A UK Bill of Rights? the Choice Before Us, Volume 2: Annexes | 1

A UK Bill of Rights?

The Choice Before Us

Volume 2: Annexes

December 2012

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This publication is available for download on the Commission’s website at www.justice.gov.uk/about/cbr/index.htm

Table of Contents

Annex A: Organisations and individuals with whom the Commission met 3

Annex B: The Commission’s Interim Advice to Government on Reform of the European Court of Human Rights 9

Annex C: The Chair’s letter to Ministers on Reform of the European Court of Human Rights 17

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

Annex E: The Commission’s Consultation Paper, A Second Consultation, July 2012 45

Annex F: List of Respondents to the Commission’s 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

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Annex A

Organisations and individuals with whom the Commission met

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Organisations and individuals with whom the Commission met

 Age UK  David Anderson, QC  Dr Maggie Atkinson, Children’s 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, Queen’s 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

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 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, Queen’s 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  Thorbjørn 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

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 Professor Inge Lønning, 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, Queen’s 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 O’Boyle, Deputy Registrar, European Court of Human Rights and other senior officials of the Registry  Colm O’Cinneide, University College London  Baroness Nuala O’Loan of Kirkinriola  Christine O’Neill, 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

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 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 Grégoire 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  Women’s Help Centre, Handsworth, Birmingham  WWF-UK  Dr Alison Young, University of Oxford

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Annex B

The Commission’s Interim Advice to Government on Reform of the European Court of Human Rights

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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?

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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 Commission’s considerable thanks to the UK’s 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 Court’s 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

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central part of the Government’s 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 rights”1, 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 conditions”2. 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 Court’s 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.

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11. The exponential increase in the Court’s caseload, arising from a particular group of defaulting Member States, is unsustainable and poses a serious threat to the Court’s viability and effectiveness. In 2001, the Court’s 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 Court’s 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 Court’s ability to cope with its workload. This dramatic development jeopardises the proper functioning of the Convention’s 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 Court’s 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 Court’s 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.

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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 Court’s essential function, and believes that the eight-fold increase in the size of the Court’s 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 Court’s 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

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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 Convention’s 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 Costa’s 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 Panel’s 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.

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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 Court’s 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.

Yours sincerely

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

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Annex C

The Chair’s letter to Ministers on Reform of the European Court of Human Rights

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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 today’s date which sets out the Commission’s interim advice on reform of the European Court of Human Rights pursuant to the Commission’s 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 Court’s 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.

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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 Court’s judges is still being spent on admissibility issues (inadmissible applications are estimated to account for over 90% of the Court’s 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

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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 Commission’s 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 lawyer’s 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 Court’s 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 Court’s 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

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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 Court’s 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 Court’s 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

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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 State’s 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 institution’s 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:

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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 case’s 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 Commission’s 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.

Yours sincerely

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

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24 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes

Annex D

The Commission’s Discussion Paper, Do we need a UK Bill of Rights? August 2011

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26 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes

Discussion Paper Do we need a UK Bill of Rights?

August 2011 revised September 2011

Any enquiries regarding this publication and copyright should be sent to us at [email protected]

This publication is available for download on the Commission’s website at www.justice.gov.uk/about/cbr/index.htm

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 UK’s 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.

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 ‘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 Europe’s 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 UK’s 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.

6 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 person’s 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 UK’s 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 Government’s 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 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

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 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 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 Commission’s 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 Commission’s 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 Coalition’s 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 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.

10 We 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

12 Sections 8 and 9.

13 Section 30.

14 Section 57(2).

15 Section 29.

16 The 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 • 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; • children’s rights.

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

22 Section 94.

23 Section 81(1).

24 The Government of Wales Act 2006 (Commencement of Assembly Act Provisions, Transitional and Saving Provisions and Modifications) Order 2011 (SI2011/1011).

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

26 The 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.

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

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

©Members of the Commission on a Bill of Rights 2011

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

Annex E

The Commission’s Consultation Paper, A Second Consultation, July 2012

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46 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes

July 2012

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Any enquiries regarding this publication and copyright should be sent to us at [email protected]

This publication is available for download on the Commission’s website at www.justice.gov.uk/about/cbr/index.htm

48 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes Contents

Chair’s 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 Children’s 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

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Chair’s 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 Commission’s 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

50 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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 Commission’s webpages (see http://www.justice.gov.uk/about/cbr/consultation prog). 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 Commission’s 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 Commission’s meetings for November 2011, December 2011 and January 2012 respectively: http://www.justice.gov.uk/about/cbr/meetings); 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 http://www.justice.gov.uk/about/cbr).

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

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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 people’s 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 “HRA (Human Rights Act) minus”, 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.

52 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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

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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 ‘incorporated’ 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 rights.2

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?

54 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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 and/or 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 i.e. Cyprus, Malta and Ireland as well as the UK’s 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

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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 UK’s 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 UK’s 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 Act.3 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

56 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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: “Everyone is equal before the law.”

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: “Any 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 prohibited.”

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: “(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 1.”

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 – 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 “…save as is reasonable in an open and democratic society.”

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

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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 “civil rights and obligations”, 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: “1. 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 decision.”

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 trials.4 Others question whether jury trial

58 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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: “11. Any person charged with an offence has the right… (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 punishment.”

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 ‘confront’ one’s accuser and witnesses and the right of access to a court. Some also propose that any person facing a so-called “civil penalty” 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:

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- highlighting the state’s positive obligations to protect individuals’ right to life under the Convention; - highlighting the protection afforded by the criminal law i.e. 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; and/or - setting out procedural rights, such as the Victim’s 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: “1. Everyone has the right to have access to a.health care services, including reproductive health care; b.sufficient food and water; and c.social 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 treatment.”

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.

60 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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.

Children’s rights 52. Proponents argue that neither the European Convention on Human Rights nor the Human Rights Act provide adequate protection for children’s rights. They point out that the UK is bound under the United Nations Convention on the Rights of the Child to provide certain children’s 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 children’s rights into one binding and enforceable domestic instrument. Others, however, believe that children’s 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: “1. 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 child's 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 interests”.

54. We would welcome views on the principle and possible wording of children’s 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.

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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: “Everyone 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 development.” 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

62 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes Act provides some guidance to the courts on how to proceed in such circumstances.5 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 ‘public authority’

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 person’s 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 ‘public authority’ includes Government departments, local authorities, statutory bodies and courts as well as some private bodies which exercise ‘public functions’ 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 services.7 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 ‘public authority’? If so, how?

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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 person’s right to religious observance must include the same right for others, even if their beliefs are anathema. And a person’s right to free speech must allow for another’s 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 individual’s 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 ‘deserving’ 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

64 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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; i.e. 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 "self standing" 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?

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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 “take into account” 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 and/or 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 “may” 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 ‘into account’ 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 ‘declaration of incompatibility’. 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

66 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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 Court’s 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 UK’s 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 and/or 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 Scotland’s constitutional future and in the

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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 statutes.8

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 and/or 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?

68 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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 Commission’s 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 Commission’s seminars (see http://www.justice.gov.uk/about/cbr).

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 hope to hear from you soon. 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: [email protected] Commission on a Bill of Rights Postpoint 9.55 102 Petty France London SW1H 9AJ

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

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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].

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 Commission’s 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.

70 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes List of Questions in this Consultation Paper

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

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

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?

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?

Q11: Should the duty on courts to take relevant Strasbourg case law ‘into account’ be maintained or modified? If modified, how and with what aim?

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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?

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?

72 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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 Commission’s Terms of Reference are: “...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 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 UK’s 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 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 i.e. 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 ‘Diplock’ 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 “have particular regard to” 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.

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74 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes Annex F

List of Respondents to the Commission’s Discussion and Consultation Papers

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List of respondents to the Commission’s Consultation Paper: A Second Consultation

Respondent organisations and bodies  Gender Identity Research and Education  Haldane Society of Socialist Lawyers, The Responses from groups of organisations:  Hodge Jones and Allen LLP  Christian Concern and The Christian Legal  Howard League for Penal Reform Centre  Human Rights Consortium  National Union of Students and Union of Students in Ireland  Imkaan  Immigration Law Practitioners’ Association Responses from single organisations and  Include Youth bodies:  Irish Congress of Trade Union – Northern  Action in Hearing Loss Ireland Committee  Administrative Justice and Tribunal Council  Irish Travellers Movement in Britain  Age UK  Jigsaw  AIRE Centre  JUSTICE  All Party Parliamentary Group on Gypsies and  Law Society of Scotland, The Travellers  Legal Committee of the District Bench  Amnesty International UK (Magistrates’ Courts)  Analytic Art Limited  Liberty  Bar Council  Macmillan Cancer Support  British Academy  Menter  British Association of Social Workers  Mind  British Institute of Human Rights (BIHR)  Minister of Justice for Northern Ireland, David  British Irish Rights Watch Ford M.L.A  Care Quality Commission  National Aids Trust  Children in Scotland  National Federation of the Gypsy Liaison  Children’s Commissioner Groups, The  Children’s Food Trust  National LGB&T Partnership  Children’s Law Centre  No Recourse to Public Funds Network  Children’s Right Alliance for England  Northern Ireland Council for Ethnic Minorities  Citizen’s Advice Bureau  Northern Ireland Council for Integrated Education  Civil Court Users Association  Northern Ireland Human Rights Commission  Committee on Administration of Justice  Northern Ireland Public Service Alliance  Community Law Partnership  NSPCC  Community Organisations of South Tyrone and Area Ltd  Older People’s Commissioner for Wales  Darbari Trust UK, The  Parliament for Wales Campaign  Discrimination Law Association  Parliamentary and Health Service Ombudsman  Diverse Cymru  Pembrokeshire People’s First  Employment Law Association  PHG Foundation  End Violence Against Women  Pobal  Equality and Diversity Forum  René Cassin  Equality and Human Rights Commission  Residential Landlord Association  Faculty of Advocates  Rights of the Child UK (ROCK)  Family Law Society  Royal College of General Practitioners  Garden Court Chambers

76 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Royal National Institute of Blind People  UK People’s Health Movement  SAMH  Ulster Human Rights Watch  Save the Children  UNICEF UK  Scope  UNISON  Scottish Court Service  Unite Trade Union  Scottish Government - Roseanna Cunningham  University of Cambridge – Centre for Public MSP, Minister for Community Safety and Law Legal Affairs  University of Derby, School of Law and  Scottish Human Rights Commission Criminology and Amnesty International  Senators of the College of Justice  University of East London – Human Rights  Sheffield Law Centre Law Model Team  Sinn Féin  Wales Observatory on Human Rights for  Slough Refugee Support Children and Young People  Society of Editors  Wessex Regionalist Party  Sussex University – Centre for  Welsh Government Responsibilities, Rights and Law  Wild Law UK  Thompson Solicitors  Wish  Training for Women Network Ltd  Women’s Resource Centre  UK Association of Gypsy Women  WWF-UK  UK Independence Party (UKIP)

List of Individual Respondents

Responses from more than one person:  Bindman QC, Sir Geoffrey  Klug, Professor Francesca and Williams, Amy  Birkby, Jane Ruth  Bishop, Ronald Barry  Edwards, Rev Aled and Lewis QC, Clive  Bobbin, Rita  Faris, Neil; Garrett, Brian; and McAteer,  Boult, Ben Ciaran  Broadhurst, Robert  Wood KCMG, Sir Michael and Wilmshurst  Broadhurst, Stephen CMG, Elizabeth  Bunting, Dan  Morris, David and Kathleen  Burdett, David  Radlett, Susan and David  Bush Malcolm

Responses from individuals:  Cantwell, Rosemary  Anderson, Andrew  Carver, David  Anonymous 1  Chandler, Karen  Anonymous 2  Coleman, Tony  Anonymous 3  Cranmer, Frank  Anonymous 4  Crawford, Michael. H.  Anonymous 5  Curtis, G.  Baister, Dr Stephen  Davis, David  Baker, Dr Dennis  De Londras, Professor Fiona  Baynes, Tim  De Rivaz, Richard  Beesley CDR, Derek  Dent, Simon  Beirne, Maggie  Devaney, M.J.  Dove, Nicholas R.  Doczi, Nic

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 Duff MEP, Andrew  Lindsay, Tony  Dunsmore, David L.  Manning, Paul  Elphicke MP, Charlie  Marsons, Lee  Farry, Richard  Marthews, Gregory  Fell, D  McKenzie, Neil,  Fletcher, Peter  Mead, Professor David  Garbutt, Andrew  Montgomery, Sylvie  Gaur, Navodaya  Morgan, Dr Austen  Gibbs, Roger  Nash, Paul  Griffin, Lee  Nock, Robert  Gwynne, Stephen  Norris, Michael  Halford, John  Palmer, Anne  Hargreaves, Peter  Parker, Alan  Hart, Jean  Parkhouse, Richard  Healy-Birt, Eleanor  Peterson, Judy  Hemming MP, John  Poulton, Rex  Hockman QC, Stephen  Riches, Brian  Hodge, Canon Michael  Robinson, Anthony  Hudson, John R  Ruckman, Neil  Isherwood, Kate  Sarah  Johnson, Paul  Scarborough, A.N.  Jones, Jonathan  Sears, John B.  Jones, Mike  Shaw, Mike  Jull, Peter  Silver, Mervyn  King, Dr Jeff  Silvester, Fred  Kirk, Ian  Smith, Ernest  Kissane, John  Stuttaford, Maria  Kitching, Brian  Taylor, John  Lasenby, Sarah  Van Bueren, Professor Geraldine  Last, Lisa  Walinets, Stanley  Lewis, Jack  Wall, Alec  Lewis, Jonathan M (Immigration Judge)  Wheeler, Andy  Lewis, Professor C.G.  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  Aldridge, Kristi  Afifi, Adam  Aleya, H.  Agustian, Hendra  Allan, Robert  Ahmed, Tawhida  Ambler, Kris  Akehurst, Susanna  Amica, Christine  Andersen, Hilde  Amjad, Maryam

78 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  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, H.J.  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.

