: http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf

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 UK law for convenience, while recognising that there are different laws and courts of England, Northern Ireland, Scotland and Wales.

11 See http://www.parliament.uk/commons/selcom/hrhome.htm

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 http://www.scottishhumanrights.com

18 Section 24(1)(a).

19 Section 6.

20 These included: right to equality and prohibition of discrimination; right to health; education rights; freedom from violence, exploitation and harassment;

14

http:http://www.scottishhumanrights.comhttp://www.parliament.uk/commons/selcom/hrhome.htmhttp://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457http://www.fco.gov.uk/resources/en/pdf/pdf4/fco_pdf_ponsonbyrule

right to identity and culture; right to civil and administrative justice; rights to liberty and fair trial; language rights; rights of victims; democratic rights; right to an adequate standard of living; right to accommodation; right to work; environmental rights; childrens rights.

21 See http://www.nihrc.org/bor

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 (SI2011/1011).

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

26The text of the Charter can be found at http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:303:SOM:en:HTML

27 Article 51.1.

28Treaty on European Union, article 6(1), 2010/C 83/01.

29Treaty on European Union, article 6(3), 2010/C 83/01.

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http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:303:SOM:en:HTMLhttp://www.nihrc.org/bor


Alternative format versions of this report are available on request from [email protected]

16


Annex E

The Commissions Consultation Paper,

A Second Consultation, July 2012


July 2012


Contents

Chairs 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

Childrens rights 61

Environmental rights 61

Balancing certain rights 62

Definition of public authority 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

We hope to hear from you soon. 69

Alternative formats 69

Confidentiality 70

List of Questions in this Consultation Paper 71

Endnotes 73


Chairs 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 Commissions 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 Rights.1

2. In July 2011 we provided interim advice to Government and a parallel letter to Ministers on reform of the Court (see http://www.justice.gov.uk/about/cbr). 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 Commissions webpages (see http://www.justice.gov.uk/about/cbr/consultationprog). 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 the outcomes of which you can read on our website 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 Commissions 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 Commissions meetings for N

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