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 Clarke, Diana  Dindjer, Hsan  Clarke, Ross  Doggett, Anthony  Clarke, Stephen  Doonan, Mary  Clayton, Hannah  Doran, Patty  Clissett, Patsy  Doyle, Alexandra  Cochrane, Afton  Duckworth, Stuart  Cole, Stephanie  Duff, Prof Mac  Collins, Aidan  Duffin, Nicholas  Collins, Kara  Duffin, Sally  Collins, Michael  Duffy, Cubob  Cooke, Frazer  Dunford, Victoria  Cooper, Hilary  Dyer, Liz  Copson, Julia  Eaglesham, David  Corcoran, Amy  Earnshaw, Ryan  Corcoran, Erin Sutherland  Edwards, Philip  Cornejo, Jonathan  Egan, Blaise F  Cotgrave, James  Egerton, Bridget  Course, Hilary  Elliott, Dr Mark  Courtois, Elizabeth  Elliott, Leanne  Cowan, Alan  Elliott, Mary-Lou  Cowell, Frederick  Elliott, Ula  Cowell, Victoria  Ellis, Brenda  Cowland, Janet  Ellis, Karen  Coxhead, Malcolm  Elwood, Ann  Crawford, Abby  Emmanuel, Sunday Taiwo  Crowther, Neil  Emmett, Sarah  Cummins, Ashley  Ettles James  Da Silva, Luis  Evans, Pamela  Dangerfield, Alison  Farrell-Deveau, Mike  Dania, Khair  Fearn, Melvyn  Daniel, Nick  Feminist Revolution Network  Davies, David  Fench, Paul  Davies, Jason  Fenton, Wilma  Davies, Michelle  Ferguson Dugald  Davison, M.  Ferguson, Sheila  Dawkins, Alistair  Ferreira, Solange  Daycock, Catherine  Finnegan, Gemma  Debra  Fitchie, Sharon  De Paula Dos Santos, Vicente  Flary, Reid  Deacon, Hannah  Forrest, Stephen  Delord, Bernie  Foulger, Steve  Devaney, Sarah  Franklin, Kaliya  Devilly, Anthony  Fraser, Joanne  Devlin, Nicholas  French, Miranda  Dew, Chris  Frisby, Andy  Gage, Charlotte  Fox, Zoe

80 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Gale, Rhianon  Hayes, Kate  Gale, Sian  Haywood-Grinnell, Simon  Garcia, Aaron  Hazelgrove, Jack  Gardner, Carl  Head, Karen  Garner, Stephanie  Heath, Pauline  Gashi, Mimoza  Higson, Coral  Gault, Katherine  Hill, Gary  Gavin, Michelle  Hill, Jackie  Gentle, Emma  Hill, Katherine  Gibbons, Aisha  Hinksman, Lucy  Gibbons, Catherine  Holley, Catherine  Gillespie, Robert  Holt, Anne  Girvin-Baker, Jennifer  Hosali, Sanchita  Glenister, Justin  Hosking, Philip R.  Glover, Tiffany  Hotchen, Rebecca  Goa, Fabien  Howe, Courtenay  Gordon Jane  Howes, Laurie  Gordon, Deuchars  Howes, Sophie  Gough, Wendy  Huggas, Guelma  Graham Smith  Hughes, Jonathan  Graham Wood, Camilla  Hunt, Matthew  Green, Alexander  Hurley, Marie  Greenwood, Anne  Hurley, Marcus  Gregg, Andy  Hutchings, Danielle  Gretton, Cosima  Hutton, Emma  Griffin, Nicholas  Hyde, Adrian  Griffins, Kerry  Hyde, Cern  Grimes, Dee  Irwin, Anne-Marie  Grubeck, Nikoluaus  Jack, Deborah  Guerrero-Avila, Juan C.  Jack, Steve  Gundersrud, Hanne  Jackson, Daniel  Gupta, Kapil  James, Lisa  Haggas, Stuart  Jefferson, Alice  Hall, Natalie  Jeffrey, Emily  Hammond, John  Jenkins, Marge  Hampton, Joe  Jessop, Robert  Hand, Meraud Ferguson  Jolly, Schona  Hargrove, Paul  Jones, Claire  Harle, Catherine  Jones, Dennis  Harley, Lowenna  Jones, Franstine  Harley, Michael  Jones, Geraint  Harris, Elizabeth  Jones, Heather  Harris, Marie  Jones, Huw D  Harrison, Rae  Jones, Katie  Harty, Lowenna  Jordan, Christopher Brian  Jorgensen, Katrine  Jordan, Gail

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 Kashiko, Alex  Lewis, Sian  Kaye, Andrew  Lewis, Alan  Kazantzis, Miranda  Lewis, Emma  Kearon, Julie  Lewis, Gemma  Kemmy, Julie  Lieberman, Nicole  Kench, Jan  Lindsay, Steven  Kenningham, Sarah  Linton, Suzannah  Keogh, Chris  Lisa  Keogh, Hannah  Llewellyn, Mike  Khalid, Ali  Lombardi, Andy  Khalil, Haleem  Long, Rev. Dr P.R.  Khan, Shoaib M  Long, Suzanne  Kidner, Chris  Longworth, Jackie  King, Jennifer  Lopes, Solange  King, Joan  Loveday  Kirk, Barbara  Lovell, Jacqui  Kirk, Elinor  Lumsdaine, David  Kirkpartrick, Catriona  Lumsdaine, Naomi  Kirkpatrick, Stewart  Lux  Kirton-Darling, Edward  Lyon, Kath  Kloythanomsup, Jeff  Lyons, Donal  Knight, Eric  MacDonald, Tim  Koppel, Dr Hano  Macehiter, Neil  Korel, Melek  Macintyre, Jess  Korula, A.R.  MacKinnon, Carla  Koszerek, Pippa  Macleod, Colin  Kurowski, Katrina  Malcolm, Nicole  L  Maloney, Ted  Laidlaw, Jaana  Manasse, Andrew  Lal Gogna, Jagdish  Mann, Sarah  Lambert, Tom  Manton, Richard  Lane, Polly  Mardell, Jason  Lang, Celia  Marshall, Dr Jill  Lang, Graham  Martinez, Pedro  Langdon, Mark  Mason, Chris  Langhorn, Louise  Mather, Tom  Langhorn, Stuart  Matthews, A.  Lapins, Sacha  Matthews, Lynn and Maisha  Larby, Tasmin  Maunder-Ruck, Helen  Larminie, Elizabeth  Max  Lawson-Frost, Sasha  Maxwell-Cox, Kyle  Leicester, Alistair  May, Claire  Lennon-Wood, Jenny  Mayer, Henry  Lev, Joseph  Mayer, Luiz Hemrique  Levin, Jacquie  McAdam, Andrew  McCarthy, Nicola  McCaig, Chris

82 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  McConnell, Martin Sean  Nicol, Jillian  McDermott, Yvonne  Nicol, Senga  McGhie, Fiona  Niyoti, H  McGlone, Ann  Norton, Eric  McGuire, Gerry  Norton, Steve  McKenna, Linda  Nunn, Sandra  McKeown, Christiane  Nurley, Marcus  McKeown, Peter  Nuruzzaman, Mohammed  McLaughlin, Sian  Nyatsanza, Kudakwashe  McMaster, Charis  O’Connor, Jude  McMaster, Nalini  O’Donnell, Anne  McSherry, Sarah  O’Donovan, Jane  Mercedes  O’Neill, Christopher  Mercer, Jonathan  O’Reilly, Kevin  Mercier, Guillaume  Oakes Eamonn  Meredith, Nathan  Ofek, Yonatan  Merriman, Andrew  Olaiya, Ade  Merriman, Daniel  Orieso, Chanel  Mihangel, Anna  Ostrowski, Nicholas  MilIett, Vince  Owen, Trevor  Millard, Becca  Paines, Rupert  Miller, Alison  Panas, Charlotte  Miller, Laura  Papworth, Charlotte  Mills, Claudia  Parker, Laura  Mills, Stuart  Parker, Lochlinn  Milne QC, Alexander  Parker, Rosalyn  Milner, James  Pasha, Maryam  Mish ,Loraine  Pate, Deborah  Mitchell, Elizabeth E  Patel, Shereen  Mitchell, Phillip  Patrick, John  Molloy, Fionna  Paule  Moloney, Darren  Pavan  Monestier, Carterina  Payne, H R  Mooney, Adam  Pearson, Dr Mark  Mooney, Stephanie  Peecock, Simon  Morgan, Christine  Pellett, David  Morgan, Karen  Perez, Moises Pestana  Morris, Jackie  Perry, Paul  Mottram, Robert  Pershad, Pratima  Mushtaq Farhan  Peter Outlaw  Nekati, Phathekile  Peter, Sunday  Newby, Leanne  Petford, John  Newton, Kate Marie  Peto, Harry  Nicholas, Leila  Pettigrew, Judith  Nichols, Tim  Pierrot, Eirwen  Plajerova, Eva  Pike, Dr Lindsey

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 Poltock, Alison  Schmidt, Evelyne  Presson, Kitt  Scouller, Charlie  Priaulx, Michael  Scriven, Jane  Priesley, Bill  Senu, Oluwafemi  Qwarnstrom, Andrea  Sergeant, Robin  Radcliffe, Sarah  Series, Lucy  Raeburn, Mark  Shah, Deepa  Ramanan, Abi  Sharp, Anna  Ramsden, Laura  Shearer, Kirsten  Redman, Sarah  Shew, Michael and Francesca  Redmond, Christine  Simblet, Stephen  Reece, Michelle  Simmons, Rob  Reid, Bertrar  Simpson, David  Rendell, Dr Margherita  Singh Sarah, Louise  Rendell, Stephen  Skinner, Lee  Richards, Brian  Smith, Andy  Richards, Steven  Smith, Calvin  Richardson, Lisa  Smith, Mark  Ridley. Simon  Smith, Sally  Roberts, Caroline  Snow, Tracey  Roberts, Jo  Sonvico, Gianni  Roberts, Nia  Sosseh, Christina  Roberts, Stephen  Speight, H.  Robinson, Sam  Speyer, Elaine  Rodger, Alan  Spira, Louise  Rodgers, Lesley  Stables, Paul  Roe, Lynn  Stephen  Rogers, Harry  Stephens, Daniel  Rothschild, Sylvia  Stevens, J.J.  Rook, Alex  Stevenson, Claire  Rooke, Kezia  Stewart, Alasdair  Rosser, Gareth  Stinson, Hanne  Rotcaig, Celine  Stonebanks, Lauren  R.T.  Stratton, Tony  Rugg, Chris  Sturtivant, Ed  Ruscoe, Tim  Sulu, Omotolani  Ryan Bestford  Sun, Mark  Sabiri, Adil  Susan Keyes  Siddiq  Sutherland, Sara  Saiz, Ignacio  Talbot, Marc  Samphire, Stephanie  Tandy, Jason  Sarai, Mrs  Tarrant, Megan  Sarhandi, Sarah  Tarvit, Jenny  Saridar, Tahani  Tate, Rhiannon  Schinas, Ceasar  Taylor, S.  Thacker, Rajeev  Ten Veen, Rianne C.

84 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Thomas, Alan  Watts, Anne  Thomas, Lorraine  Watts, Kevin  Thomas, Sarah  Weber, Rosa  Thompson, Alice  Wells, Mrs  Thwaite, Anna  West, Maggie  Tilan, Sheila  West, Steve  Tipple, Hannah  Weston, James  Todd, Claire  Wetherall, Michael  Tomlinson, Eleanor  Whiteley, Kit  Tomlinson, Jane  Whitwell, Chris  Tomlinson, Sue  Wildbore, Helen  Toonen, Don  Wilkinson, Stephen  Trivier, Elisabeth  Williams, David  Tyson, Clare  Williams, Amy  Underwood, Kay  Williams, Jack R  Vasista, Veena  Williamson, Dr Cort  Vaughan, Dan  Williamson, James  Veale, Chris  Willis, Louise  Vujasin, Jane  Wilson, Jane  Wales, Dean  Wood Oliver  Walker, Elizabeth  Woodward, Francesca  Walker, Mhairi  Woollen, William  Wall, Michelle  Worby, Dorroch  Wallwork, Ryan  Wright, Emily  Walters, Dawn  Wright, Jane  Wand, Daniel  Wright, Yvonne  Warburton, Karen  Wrixon, Laura  Ward, G  Wyatta, Abigail  Warne, Adam  Yeo, Rebecca  Warner, Ian  Yeomans, Annie  Warner, Jan  Yorke, Emma  Watson, Martin  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  Alexander, Deidre  Addis, Chris  Alexander, Geraldine  Aiken Deborah,  Alger, Marie  Aiken, Bryony  Allen, Carl  Alexander James  Allen, Charlotte  Allison, Laura  Allen, Jonathan

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 Amm, Bavechira  Blair, Julie  Anderson Caroline  Blake, Glen  Anderson, Andy  Blakely, Sonya  Anderson, Ashlyn  Blythin, Joshua  Anderson, Peter  Bobb, Jane  Andrew, Gemma  Bodimon, Qisi  Annette, J.C.  Bofire, Richard  Armstrong, Derek  Bond, C.  Armstrong, Kellie  Bond, Victoria  Armstrong, Naomi  Bonner, Matthew  Armstrong, Sophie  Bono, Sergio  Ashby, Shirley  Bothwell, David  Aspin, Natalie  Boyce, Leya  Austin, Sharon  Boyce, Paddy  Autumn, Kitty  Boyce, Sara  Bailey, Michael  Boyd, David  Bailie, Kristopher  Boyle, Sara-Lynne  Bailey, Ursula  Bradford, Michelle  Baird, Vanessa  Bradford, Toby  Bakerell, Niall  Bradley, Connor  Ball, Claire  Bradley, Fiachara  Bamerjee, Urbi  Bradley, Glenn  Banks, Caroline  Bradley, John  Bannon, Kieran  Bradley, Patrick  Barfoot, Peter  Brady, Hugh  Barnes, Snelbie  Brennan, Kirsty  Barrett, Dan  Brennan, Stephen  Barrett, Karen  Brian, Glen  Bashford Christina  Briggs, Claire  Basketfield, Neil  Broderick, Georgina  Baylie, Christopher  Brooker, Timothy  Beck, Robert  Brotto, Melisa  Begley, Richard  Brown, Eva  Beirne, Maggie  Brown, Fred  Belch, Gillian  Brown, Kevin  Bell, Clare  Brown, Leone  Bell, James  Brown, Una  Belshaw, Melissa  Browne, Nicola  Berchlord, Eva  Buchanan, Emma  Best, Laura  Buchanan, Pauline  Birel, Tom  Buglass, Iain  Birkett, Stephen  Bunting, Deaglan  Biscon, Andrew  Bunting, Sara  Black, Gerard  Burke, Leona  Black, John  Burke, Raymond  Burn, Deborah  Burme, Dylan

86 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Burns, Brendan  Carberry, Jessica  Burns, Chelsey  Carberry, Lauren  Burns, Colin  Carberry, Matthew  Burns, Emma  Carberry, Molly  Burns, Jennifer  Carberry, Ronan  Butler, Caroline  Carberry, Sean  Butler, Elaine  Carberry, Sinead  Butler, Fiona  Carberry, Stacey  Butler, Gerald  Carchrie, Campbell Michael  Byle, Colette  Carla-Ella  Byrne Grainie  Carr, Brendan  Byrne, Carol  Carroll, Gerry  Byrne, Eoghan  Carter, Michael  Byrne, Jo  Cartmill, Austin  Byrne, Roisin  Carton, Desman  Byrne, Shannan  Carton, Gabrielle  Caddell, Maria  Carville, Arnold  Caffrey, Mark  Carville, Conor  Cahoon, Louise  Carville, Joseph  Cairns, Kaitlyn  Casiely, Liam  Caleyron, Nathalie  Caskey, Caroline  Callaghan, Brenda  Cassidy, Rhoda  Cameron, Alex  Cavanagh, Chris  Campbell, Claire  Chan, Karmeng  Campbell, Elaine  Chow, Natasha  Campbell, Emma  Citus, Nami  Campbell, Emma  Clarke, Emma  Campbell, Emma  Clarke, Gemma  Campbell, Jonathan  Clarke, Harry  Campbell, Peter  Clarke, Karen  Campbell, Philip  Clarke, Lincoln  Campbell, Rebecca  Clarke, Natasha  Campbell, Stephanie  Clarke, Stephen  Campbell, Stuart  Clayton, John  Campion, Darren  Cleland, Claire  Campion, Kerry  Clenagham, Shea  Capson, Cathy  Coates, Sarah  Captain, Elaine  Colguhoun, Joshua  Carberry, Amy  Collins, Amy  Carberry, Anne  Collins, Mairead  Carberry, Anne  Collins, Mairead  Carberry, Eamon  Colombo, Seán  Carberry, Eve  Conbay, Patriicia  Carberry, Gerry  Conchatheir, Ciaran  Carberry, Gracie  Conlon, Nuda  Connallason, Shaun  Conlon, Sean Paul

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 Connelly, Conor  Davis, Naomi  Connolly, Ita  Dawson, Emily  Connor, Naomi  Dehwar, Saad Ullah  Conor, Oliver  Deiana, Maria  Conwell, Eileen  Delaney, Sarah  Cooney, Julie  Delargy, Sarah  Cooper, Kevin  Derlin, Aimee  Cooper, Stephen  Deschatrettes, Nicolas  Corbett, Orla  Devine, Claire  Corrigan, Patrick  Devine, Leone  Corrigan, Sarah  Devlin, Anthony  Corthy, Lynsey  Devlin, Madonna  Cousins, Rooney  Dickson, Nicole  Coyle, Louise  Diffin, Daniel  Craney, Eric  Diffley, Maria  Crawford, Brian  Dillon, Jarrett  Crawford, Brian  Dineen, Rebecca  Crawford, Jonathan  Dodds, Heather  Crawford, Lucy  Doherty, Adam  Crawford, Rebecca  Doherty, Clare  Cromar-Brooks, Scott  Doherty, Gary  Crooks, Darren  Doherty, Hayley  Crook, Loraine  Doherty, Joanne Mary  Crozier, Matthew  Doherty, Simon  Cullen, Celine  Doherty, Sophie  Cullen, Damien  Donaghy, Matthew  Cullen, Gareth  Donald, Kate  Cullen, Hollie  Donaldson, Rachelle  Cullen, Mark  Donnan, Stephen  Cullen, Michael  Donnelly, Ann  Cullen, Michael  Donnelly, Ann  Cullen, Theresa  Donnelly, Conor  Cullinane, Olivia  Donnelly, E.  Curran, Barbara  Donnelly, Joseph  Curran, Paul  Donnelly, Laurence  Curran, Phil  Donnelly, Natalie  Curran, Sharon  Donnelly, Roisin  Curtis, Owen  Donnelly, Sarah  Cusmeachin, Martine J  Donnelly, Sheila  Daly, Helena  Donnelly, Siobhan  Dang, Andy  Donnelly, D.  Davey, Emma  Doorley, Pamela  Davey, Jemma  Doran, Raymond  Davies, Ciaran  Dorman, Danny  Davis, Lorraine  Dormar, Atoine  Dorrachs, Kathryn  Dornan, Bill

88 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Dougan, Dearbhail  Flynn Paul  Douglas, Colin  Flynn, Eileen  Douglas, F S.  Flynn, Helen  Douglas, Rabie  Flynn, Jenny  Douglas, Stephen  Flynn, Leanne  Downey, Declan  Flynn, Michael  Dugan, Perry  Flynn, Paul  Dunn, S.  Flynn, Roger  Dunwoody, Karen  Flynn, Rosie  Dunyer, Martha  Foster, Teddy  Dutton, Dan  Fox, Pat  Dwyer, Nick  Fraser, M  Elliott, Lauren  French, Alison  Elliott, Nicole  Friel, Cath  Ellis, Holly  Friel, Eunan  Ellison, James  Friel, Mary  Ethna Irvine,  Fulton, K  Evans, Steven  Fulton, Sadie  Fahy, Eimear  Fuy, Jade  Fallis, Stuart  G B  Faria-Vare, Asha  Gallagher, Amie  Farinaite, Aoneta  Gallagher, Katie  Farrell, Joanne  Gallagher, Muirne  Farris, Timothy  Gallen, Lorraine  Faye, Una  Gallen, Marie  Fearon, Judith  Galloway, Margaret  Fearon, Sean  Garbutt, Georgina  Fegan, Jennifer  Garcia, Paulino  Fennell PhD, Geraldine  Garland, Ryan  Ferguson, Lynn  Gartlin, James  Ferran, Catherine  Gates, Emer  Ferran, Sinead  Gaughan, Daniel  Ferris, Colin  Gault, Lauren  Ferris, Dermot  Geddis, Finn  Finn, Moore  Gentlemann, Doris  Finnegan, Sarah  Geoghegan, Marion  Finnegan, Tomas  Gerard, Sally  Fitzgerald, Eisplan  Ghansah, Ebenezer  Fitzjimon Anna  Glasgow, Declan  Fitzsimons, Emma  Gibb, Andy  Flankin, Leighane  Gibnay, Rowan  Fleming, Sarah  Gibson, Diane  Flett, Jolena  Gill, Craig  Flinn, Colin  Gilmore, Aideen  Flletcher, Andrew  Girvan, Davina  Glover, Suzanne  Glass, Aoife

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 Gonsalves, John  Hanill, Adrian  Goodly, Matthew  Hanley, Jane  Gordon, Alistair  Hannity, Bronagh  Gordon, David  Hanratty, Kevin  Gordon, Peter  Hanratty, Michael  Gorman, Eileen  Hanratty, Rachael  Gorman, Tomás  Hanson, Tom  Gormley, John  Hardy, Ben  Gormley, Michelle  Harley, Linda  Gornely, Orla  Harris, Ariya  Graham, Irene  Hartin, Paul  Graham, James  Harvey, Steve  Graham, Jonathan  Harvey, Steven  Graham, Karlane  Hassan, Daniel  Graham, Keith  Haughey, Ryan  Graham, Kim  Haughley J.  Graham, Stephen  Hawley, Claire  Grant, Sarah  Hawthorne, Laura  Gray, R.  Haydon, Laura  Green, J.  Healey, Andrew  Greenan, Sean  Heaney, Claire  Greener-Simon, Kayleigh  Hearst, Francis  Greenwood, Stephanie  Henderson, D.  Greer, Nora  Hennessy, Anne  Greer, Tracy  Henriquez, Victor  Greglegan, Sandra  Henry, K.  Grehan, Gerry  Henry, Kevin  Gribbin, John  Henry, Lesley-Ann  Gribbin, Mary  Herron, Deborah  Gribbon, D.  Higgins, Laurie  Grier, Tommy  Higgins, Louise  Grimason, R.J.  Hill, Caroline  Guiles, Valerie  Hill, Danni  Guinn, Robert  Hill, Rowland  Haate, Dooley  Hinds, Thom  Haggon, Ann  Hodgins, Jennifer  Hainsworth, Paul  Hoey, Kelly  Hall, Dan  Hoffman, D A  Hall, Kim  Hogarty, Andrea  Halliday, David  Hogg, Chris  Hamilton, Josh  Hoggan, Rachel  Hamilton, Joy  Holding, V.  Hamilton, Mike  Holland, Grainne  Hamilton, Paul  Holland, V.  Hampton, Olivia  Holmes, Valerie  Horrow, Gay  Keenan, G.

90 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Horte, Bryan  Kavanagh, Patricia  Houston, Stephen  Keegan, Amy  Houston, Tony  Keeran, Molly  Howard, Beryl  Kelly MBE, Mark  Howard, James  Kelly, Allan  Howard, Roby  Kelly, Amy  Howath, Victoria  Kelly, Bernie  Howse, Stephen  Kelly, Conor  Hudson, Lynsey  Kelly, Donal  Hughes, Breedsagh  Kelly, Geraldine  Hughes, Eoin  Kelly, Paddy  Hughes, Katrina  Kelly, Samantha  Hughes, Kevin  Kelly, Sheila  Hughes, Neal  Kennedy, S.  Hughes, Nicholas  Kerr, Peter  Hughes, O.  Kerr, R.  Hussain, Lisa  Kettyles, Davy  Hussen, Serwan  Khan, Hammad  Hutton, Dorothy  Khattak, David  Hyndman, Mari  Kienan, Paula  Jaho, Greg  Kieran, Dorragh  Jallow, Rosetta,  Killy, Rebecca  Jamison, Fiona  King, Johanna  Jampen, Virginia  King, William  Janagh, Peter  Kinnear, Lauren  Jedten, Hilary  Kinney, Jessica  Jennings, Jillan  Kirby, David  Johnson ,Catherine  Klisa, Alex  Johnson, Terry  Knox, James  Johnston, Irene  Kohanoff, Anna  Johnston, Lesley  Kolbohm, Cara  Johnston, Noeline  Kolbohm, Luke  Johnston, Seamen  Kolbohm, Madonna  Johnston, William  Kontorravdis, Elli  Johnston, Sean  Kristiansen, Mikali  Jolliffe, Lucy  Kunjumon, Ivochen  Jones, B.  Kunjumon, Job  Jones, Graham  Kunjumon, John  Jones, Tanya  Kunjumon, Lal A.  Jopat, Sandesh  Lambkin, Angus  Kalke, Sabine  Lappin, Brendan  Kane, Bobby  Larkin, James  Kannawary, Ellen Rose  Larmour, William James  Karan, Else  Law, Joe  Kaur, J.  Leatham, Paula  Lee, Gareth  Leckey, Alison

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 Lewsley, Joe  Macky, Colum  Liddy, Catherine  MacPhillips, Caroline  Liddy, Conor  Maeve, Nugent  Liddy, James  Maffini, Stefano  Liddy, Morgan  Magee, Brian  Liddy, Orla  MaGee, Dionne  Liddy, Sinead  MaGee, Kerianne  Lings, Alastair  Magee, Laura  Linton, Judy  Magee, Shannon  Lloyd, Kiern  Maguire, Aodhon  Lodwick, Penny  Maguire, Christopher  Logan, Amy  Maguire, Conor  Logan, Carahan  Maguire, Daniel  Loughran, Tomas,  Maguire, Kevin  Loughrey, Stephen  Maguire, Michael  Lowe, Johnny  Maguire, Miread  Lowry, John  Maguire, Gerry  Ludlow, Maria  Mahaffy, Joanne  Lui, Row Yee  Mahaffy, Lia  Lundy, Grace  Mahaffy, Matthew  Lutton, Rebecca  Mahaffy, Thomas  Lydon, Darragh  Maher, Greg  Lydon, Myra  Mairie, Paula  Lyle, Timmy  Malgaonkar, Bhushan  Lyle-Toal, Trevor  Mallon, Chris  Lynch, Catherine  Mallon, Patrick  Lynch, Ciara  Malorrian, Philip  Lynch, Hannah  Mangan, Laura  Lynch, Jayne  Marley, Ann  Lynch, Katrina  Marley, Claire  Lynch, Martin  Marlow, Matthew  Lynch, Paul  Marquess, Cathy  Lynch, Seamus  Marshall, Chelsea  Lynoh, L.  Martin, Ciara  Lyons, Donal  Martin, Clare  MacKay, Terry  Martin, Phil  MacFlynn, Paul  Martin, Rebecca  MacGolla, Greigoir  Martin, Steven  MacIntyre, D  Martland, Kyle  MacIntyre, Orla  Massey, Ciaran  Mackel, Paddy  Matarire, Diarmuid  Mackel, Paddy  Matthews, Heather  Mackenzie, Gerald  Maveily, David  MacKenzie, Pam  May, Robert  Mackie, Liam  Mayne, Tom  Mazumder, Sakhawat  Mayor, Jay

92 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Mc Mahon, Ryan  McCleary, Maura  Mc Menamin, Charlie  McClelland, Jamie  McAdam, Rachel  McKenna, Mary  McAleeran, P T.  McKenna, Sean,  McAliskey, Brendan  McClelland, Natasha  McAnaller, Mary  McClelland, Robin  McAnenly, Jimmy  McCloud, Sheena  McAnenly, Susan  McClure, David  McAnenly, Zach  McColgan, Sarah  McAteer, Alice  McComb, John  McAteer, Dan  McCormick, Neil  McAteer, Marie  McComb, Laura  McAuley, Sarah  McCondille, Doreen  McBeigh, Anna  McConnell, C.  McBeth, Aoife  McConnell, Niamn  McBhranar, Cliodhne  McConville, Kieran  McBien, Declan  McCoppin, Kevin  McBride, Finton  McCormick, John  McBride, Maggie  McCourt, Fiona  McBride, Rebecca  McCrea, Berni  McBride, Ruari-Santiago  McCready, D.  McCabe Roz  McCready, Paula  McCabe, Andrew  McCrisken, Rachael  McCabe, Anton  McCrudden, Lyn  McCabe, Ciaran  McCullagh, Donna  McCabe, Megan  McCulloch, Aaron  McCabe, Rebekah  McCurry, Jennifer  McCafferty, Imelda  McCurry, Jennifer  McCafferty, Jim  McCusker, Deirdre  McCafferty, Mairead  McDermott, Brian  McCahe, Kevin  McDonagh, Dean  McCallary, Wendy  McDonald, Neil  McCallon, Nicola  McDonald, Susan  McCallum, Caoimhe  McDonnell, Aidan  McCann, Aidan  McDonnell, Claire  McCann, David  McDowell, Aidan  McCann, M.  McElhohn, Edel  McCardy, Mair  McElmery, Callie  McCarron, Shane  McEochagath, Sinclair  McCharlton, James  McEven, Susan  McChrystal, Daniel  McEvog, Niamh  McClaskey, Paul  Mcevoy, Barbara  McClaskey, Peter  McEwen, Jonny  McClean, Gareth  McFadden, Aime  McCleary, Jenny  McFadden, Bernie  McFall, Connor  McFadden, Ryan

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 McFarl Stephenie  McKenna, Maura  McFarland, Annmarie  McKenna, Sean  McGann, Amery  McKeown, Marieanne  McGarry, Rosin  McKeown, Michael  McGee, Matt  McKeown, Michael  McGee, Patrick  McKernan, David  McGettigan, Shauna  McKibbin, Martin  McGivon, Clare  McKieran, Patrick  McGourby, Liam  McKinney, Owen  McGovern, Adrian  McKinney, Ryan  McGowan, Patrick  McKinnon, Martin  McGranaghan, Guibhin  McKnight, Katy  McGrenaghan, Aoife  McLafferty, Conor  McGuchian, Nuala  McClatchy, Barrie  McGuchian, Rioghnach  McLaughlin, Conrad  McGuckian, Concobhar  McLaughlin, Deborah  McGuckian, Vincent  McLaughlin, Jean  McGuckin, Sarah  McLaughlin, John  McGuckion, Aoife  McLaughlin, Patrick  McGuiness, Gavin  McLeay, Stephen  McGuiness, Gav  McLersh, Ciara  McGuiness, Glenn  McLister, Paula  McGuiness, Sorcha  McLory, Stephanie  McGuiness, William  McMahon, Deirdre  McGuire, Aaron  McMahon, Niamh  McGurk, Amanda  McMillan, Antoinette  McHere, Ann  McMillan, Paul  Mcherrn, Catriona  McMullan, B.  McIvor, Conor  McMullan, Tony  McKane, Damien  McMullun, Yasmin  McKay, Deirbhile  McNally, Natalie  McKeagnan, Kathy  McNamara, Kevin  McKearney, Maureen  McNaughton, C.  McKeating, Michelle  McNee, Tayra  McKee, Anthony  McNeil, Colin  McKee, Felicity  McNeiss, Shauneen  McKee, Sally  McNern, Jennifer  McKeefsy, Pearce  McNicholl, Louise  McKeegan, John  Mcnulty, Andrea  McKeever, Darren  McPhillips, Marcus  McKeever, John  McPoland, Emma  McKeever, Lucia  McQuade, Natasha  McKenna, J.  McQuoid, Aine  Mckenna, Mary  McQuoid, Aisling  McKenna, Matre  McQuoid, Mairead  McQuoid, Meadhloh  McQuoid, Margaret

94 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  McQuoid, Nathan  Moore, Kelly  McQuoid, Oisin  Moore, Michael  McQuoid, Pearl  Morgan, Ceardha  McReynolds, Aine  Morgan, David  McReynolds, Justin  Morrisey, Mary  McUitty-O’Haran, Helen  Morrison, Hannah  McVeigh, Dympna  Morrison, Laura  McVeigh, Hannah  Muinzer, Thomas  McVey, John  Muldoon, Bernie  McWilliams, Patrick  Mulford, Amy  McWilliams, Patrick  Mulholland, Tania  Mearns, Tracy  Mullan, Barbara  Meelan, Angela  Mullan, David  Meheffy, Debbie  Mullan, Matthew  Melby, Eoin  Mullen, Bob  Michael Reynolds  Muller, Janet  Michael, John  Murchan, Roisin  Midgley, Hilary  Murphy, Victor  Mikelly, Matthew  Murphy, C.  Millar, Alison  Murphy, Courtney  Millar, Eileen  Murphy, Danielle  Millar, Mark  Murphy, Deborah  Millar, Melissa  Murphy, Francis  Millar, Michelle  Murphy, Joanne  Millar, Michelle  Murphy, Julie  Miller, Ashley  Murphy, Kathy  Mills, Emma  Murphy, P.  Mitchell, Ian  Murphy, Paul  Mitchell, Leanne  Murphy, Roisin  Mitchell, Ruth  Murphy, Sean  Mnjoo, Coumilah  Murphy, Tom  Molloy, Eddie  Murray, Colette  Monaghan, Keran  Murray, Ellen  Montgomery, Isabelle  Murray, L.  Montgomery, Mark  Murray, Michael  Mooney, Dominic  Murray, Nicola  Mooney, Nicola  Murray, Rosaleen  Mooney, Paddy  Nadu, Tamil  Mooney, Rachel  Naidu, Rajan  Moore, Aisling  Neil, R.  Moore, Cake  Neill, Jamie  Moore, Carole  Neill, Maurie  Moore, Clark  Nelis, Cathy  Moore, Karl  Newry, Martin Gray  Moore, Kathleen  Nic, Claire  Noel, Jamie  Noble, Kylie

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 Nolan, Ciaran  Patton, Ian  Nugnez, Nile  Paxton, Francesca  Nutt, Helen  Pentney, Zarie  O’Connor, Nicole  Perry, Alee  O Donnell, Catherine  Philpot, Alex  O'Donnell, Kevin  Philpott, Jen  O'Donnell, Martina  Pierson, Claire  O’Donnell, E.  Pile, Arron  O’Hagan, Lucy  Pobloth, Michael  O’Hanlon, Shauna  Polland, Anne  O’Hare, Brian  Pollock, Jackie  O’Hogan, Helen  Pollock, John  O’Hogan, I.  Popalt, Virginia  O’Hogan, Kate  Popoff, Alex  O’Hogan, Thomas  Porter, Anthony  O’Mahoney, James  Poturyahya, Tara  O’Marlain, Ciaran  Price, Christina  O’Marlon, Ruairi  Prior, Pierce  O’Neill, Brian  Purdie, Angie  O’Neill, Ernest  Q, Paige  O’Neill, Paul  Quaid, Paddy N.  O’Neill, Philip  Quarney, Geraldine  O’Reilly, A.  Quienny, Nuala  O’Reilly, Aoife  Quigg, Danny  O’Reilly, Brendon  Quinlivan, Una  Ogh, Ryan  Quinn, Catherine  O'Hanlon, Thomas  Quinn, Connor  O'Hare, Maire  Quinn, Edel  O'Neill, Nuala  Quinn, Emma  O'Neill, Sean  Quinn, Frances  O'Neill, Strabane Aaron  Quinn, Holly  O'Prey, Martin  Quinn, I.  O'Regan Sean  Quinn, Joseph  O'Reilly, Catherine  Quinn, Lorcan  O'Rourke, Dearbhla  Quinn, M.  Orr, Thomson  Quinn, Marie  Orwin, Keith  Quinn, Opla  Owen, Ciaran  Quinn, Orla  Palka, D.  Quinn, Paddy  Parke, Aaron  Quinn, Una  Parke, C.  Raddy, S.  Parke, Natalie  Rafferty, Helen  Parker, Megan  Rafferty, Oohron  Patience, Eileen  Raleigh, Aoife  Patterson, Emma  Ramsey, Anne  Reaney, Cara  Rankin, Fiona

96 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Reid, Jacquie  Sanlery, David  Reilly, Mikaela  Santini, Virginia  Reilly, Olga Baunbæk  Santo, James  Riby, Evelyn  Savage, Deirdre  Rice, Emma  Sayers, Naomi  Rice, Fiona  Scally, Mary  Rice, Glenn  Schito, Tony  Rice, Jonathan  Scobie, Graham  Richard, Clarke  Scott, Adam  Ridgley, Conor  Scott, Lynn  Ritchie, Shona  Scullion, Maria  Roarty, Hugh  Segly, Tina  Robb, N.  Selfridge, Samantha  Roberts, Laura  Sheac, Aneni  Robinson, Christina  Sheeran, Claire  Robinson, Gerry  Sheil, Derek  Robinson, Ryan  Sheldon, Rebecca  Rodgers, Cathal  Shields, Valerie  Rodgers, Paula  Shilliday, Mark  Rodgers, Timothy  Simmons, Sonya  Rodriguez, Harold  Sims, Andy  Roferty, Dan  Sinnamon, Alison  Rogers, Elizabeth  Sloan, Catherine  Rogers, Patrick  Sloan, Michael  Roomery, Amy  Smith, Amy  Rooney, Colleen  Smith, Daniel  Rooney, Jemma  Smith, Philip  Rooney, John  Smith, Simeon  Rooney, Lucia  Smith, Stephen  Rooney, Paul  Smyth, Amanda  Rosborough, Glenn  Smyth, Claire  Rosoul, Iram  Smyth, Edel  Ross, Stephanie  Snowney, Rebecca  Rowan, Niamh  Solaz, Maria  Rowe, Molly  Spedding, Gary  Rowland, Jasmine  Spence, Kerry  Ruck, Paul  Spence, Pauline  Ruddy, Jenny  Spratt, Adam Michael  Rush, Aaron  St John, Jilly  Ryan Morgan  Stafford, Lisa  Ryan, Connor  Starkey, Craig  Salmon, Dean  Steele, Kristian  Salt, Lesley-Ann  Stevenson, Kathyrn  Samson, Joanne  Stewart, Eoin  Sandford, Conor  Stewart, Jones  Stewart, Rebecca  Stewart, O.

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 Stewart, Sarah  Tunney, Aine  Strain, Kerry  Turner, Catherine  Stranney, Aoife  Turner, Colleen  Sullivan, Lynda  Turner, Colleen  Summerville, Cathy  Turner, Patrick  Swallow, Jonathan  Tweed, Derek  Sweeney, Noreen  Ungureaunu, Andra  Taylor, Jonathan  Vaughan, John  Taylor, Julie  Wade, Sammy  Taylor, Sophie  Waldron, Daniel  Teapot, Hannah  Walker, Jonathan  Teeling, Emy  Walker, Lynda and Ernest  Teggart, Anne  Walker, Tori  Teggart, Grainne  Wallace, Emma  Teggart, Jim  Wallace, Rachel  Teggart, Patrick  Wallace, Rachel  Telford, Matthew  Walls, Clare  Termini, Amy  War, Andrea  Thomas, Tina  Ward, Clare  Thompson, Brian  Ward, Sinead  Thompson, Frances  Ward, Trisha  Thompson, Geraldine  Warnock, Peter  Thompson, Glenn  Wass, Michael  Thompson, J.  Watson, Anne  Thompson, R.  Watts, Paul  Thompson, Thomas  Webb, Geraldine and Victor  Tilson, Paul  Webb, Rowan  Toccur, Nicola  Webb, Simon  Todd, Diane  Weston, Dale  Toller, Gerald  White, Bill  Tombill, Robert  White, Bobby  Toner, D.  White, Kieran  Topp, Heiko  White, Georgina  Towey, Michelle  White, Rod  Townsley, Lucinda  Whitehouse, Sharon  Tracey, Caoimhe  Whittaker, Sharon  Trainor, Taryn  Whittle, Paul  Trainor, Turlaugh  Whittley, Rosemary  Traynor, Seanin  Wilkson, Mark  Traynor, Thomas  Williams, Reanne  Treavere, N.  Williams, Richard  Trevor, Philip  Williamson, James  Trimble, Joanne  Wilson, Jan  Trimble, Marjorie  Wilson, Andrew  Tuck, Daniel  Wilson, Angela  Wilson, Danielle  Wilson, Ben

98 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  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.

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List of respondents to the Discussion Paper ‘Do we need a UK Bill of Rights?’ (August 2011)

List of respondent organisations and  British Humanist Association bodies  British Institute of Human Rights  British Irish Rights Watch Responses from groups of organisations:  British Refugee Council  Response from:  British Standards Institution o Age UK (Derby and Derbyshire);  Campaign Against Censorship o Amnesty International (Derby and Derbyshire  Celtic Knot local groups);  Children and Families Across Borders British Institute of Human Rights (national); o  Children in Scotland o Paragon Law;  Children's Commissioner for England o University of Derby (Law School and Multifaith Centre); and  Children's Commissioner for Wales o Derby and Derbyshire Race Equality  Church of England, Mission and Public Affairs Commission Council  Response from:  Citizens Advice o AIRE Centre, The;  Civil Court Users’ Association o Amnesty International;  Committee on the Administration of Justice o European Human Rights Advocacy Centre;  Constitution Society, The o Human Rights Watch;  Criminal Bar Association o INTERIGHTS;  Darlington Association on Disability o International Commission of Jurists;  Disability Charities Consortium o JUSTICE; and  District Bench (Magistrates’ Courts) o Open Society Justice Initiative  Diverse Cymru  Response from:  East Midlands Regional Equality and Diversity o Christian Concern; and Partnership o Christian Legal Centre  Eaves  Response from:  Elcena Jeffers Foundation o Family Planning Association; and  Equal Rights Trust o Brook  Equality and Diversity Forum  Equality and Human Rights Commission Responses from single organisations and  Equality Commission for Northern Ireland bodies:  Equality South West  A Dignified Revolution  Faculty of Advocates  Action on Hearing Loss  False Allegations Support Organisation (UK)  Active Independence  Family Law Society  AdEd Knowledge Company LLP  Family Rights Group  Age Cymru  Federation of Muslim Organisations  Age UK  Fortnight Educational Trust  Almshouse Residents Action Group, The  Forum for Stable Currencies  Amnesty International UK  Freedom from Torture  Black Disabled People's Association  Her Majesty’s Inspectorate of Prisons  Bristol Refugee Rights  Homeless Link  British Association of Social Workers  Human Rights Consortium, Northern Ireland

100 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Human Rights Consortium Scotland  NHS Wales Centre for Equality and Human  Human Rights Lawyers’ Association Rights  Imkaan  No Recourse to Public Funds Network  Immigration Law Practitioners’ Association  Northern Ireland Association for the Care and  Independent Academic Research Studies Resettlement of Offenders  Information Commissioner’s Office  Northern Ireland Council for Ethnic Minorities  Irish Congress of Trade Unions  Northern Ireland Human Rights Commission  Joint Council for the Welfare of Immigrants  Northern Ireland Public Service Alliance  Judicial Executive Board of England and Wales  Northern Refugee Centre  Just Fair  Northumbria University School of Law (student response)  JUST West Yorkshire  Paragon Law  JUSTICE  Parliamentary and Health Service Ombudsman  Kindness in Mind  Participation and the Practice of Rights Project  Law Centres Federation  Pirate Party UK  Law Society of Scotland  POhWER  Law Society of England and Wales, The  Prison Reform Trust  Lesbian and Gay Christian Movement  Publishers' Association, The  Lesbian and Gay Foundation, The  Quaker Peace and Social Witness, Crime,  Liberal Democrat Home Affairs, Justice and Community and Justice Group Equalities Parliamentary Policy Committee  Reformed Churches Caucus of the Lesbian  Liberty and Gay Christian Movement  London Metropolitan University Human Rights  René Cassin and Social Justice Research Institute  Rights of the Child UK  London School of Economics Human Rights Futures Project  Rights of Women  Macmillan Cancer Support  Royal Association for Disability Rights  Manchester NO2ID  Royal College of Nursing  Market Research Society  Royal College of Psychiatrists  McEvedys Solicitors and Attorneys  Royal National Institute of Blind People  Mencap  Saffron Neighbourhood Council  MENTER  Save the Children  Migrant Rights Centre, Bristol  Scottish Association for Mental Health  Migrants’ Rights Network  Scottish Government  Migration Watch  Scottish Human Rights Commission  Mind  Scottish Independent Advocacy Alliance  Minister of Justice, David Ford M.L.A., Northern  Scottish Parliament: Justice Committee Ireland Executive  Scottish Women's Aid  National Aids Trust  Senators of the College of Justice, Scotland  National Assembly for Wales: Constitutional &  Sheffield Law Centre Legislative Affairs Committee  Society of Conservative Lawyers  National Council of Women of Great Britain,  Society of Editors The  Solicitors’ International Human Rights Group  National Lesbian Gay Bisexual and  Spectrum Derbyshire Transgender Partnership  Stonewall  National Secular Society  Sussex Law School, Centre for  National Society for the Prevention of Cruelty to Responsibilities, Rights and the Law Children  Sussex Police  National Union of Students

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 Trades Union Congress  Welsh Centre for International Affairs  TravellerSpace  Welsh Refugee Council  UK Association of Women Judges  Welsh Women’s Aid  Ulster Human Rights Watch UNICEF UK  Wilberforce Society  UNISON Knowsley Branch  Wild Law UK  UNISON Northern Ireland  WomenCentre, Kirklees  United Kingdom Independence Party  Women's Resource Centre  United Nations High Commissioner for  World Wildlife Fund UK Refugees  Radlett, David and Radlett, Susan  University College London, Institute for Human  Roberts, Paul and Roberts, Jeanette Rights  Smales, Colin and Pat  University of Cambridge Centre for Public Law  Tucker, Andrew and Liz  University of Oxford, Pro Bono Publico  Watson, Richard and Watson, Anne  Unlock Democracy  Wood, Sarah and Wood, Janet  Wales Monitoring Group on the UN Convention  Zetter, Roger and Zetter, Elizabeth on the Rights of the Child

List of individual respondents Responses from more than one person: Responses from individuals:  Response from:  Acton, Karl o Dr Elizabeth Ashford  Adcock, Alison o Dr Andrea Baumeister  Agostini, Giulio o Dr Rowan Cruft o Professor Anthony Duff  Aitken, Ross o Dr Simon Hope; and  Aldridge, Chris o Dr Ben Saunders  Alexander, Roger  Response from:  Ali, Naheen o Adam Benmakhlouf  Allen, R.P. Catriona Ferguson o  Allen Q.C., Robin o Euan Fraser o Amy Hogarth  Allen, Tessa o Eilidh McAlister  Alston, Dr Winston C. H.  Ashley, Raymond and Ashley, Megan  Amesbury, Brendan  Clifton, Brian and Clifton, Tricia  Amos, Merris  Cole, Roger and Cole, Lucy  An, Philip  Grayson, John and Horton, Marion  Anderson, Edward  Hilken, Richard and Hilken, Sylvia  Anderson, Steven  Liles, David and Liles, Ellen  Anonymous A  ‘Mark and Adrian’  Anonymous B  Mitchell, Graham and Mitchell, Stella  Anonymous C  Morris,Gary and Wang Lucas  Anonymous D  Anonymous E  Anonymous F  Anonymous G  Anonymous H  Anonymous I  Anonymous J  Anonymous K

102 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Anonymous L  Bingham J.P., Graham  Anonymous M  Birch, Chris  Anonymous N  Birrell, Iain  Anonymous O  Bisatt, Philip  Anstey, Ben  Bishop, B  'AQ'  Bishop, Clive  Arnheim, Dr Michael  Black, Peter  Arno, Thomas  Blackburn, Professor Robert  Arnold, Peter  Blackman, Noelle  Ashmore, Stephen  Blackwell, Paul  Ashton, Jack  Blakeley, Eric  Aslam, Wasim  Blissett, Bill  Austin, David William  Blissett, Lesley  Baister, Master Stephen  Bloxham, Peter  Baker, Dr Dennis  Booth, Dr Paul H.W.  Baker, Stephen  Borges, Ashley  Banton, Michael  Boswell, James  Bargent, Daniel  Boswell, Professor Gwynneth  Barker, Greg  Bourne, Dr Michael Arnheim Charles  Barley, Dr Simon  Bowen, R.V.  Barnes, Graham  Boyd, Michael  Barnes, Vartouhie  Bradley, Peter  Barney, John M.  Braid, Dr N.W.  Barraclough, Liz  Brannigan, I.J.  Barrow, Paul  Briggs, Don  Basing, Steven  Bristow, G J.  Baxter, Trevor  Britten, David  Baynes, Tim  Brodie, Stanley Q.C.  Beard, Dave ● Broggio, Michael  Bearfield, Colin  Brooking Thomas, Fiona  Beirne, Maggie  Brooks, Jonathan  Bell, Gary  Brown, Danny  Bell, Michael  Brown, Dr Judith  Bell, Tomos  Brown, Tony  Bellamy, R.  Bruce, Peter  Bellamy, R. J.  Bruck, David  Belton, John  Bullock, Dr Gavin  Bender, David  Burchett, Elizabeth  Bennett, Helen  Burdett, Dave  Bennett, Judith  Burgess, Paul  Bennetts, Tyler  Burgess, Victoria  Bergin, Allen  Burns, James  Bernal, Paul  Burrows, Nigel C.  Bettes, D.C.  Burton, Mark  Bickford, Bob  Burton, Nick  Biggin, Ben  Butcher, Sarah  Butt, Ange

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 Butt, David  Coram, Iain  Cadier, Linda  Corne, Anna  Cadier, Paul  Corrigan, Ray  Cagan, Benj  Coston, James  Cahill, Anthony  Cottam, Gervase  Callaghan, Mary  Courtney, Christine  Callen, Sara  Courtney, E. R.  Calver, Bruce B.  Cozens, Jean  Cameron, Sheila  Craig, Robert  Campbell, Dr Nicholas  Cranmer, Frank  Canning, Simon  Crawford, Michael Hewson  Cannon, Graham  Crawshaw, Ralph  Canter, Professor David  Cresswell-Plant, John  Carins, Daniel  Crouch, Sheila  Carlile of Berriew Q.C., Lord  Crowe, Ian  Carne, Simon  Crowhurst, A D  Carter, Paul R.  Cule, John Michael  Carver, David  Cunliffe, Janet  Cavanagh, Dr N.  Curl, Geoffrey  Cave, Dominic  Curley, Larry  Cemlyn, Dr Sarah  Dalton, R.A.  Champneys, John  Darroch, His Honour Judge Alasdair  Chaney, Mike  Davis, Jack  Cherrington, Phillip  Davison, Andrea  Chick, Timothy J.  Tom  Chilton, James  Dean, Professor Hartley  Clark, Adrian  Dearle, David  Clark, Charles  Deer, Philip  Clarke, Brian  Dempster, Steven  Clarke, Michael W.  Denison, Peter  Clarke, Jackie  DeSandoli, Susan  Clarke, Paul  de Than, Claire  Coggins, Richard  Devaney, Michael  Colclough, Adam  Dewhurst, Christine  Coleman, Tony  Diamond, Paul  Coles, Pete  Dick, Charles  Collinson, Jonathan  Dickson, Professor Brice  Connelly, T  Dimmock, Dr Nathan  Connolly, Abigail  Donnelly, Dennis  Connor, Steve  Donovan, Virginia  Elaine  Douglas, Benedict  Cook, John W.  Downing, James  Cooke, Steve  Doyle, John  Cooke, Susan  Drew, Philippa  Cooper, Beth  Drummond, Gordon B.  Cooper, John  Drury, Mark

104 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Dudgeon, Jeffrey  Garrad, Gordon  Duff M.E.P., Andrew  Gasper, Julia  Dugdale, David  Gazur, Dr Ben  Dumper, Hildegard  George, Dr Rob  Dunsmore, David L.  Ghul, Rayya  Duval, Philip  Gilbert, Geoff  'DW'  Gilmore, Angela  Edison, Peter  Gogan, Mike  Edwards, R.  Goldspink, Rob  Edwards, Rupert  Goodliffe, John  Effer, Ernest  Goodyear, Adam  Eisenhandler, Claire  Gordon, Danka  Elliott, Bruce  Gordon, Jack  Elliott, Dr Patricia  Goundry, Robert  Ellman, Michael P. D.  Gower, Paul  Elwood, Anna  Grant, Alex  Emmott, Steve  Gréci, Lélia  Erswell, Dr Chris  Greenwood, Miss M.  Essajee, Huzaifa  Griffith, David  Etienne, Michael  Griffiths, David W.  Evans, David  Griffiths, Roger  Evans, Gary  Grudgings, Mrs Jean  Evans, Jessica  Grunewald, H. S.  Evans, Matthew  Gutierrez, Abbi  Evans, R.D.  Gwynn, Roger  Everitt, Anthony J.  Gwynne, Stephen  Faulkner, David  Hadden, Professor Tom  Ferguson, N.  Hall, Alex  Finnigan, Beth  Hall, John Nielsen  Fisher, Frankie  Hallard, Valerie  Fleming, Sharon  Halliday, Christopher  Fletcher, E.  Hamilton, C.F.  Fletcher, Peter  Hamilton, Stuart  Flinn, Graham  Hancock, Andrew  Florey, Richard  Hardwicke, Tom  Foley, Seamus  Hargreaves, Peter  Ford, Derek  Harrington, Regina  Ford, Marie  Harris M.P., Rebecca  Fordham Q.C., Michael  Harrison, Pauline  Fordham, Nigel  Harrison, Thomas  Fox, Michael  Harrison-Smith, Tony  Franks, Terry  Hart, Jean  Frost, Richard  Harty, Lowenna  Fryett, P.  Harvey, K.  Furey, Micheál  Harvey, Simon  Garcia, Elizabeth  Hawkins, Peter

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 Hayes, Kate  James, Jenita  Hayes, Luke  Jansen, Kai  Hazel  Jaspert, W.P.  Healy-Birt, Eleanor  Jefford, Tom  Heap, Graham  Jester, Natalie  Heatley, C Helliwell, S.  Johnson, Deryck  Hemming, John  Johnson, Dr Paul  Henley, Jackie  Johnson, Guy  Henry, Renee  Johnson, Jennie  Hickman, Tom  Jolly, Elizabeth  Higgins, David  Jones, Caroline  Hildreth, Margaret  Jones, Huw  Hill, Chloe  Jones, Kirsty  Hill, Jeffrey  Jones, Dr Madeline V.  Hill, Michael  Jones, Trevor  Hillard, Francis  Jull, Peter  Hirst, Peter  Jupp, Brian  Hockey, Dr Julia  Kagan, Professor Carolyn  Hodge, Canon Michael  Kaplan, Jessica  Hodgson, Eddie  Kaya, Julie  Hodson, Professor Mark  Kemmish, Ian  Holland, Ralph  Kemp, Claudia  Hollowell, Ann  Kendall, John  Holt, Keith  Kenny, Michelle  Hooper, J.  Keown, Guy  Hopkins, David  Kerr, Alan  Hoskins, Gareth  Kerr, Chris  Houston, Fleur  Kerrigan, Mike  Houston, Walter  Khan, Kazim  Howell, Dominic  Kilby, Chris  Howells, Peter  King, Jenny  Hudson, John R.  Kingsley-Smith, Brian  Hughes, Jacqueline  Kirk, Ian  Hughes, Laurence  Kirwan, Frank  Hughes M.P., Simon  Kissane, John  Hull, Professor John M.  Kitcat, Jeremy  Hunt, Anita  Klingsick, Martin  Hussain, Taniya  Koslowski-Smith, Kevin  Idelbi, Saara  Kosminsky, Peter  Immanuel, Harold  Lachal, Laurent  Irvine, Colin  Lally, J.  Jackson, Angela  Langley, Anna  Jackson, Dennis  Laribi, Youcef  Jackson, Harry  Larvor, Brendan  Jamall, Saba  Latham, Philip  James, Christopher L.  Lawrence, J.R

106 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Lawson-Cresswell, Tallulah  Matt  Le Sueur, Professor Andrew  McAliskey, Bernadette  Leadbetter, W.J.  McCaffrey, Joseph  Lees, Brian  McCart, Neil  Lees, Peter  McClean, John  Lennon, Jamie Andrew  McDermott, Angela  Leonis, Marilyn  McDermott, John Colin  Lewis, David  McDonagh, Michael  Lewis, David R  Mckay-Dirden, Michael  Lewis, Harry  McKeane, Dr John  Lewis, Jonathan M (Immigration Judge)  McMahon, Tom  Lewis, Mandie  McMeekin, Dan  Lipnicki, John  McNab, Elizabeth  Lloyd, Konnie  Mead, Chris  Lomax, Dr Peter  Mejka, Wladyslaw  Longworth, Jackie  Mery, David  Lonsdale, Anne  Meteyard, Barry  Lovell, Luke  Milan, Michael  Lucas, Clare  Miller, Chris  Luke, Aaron  Miller, Gavin  Lynch, William  Miller, J.  Maas, Robert  Miller, Robert  Macaulay, Alex  Milne, Piers  MacCaw, Timothy  Mindel, Angie  MacDonald, Dr Kate  Miselbach, Délise  Macehiter, Neil  Moffat, C.E.  MacKenzie, Allan  Mogg, John  MacKintosh, Scott  Monroe, Fiona  Macleod, John  Moore, Professor David R  Mactaggart M.P., Fiona  Moore, Professor Robert  Maher, Gillian  Morgan, Dr Austen  Maldred, Helena  Morgan, John  Malik, S.  Morrison, Rosina  Mallett, Robina  Morton, Andrew  Manfield, A. John  Morton, R.P.  March, Sally  Muers, Robin  Marchal, Faith  Mukherjee, Neil  Marchesi, David  Mullen, Timothy. I  Marsden, Barbara  Mulligan, Peter  Marthews, Gregory  Mulqueeney, Ronan  Martin, Kate  Murphy, Kay  Martin, Mary  Murray, Alasdair  Martin, Steve  Murray, John  Massey, Edward  Murray, Susan  Masterman, John  Nash, Daniel  Masterman, Roger  Nicholas, Joseph

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 Njoroge, Rose  Pilsbury, John  Noakes, Eileen  Plumb, David  Noble, Ed  Pogge von Strandmann, Hilary  Nock, Robert  Pogge von Strandmann, Victoria  Nohr Jorgenson, Anna Katrine  Pollock, David  Norris, Michael  Porter, Jessica  North, Professor J.A.  Portes, Bobbi  Noyes, Ray  Poulton, Valerie  O'Brien, Rita  Poynton, Jeremy  O'Connor, Patricia  Pragnell, Jim  O'Connor, Richard  Pressler, Dr Shirley J.  Olaiya, H.B.A.  Proudlock, J.  Oliver, J. R.  Pullen, Rhys  Olsson, John  Purnell, Chris  Orchard, Peter  Quinn, Lee  O'Reilly, Fiona  Raab MP, Dominic  Orr, Willie  Raha, Nat  O'Sullivan, Huw  Randall, Graham  Outhwaite, Reynold  Ratcliffe, William  Overstall, Peter  Rathbone, Jeanne  Owens, John  Read, Tim  Oxlade, Roger  Reece, Patrick  Padfield, Rick  Rees, Ann  Palmer, Anne  Rees, Meirion  Parker, Alan  Rees, Shan  Parker, George  Rees, Tom  Parkinson, Neil  Reid, Kiron  Partington, Keith N.  Rendell, Dr Edward  Partington, Lynne-Marie  Rennie, Anne Maria  Partridge, Derek W.  Riches, Brian  Partridge, John  Ridge, P  Paterson, Iain  Ries, Emmanuelle  Pathak, Jessica Rani  Riley, Gill  Pathi, Deepa  Rob M  Patterson, Michael  Roberts, D.  Patton, Sheila  Roberts, Mike  Pattrick, Hugh MBE  Roberts, Mr Gwyn  Payne, Andreas G.  Robertson, John  Payne, David  Robinson, Adrian  Payne, Robert  Robinson, Alan  Pearson, David  Robinson, Cllr. C.  Pender, George  Robinson, Stephanie  Penny, Gerald  Rogers, Linda  Pepper, Joe  Rolfe, Paul  Peppin, Stephen  Ronchi, Paolo  Phillipson, Professor Gavin  Rooms, Nigel

108 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes  Rooum, Donald  Smith, Al  Ross, Linda  Smith, Andrew  Row, Miles  Smith, Kevin  Rowlands, Neil  Smith, C.  Rowlands, Owen  Snow, William  Ruckman, Neil  Solomon, David  Ryder, Ken  Soto-Miranda, Diego F.  Ryder, S. C.  Sowerby, Brian  Ryland, Peter  Spencer, Dr Michael  Salsbury, Amy  Stagles, J.R.  Salway, Keith  Stainton, Richard  Sanders MP, Adrian  Staniforth, Jackie  Sanderson, Russell  Starling, Sam  Sandrey, Emma  Stedman, Simon  Sangster, Richard  Stenning, Keith  Sargeant, John  Sterland, Mike  Sargood, Adrian  Stevenson, John  Saunders, Stuart  Stevenson, Mark  Savage, Peter  Stirling, Damian  Saward, Jill  Stone, Kate  Saxon, Roger  Stone, Will  Schaefer, Barbara  Strasburger, Paul  Schnupp, Professor Jan  Stuttaford, Maria  Seddon, Vicky  Swallow, John  Sekindi, Fred  Tansley, Peter  Sells Q.C., Oliver  Taylor, Angela  Shaban, Zekiye  Taylor, David F.  Sharkey, Derick  Taylor, Jon  Sharman, Nick  Taylor, Peter Jason  Shaw, Christina  Tehrani, Professor Dabir H.  Shaw, L.  Telford, Rob  Shaw, Michael  Theaker, Linda  Sheeran, Ralph  Thomas, David  Shelley, Diana  Thomas, Hanna  Sheridan, Geoff  Thompson, Kenneth  Sherriff, D.J.B.  Thompson, Thomas  Shirley, Martin  Todd, Gabrielle  Short, David F.  Todd, Trisha  Shroff, Aspi  Tomlin, Alison  Shrubb, Kevin  Torrance, Carolyn  Simkins, Captain Mike  Towers, Philip  Simmons, Abigail  Townsley, Stephen  Skellett, Nicholas  Tredgold, Christopher  Skelton, Colin  Tredgold, Christopher  Slater, Mark A.  Tucker, Andrew  Smart, Verity  Tucker, Phil

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 Tupling, Maureen  White, J.M.  Turner, Dave  White, Simon  Turner, Grahame  Whitenstall, Joseph  Turner, Rollo  Whittaker, David  Turnsek, Helmut  Wilkes, Jon  Turpin, Colin  Wilkins, Joan  Van Someren, Laurie  Wilkinson, Sue  Veja, Retesh  Willenbrock, Charles  Vero, Mark  Williams, Alan  Vineall Q.C., Nicholas  Williams, Amy  Vinton, Richard  Williams, David  Walinets, Stanley  Williams, Gareth  Walker, Antony  Williams, Paul  Walker, Kelvin  Winslow, Lucius  Wall, Alec  Wintemute, Professor Robert  Walsh, Thomas  Withers, Clive  Walton, Dr Ronald G.  Wood, Stella  Walton, Keith  Woodhouse, George  Ward, John  Woodman, Connor  Warren, Paul  Woodroffe, Glen  Warren, Peter  Woolley, Jasmine  Waters, Lee  Worrall, Stephen  Watkins, Stephen  Wright, Andrew  Watkins, Elizabeth  Wright, J.  Watkins, Mike  Wrigley, Peter  Weatherald, Cathy  Wyatt, Richard  Webber, Thomas  Yates, Pol  Wheeler, Stephen  Yawer, Emad  Wheeler, William  Yeo, Rebecca  Whelan, John  Young, Brian  Whitaker of Beeston, Baroness

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Consultation Summary

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112 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes

Consultation Summary

Any enquiries regarding this publication and copyright should be sent to us at [email protected].

This publication is available for download on the Commission’s website at www.justice.gov.uk/about/cbr/index.htm.

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 system...... 15 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 Additional rights ...... 30 Balancing certain rights ...... 41 The duty on public authorities...... 44 The role of responsibilities in any UK Bill of Rights...... 48 The duty to take Strasbourg case law “into account”...... 54 The balance between courts and Parliament...... 58 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 Rights...... 79 Reform of the European Court of Human Rights ...... 82

3 Introduction

In August 2011 the Commission published a Discussion Paper entitled ‘Do we need a UK Bill of Rights?’ 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 1,875 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 Commission’s 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?

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.

Equivocal Advocate 27% 28%

Oppose 45%

5 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 – approximately 700 respondents (88%) – were in favour of retaining the Human Rights Act. In addition, the Commission received around 140 pro forma responses to our first consultation and 1,875 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 Repeal 4% 12%

Retain Retain 88% 96% Responses excluding postcards and pro- Responses including postcards and pro- forma responses 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 and/or 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 Commission’s 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; and/or

b. the addition of any qualifying/limiting/balancing clauses; and/or

c. the addition of certain responsibilities; and/or

d. a modification of the courts’ interpretive duties; and/or

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 and/or adopt modified language; and/or

b. restate Convention rights and add new rights; and/or

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

d. add new provisions on enforcement and related matters; and/or

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 Rights.1 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 respondent’s 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 – some 350 in total – was that the Human Rights Act was already a legally enforceable Bill of Rights and that it was working well.2 As JUSTICE said to us in their response to our first consultation paper:

“the 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 ‘bill of rights’ for the UK.”3

11. Another respondent wrote:

“we 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 terms.”4

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 and/or to reduce the powers of the European Court of Human Rights. As the British Institute of Human Rights wrote:

“we 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 Act… We note that neither the Coalition Agreement for Government nor the Commission’s Terms of Reference even mention the HRA… 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 HRA…

2This number does not encompass all those who supported the retention of the Human Rights Act, 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 …On 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 enforceable… This will be disastrous for all people, especially the most vulnerable members of our society.”5

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

“we 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 ‘rights’ of the European Human Rights legislation.”6

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:

“it is anticipated that Britain’s financial difficulties will last for many years and therefore we need to ‘count the cost’ 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 legislation?”7

“As practising lawyers, the prospect of two human rights acts horrifies us. We cannot see how that could possibly be in the public interest.”8

15. Around 50 respondents opposed a UK Bill of Rights on the basis that such a Bill would weaken the UK’s 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 “there 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 countries.”9

16. Some also pointed out that rights are universal and should not be stated in a ‘British’ way:

“it 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 opinion.”10

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:

“the 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 public.”11

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

“given 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 desirable.”12

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 – depending on its contents – had the potential to affect negatively any progress made to date on a Northern Ireland Bill of Rights and/or would lead to a diminution in rights protection contrary to the Belfast/Good Friday Agreement. For example, the Human Rights Consortium said:

“firstly, we would be totally opposed to a UK [Bill of Rights] if its discussion/passage 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 Belfast/Good 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-conflict.”13

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 Act.14

“The 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 it.”15

“The Bill of Rights represents an important opportunity to establish children’s 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 children’s 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 it.”16

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.

“The Royal College of Psychiatrists (hereafter ‘the College’) 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 to a 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 Paper Response, p. 2.

11 Rights, ensures that those rights continue to be enshrined in UK law, and protects and extends individual liberties.”17

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 – regardless of whether that perception was informed or justified – 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:

“there 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 system.”18

25. Other respondents to our first consultation stated:

“I 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 court.”19

“[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 deserved.”20

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

“I 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 Paper Response, 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 countries… 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 elsewhere.”21

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:

“A 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 Charter… 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 read.” 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 – 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:

“we 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 ‘social compact’ that must be addressed… ”23

29. ‘Unlock Democracy’, 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:

“we 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 nation’s traditions of freedom and liberty.”24

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 responsibilities.25 As one respondent to our Discussion Paper stated:

“I strongly support the provision of a responsibility section within the Bill of Rights as a quid pro quo. E.g. you have these rights but in doing so you accept them with equal responsibility. Of course, they should be broad and not prescriptive – 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 responsibility.”26

24Discussion Paper Response, p. 4. 25Other respondents were in favour of linking rights to responsibilities but did not expressly advocate a Bill of Rights because it would make such linkage possible. We did not include these respondents in our analysis; but we analyse respondents’ general positions on linking rights to responsibilities later in this paper. 26Ben Biggin, Discussion Paper Response, 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 – either to a UK Bill of Rights or to the status quo – 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 ‘take into account’ 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:

“the 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 away.”27

33. The UK Publishers’ Association stated that:

“we believe very strongly that, if anything, existing Human Rights need clarifying and – if necessary – strengthening, rather than replacing with new legislation or codification. It is certainly the case that publishers would welcome any strengthening of Article 10.1 on Freedom of Expression (subject as it is, at present, to the conditions and qualifications in 10.2).”28

34. Approximately one quarter proposed that the UK should work with the Council of Europe to reform the Strasbourg Court and/or 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 The Human Rights Act 1998: retain or repeal?

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 – approximately 700 respondents – wanted to retain the Human Rights Act. In addition, the Commission received around 140 pro-forma responses to our first consultation and 1,875 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 Commission’s second consultation. These stated that “I 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 don’t let your actions take away our rights and freedoms”;

● 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 “ensure that the Human Rights Act remains intact”;

● 1,244 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 “the 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 weakened”;

● at least 40 respondents wrote to the Commission in terms urged by Liberty in response to the first consultation. These individuals wrote: “we have a Bill of Rights and it’s called the Human Rights Act”; 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 “build on the existing Human Rights Act and guarantee the rights of everyone living in the United Kingdom.”

17 Incorporation of the European Convention on Human Rights

37. One of the principal effects of the Human Rights Act was that it ‘incorporated’ 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 1,875 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 “puts into practical effect the European Convention.” 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 “about who we are and our values” and “a vital safety net that protects us all, especially at times of vulnerability” but did not explicitly address the issue of incorporation.

40. Around 1,450 respondents to both consultations addressed this issue, including 1,244 individuals who sent the Commission postcard responses.

41. Some 1,415 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 ‘de-incorporation’ 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:

“if… Convention rights could only be asserted in Strasbourg… the only claimants who would be able to assert those rights would be institutional litigants, the very rich or those who were legally aided.”29

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:

“if the link with the European Convention on Human Rights is entirely broken in any new UK Bill of Rights… 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 court’s backlog and reducing the influence of UK judges on ECHR jurisprudence.”30

44. One respondent said:

“before the Human Rights Act was passed… 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 doesn’t want British cases decided in Strasbourg. So keep human rights at home!”31

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 Britain’s 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:

“just 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 – and not be bound by – 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 principles… The HRA has… fundamentally strengthened the ‘margin of appreciation’ afforded to the UK by the Court… HRA incorporation mechanisms have led to the protection, not the denigration of parliamentary decision making. It is difficult to see how any new ‘British Bill of Rights’ could provide any advances on the HRA in this respect.”32

46. Some respondents also expressed the view that de-incorporation would represent a violation of the UK’s commitment under the Belfast/Good 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:

“we 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 Belfast/Good Friday Agreement, [which states that] ‘the 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 inconsistency.’ To lose this domestic level of protection of ECHR rights would therefore represent a serious violation of the international treaty that is the Belfast/Good Friday Agreement.”33

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 and/or Parliament. As three respondents to our second consultation stated:

“the 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 Convention.”34

“I believe that the United Kingdom should… 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 rights… 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 Paper Response, pp. 1‐2.

21 Eweida v British Airways… Have the strength of your convictions and common sense and abandon this failed project.”35

“The 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 Commission’s exercise to produce a British Bill of Rights… a decision has to be made between the ECHR, or a British Bill of Rights.”36

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:

“I would respectfully draw the Commission’s 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 initio.” 37

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

“the Scottish Human Rights Commission understands that the Commission’s terms of reference explicitly exclude this type of question from the Commission’s remit.”38

“The 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 ‘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.”39

50. A few respondents also objected to the question on the basis that they did not view the Convention as ‘incorporated’ into domestic law at present. They pointed out that the Human Rights Act gave ‘further effect’ to Convention

35Paul Diamond, Discussion Paper Response. 36Andrew Smith, Discussion Paper Response, 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 – 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.

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

12%

35% Replace Sit alongside Equivocal

53%

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 “if the aim is to strengthen the protection of rights, there is no need to scrap or weaken the Human Rights Act… 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 HRA.”40

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:

“if 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 Rights.”41

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:

“as 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 Act.”42

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 and/or 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:

“there are real difficulties in drafting any new terms as the interpretation is not clear…the 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 wouldn’t have any real clarity.”43

60. Sir Geoffrey Bindman QC wrote:

“there is no point in duplicating or replacing the Human Rights Act…It would be a recipe for chaos.”44

61. The National LGB&T Partnership cited the ‘excessive and unnecessary litigation’ that could result:

“it 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 wasteful.”45

62. A small number of respondents argued that there was in particular a risk of divergence between the Strasbourg court’s 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:

“using 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 court.”46

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:

“we 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 HRA”47

43Consultation Paper Response, pp. 2‐3. 44Consultation Paper Response, p.1. 45Consultation Paper Response, p. 3. 46Consultation Paper Response, p. 3. 47Consultation Paper Response, p. 4.

27 Expressing rights differently

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 UK’s history, its culture and its values in the modern era:

“A 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 Charter.”48

“The 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 declarations…The 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 heritage.”49

“Some 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 case.”50

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

“the 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 implemented.”51

“Some of the language in the HRA and ECHR could be simplified and updated.”52

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 “Clarity and transparency are essential, so perhaps the language should be different. Too much detail is hidden beneath a cloak of legal jargon.”53

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 UK’s 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 Commission’s 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:

“there was no real evidence of any significant call for the creation of a UK Bill of Rights in order to extend rights – 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 recognised.”54

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:

“in 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).”55

72. The charity Menter made similar comments in relation to children’s rights:

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

31 “I would be interested in a UK Bill of Rights that included additional rights or further clarification on present rights… I would be particularly interested in additional rights for children (this is a huge lack).”56

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:

“the 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 obligations.”57

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:

“for example, the rights of children and the right to equality are protected by specific statutes. The Children’s 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 re statement of the statutory protection already in place.”58

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 “the practical difficulty of producing such changes will lead to a procedural quagmire or an attempt to drive legislation through in a most illiberal manner.”59

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:

“the 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 unnecessary.”60

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

“the disadvantage – a very serious one – is that the development of such additional rights could be used as another political smokescreen to undermine the existing protections already existing in the HRA.”61

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

“given the current hostility to judicial determination of rights issues in some quarters… it is important to highlight that more rights would mean increased judicial involvement.”62

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

“the 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 compensation?”63

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 Which rights did respondents advocate or oppose?

120

40 Respondents Respondents

0 I T Cr En M So n Ch Ri Ad Vi O t r i t e ia i g c n h c m i v m t i r l ld h i i o e o n i r ms b n r tt o in r r - a e it e y a o n i y R t n s ' c io J l m t / i a ' E r Ri V g o n u s e a n r n q u h a y Ri n t g ts o d u i ln l t v h m I g a a e t e n Ci l l s i h i r c s v t ty Ri J a t s u R r i b u l g s l i J h t e g m u i t c G h e s s e t t r s n i o t c s e u p s Number advocating right/type of rights Number opposing right/type of rights Number equivocal on right/type 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 UK’s 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 ‘directive principles’ or required the ‘progressive realisation’ 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 ‘progressive realisation’ 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 Landlords’ Association argued that:

“human 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 be.”64

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:

“Article 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 ‘any right set forth by law’.”65

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 free standing 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 9.8.

35 Children’s Rights 90. Approximately 50 respondents advocated the inclusion of children’s 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 UK’s obligations under international instruments containing children’s 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:

“it 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 ‘the general climate of intolerance and negative public attitudes towards children, especially adolescents’ – 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 country.”66

92. Some respondents, including the Children’s Commissioner for Wales, submitted that children were particularly vulnerable and argued that more specific rights relating to children were needed in the UK:

“as indicated in the Declaration of the Rights of the Child: ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’.”67

93. Those who opposed the inclusion of children’s rights in any UK Bill of Rights did so in the main because they thought that children’s 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 law/statutory 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:

“we 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, litigation.”68

Minority/Vulnerable Group Rights (not including Children’s 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:

“disabled 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 lives.”69

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.

A Right to Trial by Jury 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:

“the 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 theory or political discourse in Scotland as it has in England.”70

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 (e.g. “in serious cases” or “in complex fraud cases”).

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:

“the existing legislation takes insufficient account of the rights of others, e.g. in considering the rights of a criminal no account is paid to the rights of his victims.”71

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:

“we 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 criminal’s 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 Paper Response, 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 protections.”72

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.

A Right to Administrative Justice 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:

“an important means of enhancing transparency and accountability and therefore of increasing public confidence in standards of public administration.”73

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 UK’s 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.

39 114. 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

15 Respondents Advocating Advocating Respondents 0 U U In U U U U E E N N te N N N N CH U Un Co rna Co Co Co Pri R Ch iv nv tio nv nv nv nc P ar ers en n en en en ip ro te a ti al ti ti ti les toc r o l D on Co on on on fo ols f F ec on ve on on on r O n un lara th na th th th ld ot da ti e nt e e e er rat me on Eli on Eli Rig Rig P ifie n of mi E mi h h ers d tal H na co na ts ts o by R um tio no tio of of ns th igh a n m n the Pe e ts n R of ic, of C rs U ig Al S Dis h on K ht l F oc c ild s s orm ial rim wit s an in h D o d ati is f R Cu on ab ac ltu A ilit ial ra ga ie D l R ins s isc ig t W rim hts o in m at en ion

International Instrument

115. As noted above, approximately 100 respondents argued in favour of incorporation of the UK’s 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 UK’s international obligations incorporated through other means:

“ITMB 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 BOR.”74

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 Balancing certain rights

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 individual’s 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 person’s 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:

“[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 arguments.”75

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

“we 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 parliament.”76

126. The Irish Traveller Movement in Britain said:

“ITMB believe that the Human Rights Act (HRA) already strikes an appropriate balance between qualified and competing rights, based on the principle of proportionality.”77

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:

“Liberty 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 state.”78

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 religion,79 as well as the balance between Article 8 and Article 10.80 For example:

“a Bill should give more guidance to the courts on the question of qualified and competing Convention rights than there is currently in S.12 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 law.”81

“Unfortunately 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 welcomed.”82

129. The Society of Editors said that:

“one 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 8’s 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 defences…The Society would further endorse specific protection for freedom of the media in addition to the wider protection for Article 10’s freedom of expression.”83

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 ‘inhuman and degrading treatment’ for the purposes of Article 3.84

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 People’s Commissioner for Wales, Consultation Paper Response, para. 8.1.

43 The duty on public authorities

131. Under section 6 of the Human Rights Act 1998 it is unlawful for a ‘public authority’ to act in a way which is incompatible with a Convention right. The term ‘public authority’ includes Ministers, Government departments, local authorities, statutory bodies and courts as well as some private bodies which exercise ‘public functions’ 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 services.86 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 ‘public authority’, 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 ‘public authority’? 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 ‘public authority’

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 v Birmingham City Council and Others [2007] UKHL 27. 86 Health and Social Care Act 2008, s. 145.

44 “[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 protection.”87

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 ‘public authority’ 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 LGB&T Partnership believed that:

“the 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 funds.”88

Views opposed to amending the definition of ‘public authority’

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:

“we 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 well.”89

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. 10.1. 88Consultation Paper Response, p. 5. 89Consultation Paper Response, p. 7.

45 “it would be difficult to devise a watertight statutory definition of a ‘public authority’. 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 practice.”90

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:

“the 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 people’s basic needs, especially the most vulnerable members of our society.”91

142. Action on Hearing Loss wrote to us in similar terms:

“the ‘section 6 duty’ is vital to ensuring the obligations and liberties in the ECHR become part of people’s 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 duty.”92

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:

“In 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 people’s 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 law.”93

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:

“the obligation contained in Section 6…has 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 rights.”94

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:

“the 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 ‘HRA compliant’ – a goal which is particularly elusive since it is often difficult to predict how the courts will interpret the Act.”95

93 Nicholas Ostrowski, 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. 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 – or to any greater role than at present – 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 i.e. 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:

“from 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 account.”96

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

“the 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 statement.”97

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:

“enriches and promotes a sense of civic responsibility by defining a set of value-laden expectations, or simply by asserting that, in order to claim one’s own human rights, a person must respect those of others.”98

153. Canon Michael Hodge wrote that:

“as a believing and practising Christian, I am concerned about ‘Rights without Responsibilities’ at least where a normal adult is concerned. The sight of people demanding ‘Their Rights’, without any apparent acknowledgement that those carry with them ‘Their Responsibilities’ worries me, to put it at its least. And yet I have real doubts as to how Responsibilities can have a place in law….What 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 Practice.”99

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:

“politicians 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 norms… we strongly advocate the use of education and awareness-raising to address public misunderstanding and misperceptions of human rights… We are deeply concerned that the way in which ‘responsibilities’ are being framed in the current debates has the real potential to further embed misunderstanding about the relationship between human rights and responsibilities.”100

157. Many opponents argued that making rights contingent on responsibilities would breach the ‘universality principle’ of human rights and would be an affront to the fundamental nature of such rights. For example, the Scottish Human Rights Commission said:

“the 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 responsibilities.”101

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

“there must be recognition that ‘rights’ are delivered by balancing obligations, and in some cases need to be ‘earned’. There must be an end to a ‘take, take’ mentality.”102

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:

“Congress has always believed that the promotion of rights encourages a sense of responsibility to defend the rights of all, without exception.”103

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

“the 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 name.”104

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:

“the 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 state.”105

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:

“there is no need to include responsibilities since responsibilities are implicit within human rights and embedded within domestic and international human rights frameworks.”106

164. However, a small number of respondents, such as Dr Austen Morgan, believed conversely either that these implicit responsibilities needed to be

103Consultation Paper Response, p. 5. 104Discussion Paper Response, p. 7. 105Discussion Paper Response, p. 9. 106Consultation Paper Response, p. 10.

51 made explicit, or that any UK Bill of Rights should include reference to the concept of responsibility in a different way:

“human rights have always implied responsibilities. The principal, or only, responsibility should be support for the rule of law, and this could be made express.”107

(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:

“it 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 individuals.”108

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:

“only including declaratory responsibilities would be counter productive, as it would appear to emphasise that rights are privileged over responsibilities, whereas in fact the two are co existent.”109

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 state’s 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:

“responsibilities could sound in human rights damages, as they did in the Gibraltar IRA case: McCann v UK (1995) 21 EHRR 97.”110

168. Alternative suggestions for means of incorporating responsibilities in any UK Bill of Rights included: “securing 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 responsibilities” as a qualification to rights such as articles 8-11;111 creating a code of good practice;112 and making rights more horizontally effective in order to make responsibilities more apparent.113

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 “into account”

169. Section 2 of the Human Rights Act 1998 requires our courts to ‘take into account’ 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 UK’s 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 and/or 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 ‘into account’ 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:

“there 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 approach… The judges themselves appear to be moving away from this unduly restrictive approach… 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 jurisprudence.”115

176. Similarly, the Faculty of Advocates in Scotland said:

“We believe the approach the Supreme Court currently adopts in this respect is correct.”116

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 UK’s compliance with its Convention obligations. For example:

“the 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 ECHR”;117

“any 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 7”;118

“[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. 118Children’s Commissioner for England, Discussion Paper Response, p. 2.

55 that the UK effectively meets its obligations under Article 13 of the Convention.”119

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 “any modification could cause unnecessary and costly legal confusion.”120

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 “statutory clarification” of the meaning that had “always (been) intended”, namely that judges would be under a duty to “bear in mind” Strasbourg jurisprudence, and “no more.”121 Other terms used to describe such proposed interpretative guidance included “Practice Direction”122 and “Explanatory Note”,123 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 and/or 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 countries,124 or international human rights bodies and courts,125 or other international human rights obligations.126 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 King’s College London suggested that:

“the HRA should be amended so as to overrule the ‘no more’ part of the late Lord Bingham's ‘Ullah principle’, and expressly authorise a more generous British interpretation of the Convention rights… eg:

‘s. 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 Paper Response, p. 4. 121 Consultation Paper Response, p. 5. 122University of Cambridge Centre for Public Law, Discussion Paper Response, 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 Law, Consultation 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 Europe.’”127

182. Wild Law UK stated that:

“s. 2 of the Human Rights Act should be amended to dictate that the jurisprudence of the ECtHR is binding on the UK domestic courts.” 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:

“We 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 jurisprudence.”129

127Discussion Paper Response. 128Wild Law UK, Discussion Paper Response, 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 ‘declaration of incompatibility’. 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 unenforceable.130 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 Court’s 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 UK’s 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 must declare it to be 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:

“in retrospect, we have worked out a very ‘British’ solution, pragmatically balancing our modern international and judicial commitments with the historical doctrine of parliamentary sovereignty.”131

191. The Law Society of England and Wales also stated:

“declarations of Incompatibility are the best way to adjudicate human rights while still preserving the tradition of parliamentary sovereignty.”132

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:

“a 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 Kingdom.”133

193. McEvedys Solicitors and Attorneys told us:

“we 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 Judiciary.”134

194. The Solicitors International Human Rights Group said:

“the 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 party.”135

195. Finally, one individual told us:

“I 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 unenforceable.”136

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:

“the 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 legitimacy… 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 UK.”137

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 ‘margin of appreciation’ to be afforded by the Strasbourg Court. For instance, the Society of Conservative Lawyers told us:

“there 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 Strasbourg.”138

199. A small number of respondents suggested the introduction of a mechanism that would allow the UK to override Strasbourg judgments. Robert Broadhurst stated:

“the 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 rights.”139

200. Thomas Webber stated:

“the 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 1998.”140

201. On the other hand, a small number of respondents expressed objections to the idea of ‘democratic override’ proposed in the Chair’s 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 “we wish to register our strong objection to any proposal that would permit a ‘democratic override’ 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 Rights… Furthermore, such a proposal finds no support in the text of the European Convention itself; Article 46 makes clear that Contracting Parties ‘undertake to abide by the final judgment of the Court in any case to which they are parties.’

Moreover, ‘democratic override’ 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 guaranteed.”141

203. Michael Norris stated:

“I 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 all.”142

141Discussion Paper Response, p. 4. 142Discussion Paper Response, p. 2.

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 ‘entrenched’ 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:

“the 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 parliaments.”143

208. The Law Society of Scotland said:

“The [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 e.g. 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 courts.”144

209. Finally, one individual told us:

“I 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 it.”145

210. On the other hand, the Society of Conservative Lawyers argued that:

“we do not believe that any new Act should be “entrenched” (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 time.”146

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 ‘devolution settlements’, 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 and/or 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 1,200 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 Commission’s 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 – including those in Northern Ireland, Scotland and Wales – 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:

“if 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 country.”147

218. Others expressed the view – in differing levels of detail – 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:

“we 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 for…As an example…the Children’s Convention is the cornerstone of the policy framework in Wales and not in England…We 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 people’s fundamental rights between Westminster and Cardiff and a Welsh Bill of Rights may be one way to address this.”148

219. Respondents often also commented on whether, and the extent to which, a UK Bill of Rights might be desirable and/or possible in the light of the devolution settlements and the particular circumstances – incuding the current political landscapes – 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 Scotland’s 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 and/or viability for a separate Bill of Rights for Northern Ireland and the requirements of the Belfast/Good Friday Agreement. For example the Northern Ireland Human Rights Consortium said to us:

“provision 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 Ireland’s 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 Rights.”149

222. In addition the Commission received 1,244 postcard responses from individuals as part of a campaign organised by the Northern Ireland Human Rights Consortium, which stated that “nothing done at the UK level should be allowed to cut across [the Northern Ireland Bill of Rights] initiative or reduce current protections.”

223. Views expressed to us in respect of Scotland were predominantly viewed through the lens of the ongoing debate on Scotland’s 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:

“given 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 desirable.”150

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 Assembly’s legislative competence in the light of the recent extension of devolved competence to Wales. In response to our Consultation Paper, the Commission’s Advisory Panel members from Wales, Aled Edwards and Clive Lewis QC, said:

“Legislation 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 Assembly’s 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).”151

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:

“the 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 ‘Convention rights’, 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 statutes.”152

“A strong argument can be made that ‘human rights’ have been devolved to the devolved jurisdictions and that any amendments to

150Consultation Paper Response, p. 9. 151Consultation Paper Response, p. 4. 152Consultation Paper Response, p. 15.

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 legislatures.”153

“The UK’s 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 Act.”154

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 and/or 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 and/or the UK as a whole as a factor, to some degree, in deciding whether to maintain the current system and/or 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:

“continues to be concerned that the current political climate presents singularly unfavourable conditions to discuss a UK Bill of Rights.”155

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:

“the planned referendum on Scotland’s 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 unhelpful….For these reasons we believe that the complex political and constitutional factors at play in the UK mean current structures should be maintained.”156

230. Referring to the responses we received to our first consultation, the Human Rights Consortium in Northern Ireland said:

“circumstances 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 process….The Consortium believes that the protections promised in the [Belfast/Good Friday] Agreement are essential to maintaining and extending the peace process in Northern Ireland.”

231. Professor Fiona de Londras of Durham Law School told us that:

“in 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 ‘UK Bill of Rights’ into the equation would bring about further uncertainty, fragmentation and complexity.”157

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:

“although 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

156Consultation Paper Response, p. 34. 157Consultation Paper Response, p. 6.

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 it.”158

233. A similar view was highlighted by Dr Austen Morgan who argued that:

“the 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 – like the European Communities Act 1972 – 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 – an unremarkable political proposition.”159

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:

“these 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 administrations.”160

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 – in varying levels of detail – to the need for the particular circumstances pertaining to those countries to feature in the current debate.

236. Roseanna Cunningham MSP, the Scottish Government’s Minister for Community Safety and Legal Affairs said:

“on the extent to which the Commission would seek to factor the current debate around Scotland’s 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 Scotland’s 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 conclusive.”161

237. The response from the Scottish Parliament’s Justice Committee pointed to the current political backdrop:

“it 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 UK’s legal systems, rather than because of a clear consensus across civic society that now is the right time to discuss a UK Bill of Rights”162

238. The Welsh Government referred to:

“a 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 2012.”163

239. More generally the Welsh Government said that it “finds it difficult to see the benefits in a UK Bill of Rights.”164

240. The Constitutional and Legislative Affairs Committee of the National Assembly for Wales told us that:

“…the 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 constitution…There 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 present.”165

241. The Minister of Justice in Northern Ireland stated:

“I 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 needs.” 166

242. The Commission also received a response from Sinn Féin which stated that:

“the 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 acceptable.”167

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:

“The 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 forthcoming.”168

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 “In 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 statute…Reflecting [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 accordingly.”169

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:

“Repeal of the HRA is likely to undermine [the Scotland Act 1998, the Government of Wales Act 1998, the Belfast/Good 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 Glasgow?”170

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 and/or 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:

“80. …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.”

“81. …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.”

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 Belfast/Good 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 “a standardised solution to distinctly different circumstances in the various devolved regions/countries” and expressed doubt that the models “would be politically and legally achievable”.171

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:

“if 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 intention.”172

171Consultation Paper Response, p. 5. 172Consultation Paper Response, p. 2.

250. The public sector trade union UNISON wrote:

“UNISON considers that as Bills of Rights generally articulate fundamental international principles and introducing one would give positive and practical effect to the UK’s international obligations to uphold these rights (e.g. 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 them.”173

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 “fundamentally unworkable”, while noting that the Scottish Government would nonetheless legislate within its competence to fill any gaps it identified in fundamental rights protection:

“in 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 responsibilities.”174

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 People’s Commissioner for Wales advocated the model set out at paragraph 80, but also provided a caution:

“The 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 Paper Response, p. 5.

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 context.”175

253. The Equality and Human Rights Commission also pointed out a potential problem with the model proposed at paragraph 80:

“We 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 authorities.”176

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.

175Consultation Paper Response, p. 9. 176Consultation Paper Response, p. 34.

77 255. One respondent, Sinn Féin, did however express a view on how a UK instrument might be otherwise formulated to take into account the position in Northern Ireland:

“We 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 laws….These are essential not least because the northern Bill of Rights is a treaty obligation predating the UK Bill of Rights and Responsibilities initiative.”177

256. Many respondents simply reiterated the need to consider carefully the current constitutional and political circumstances in Northern Ireland, Scotland, Wales and/or the UK as a whole before recommending any change to the status quo.

177Sinn Féin, 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 Commission’s 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 Commission’s terms of reference which require the Commission to “consider ways to promote a better understanding of the true scope of these obligations (those under the European Convention on Human Rights) and liberties.” For example, the National Aids Trust said:

“There 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 ‘consider ways to promote a better understanding of the true scope of these obligations and liberties’ as set out in its Terms of Reference.”178

259. Other respondents who highlighted the Commission’s 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:

“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.”179

264. Others who shared this view stated:

“the 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 Act.”180

“In 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 laws.”181

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:

“both 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 rights.”182

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 Paper Response, p. 2. 181Gender Identity Research and Education, Consultation Paper Response, 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:

“the 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 UK’s human rights’ culture would have to do so through education.”183

267. Similarly, Tom Hickman of Blackstone Chambers said in response to our Discussion Paper:

“A 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 generally.”184

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:

“there 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 positive.”185

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 UK’s 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 “address a limited number of cases that raise serious questions affecting the interpretation or application of the Convention and serious issues of general importance”;

2. that the UK Government “use its Chairmanship to initiate a time- bound programme of fundamental reform”;

3. that “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” should be established;

4. that “the meaning and effect of Article 41 of the Convention and the role of the Court in awarding “just satisfaction” should be revisited; and

5. that “agreement 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 level” should be established.

271. The Chair’s 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 “democratic override” 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 Commission's interim advice.

276. However, approximately one quarter of those advocating reform expressed concerns about the proposals in the Commission’s Interim Advice or the Chair’s 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:

“we 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 rights.”186

278. In addition, Amnesty International UK told us:

186Joint response from: Amnesty International; the AIRE Centre; European Human Rights Advocacy Centre; Interrights; International Commission of Jurists; Human Rights Watch; and Open Society Justice Initiative, Discussion Paper Response, p. 3.

83 “we 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 satisfaction.”187

279. Concerns raised in connection with the Chair’s parallel letter included objections to any proposals to introduce a ‘democratic override’. The Law Society of England and Wales stated:

“the 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 hook.”188

280. A few respondents expressed caution on Court reform for other reasons, including concerns that the Court’s effectiveness might be weakened by reform, or scepticism about the underlying motives for reforming the Court. One respondent said:

“I 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 governments.”189

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 Court’s workload or to enhance the efficiency of the Court. One respondent told us that:

“the 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 problem.”190

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 “as to reform of the Strasbourg court, my own main interest is in seeing its independence reinforced and the quality of its members improved.”191

283. A small number of respondents urged that the Court’s role in awarding relief/just satisfaction needed to be reformed. For example, Unlock Democracy said:

“we are also inclined to agree that the Court is not the proper forum for determining matters of relief.”192

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 Commission’s 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 Chair’s 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 Paper Response, p. 13.

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Examples of Bills of Rights

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200 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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.

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202 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes

228 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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 v1.0: http://www.parliament.uk/site-information/copyright/open-parliament-licence/

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230 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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:

• The rule of law: the commitment to power being exercised lawfully as determined by an independent judiciary

• Liberty: the freedom from both unwarranted restrictions and basic wants

• Democracy: giving as much control as possible to individuals over the decisions which affect their lives

• Fairness: the equal right of each and every person to be treated with dignity and respect

• 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 “rights and freedoms” means –

(a) the Civil and Political Rights and Freedoms set out in Schedule 1

(b) the Fair Process Rights set out in Schedule 2

(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

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;

(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 Bill of Rights for the UK? 107

(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

(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 member’s 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 member’s 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

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.

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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;

(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 (“a remedial order”) 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

A Bill of Rights for the UK? 109

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 UK’s 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

• Equality

• Dignity

110 A Bill of Rights for the UK?

• Life

• Physical and mental integrity

• Freedom from torture and inhuman or degrading treatment or punishment

• Freedom from slavery and forced labour

• Liberty

• Private and family life, home and communications

• Freedom of thought, conscience and religion

• Freedom of expression

• Freedom of association

• Right of assembly and demonstration

• Right to marry

• Right to found a family

• Property

• Freedom of movement and residence

• Right to asylum

Schedule 2 – Fair Process Rights

• Rights of arrested and detained persons

• Right to a fair criminal trial

• Right of access to court

• Right to legal representation

• Right to a fair hearing

• Right to effective remedy

• Right of access to information

• 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.

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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

(d) the fact that a wide range of measures is possible to meet the Government’s 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).

112 A Bill of Rights for the UK?

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 –

(i) prevent pollution and ecological degradation;

(ii) promote conservation and

(iii) ensure that economic development and use of natural resources are sustainable. Schedule 4 - Democratic Rights

• Right to free and fair elections

• Right to vote and to stand as a candidate at elections

A Bill of Rights for the UK? 113

• Right to participate in public life

• Citizenship

Schedule 5 - Rights of Particular Groups

• Children

• Minorities

• People with disabilities

• Victims of Crime

240 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes Annex H3 Links to Bills of Rights in other countries Australia Australian Capital Territory Australian Capital Territory Human Rights Act 2004 http://www.legislation.act.gov.au/images/pdfa.gif Victoria Victorian Charter of Human Rights and Responsibilities 2006 http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubLawToday.nsf/imgPDF Bahamas The Constitution of The Bahamas 1973 (Chapter III) http://www.lexbahamas.com/bahconfundamentalrights.htm Barbados The Constitution of Barbados 2002 (Chapter III) http://www.oas.org/dil/The_Constitution_of_Barbados.pdf Canada Canadian Charter of Rights and Freedoms 1982 http://laws-lois.justice.gc.ca/eng/Const/page-15.html Cyprus The Constitution of the Republic of Cyprus 1960 (Part II) http://www.kypros.org/Constitution/English/ Denmark The Constitution of Denmark 1953 (Part VIII) http://www.servat.unibe.ch/icl/da00000_.html Finland The Constitution of Finland 2000 (Chapter 2) http://www.finlex.fi/fi/laki/kaannokset/1999/en19990731.pdf France Declaration of the Rights of Man and the Citizen 1789 http://www.constitution.org/fr/fr_drm.htm Germany Basic Law for the Federal Republic of Germany (Grundgesetz) 1949 (Chapter 1) http://www.iuscomp.org/gla/statutes/GG.htm Gibraltar Gibraltar Constitution Order 2006 (Chapter I) http://www.gibraltarlaws.gov.gi/constitution.php Hong Kong Hong Kong Bill of Rights 1991 http://hkhrm.org.hk/english/law/eng_boro1.html

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India The Constitution of India 1950 (Part III) http://www.india.gov.in/govt/constitutions_india.php?id=2 Ireland The Constitution of Ireland (Bunreacht na hÉireann) 1937 (Articles 40- 44) www.constitution.ie Jamaica The Charter of Rights (Constitutional Amendment) Act 2011 (Chapter III) http://www.japarliament.gov.jm/attachments/341_The%20Charter%20of%20Fundamental% 20Rights%20and%20Freedoms%20(Constitutional%20Amendment)%20Act,%202011.pdf Namibia The Constitution of the Republic of Namibia 1990 (Chapter 3) http://www.grnnet.gov.na/ New Zealand New Zealand Bill of Rights Act 1990 http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html Norway The Constitution of Norway 1814 http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The-Constitution/ South Africa The Constitution of South Africa 1996 (Chapter 2) http://www.info.gov.za/documents/constitution/1996/96cons2.htm/ Spain The Constitution of Spain 1978 (Part 1) http://www.lamoncloa.gob.es/IDIOMAS/9/Espana/LeyFundamental/index.htm Sweden The Instrument of Government (Chapter 2) http://www.riksdagen.se/en/Documents-and-laws/Laws/The-Constitution/ Trinidad and Tobago The Constitution of the Republic of Trinidad and Tobago (Chapter 1) http://pdba.georgetown.edu/Constitutions/Trinidad/trinidad76.html USA United States Bill of Rights 1789 http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html Virginia Virginia Declaration of Rights 1776 http://www.constitution.org/bcp/virg_dor.htm

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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.

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European Treaty Series - No. 5

Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols No. 11 and 14

Rome, 4.XI.1950

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.

244 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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 – 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 – Rights and freedoms

Article 2 – Right to life

1 Everyone's 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 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4 – 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 “forced or compulsory labour” 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;

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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 – 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 1.c 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 – 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.

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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 – 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 – 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 – 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 one's 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 – 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

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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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – Limitation on use of restrictions on rights

248 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes 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 – European Court of Human Rights

Article 19 – 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 – Number of judges

The Court shall consist of a number of judges equal to that of the High Contracting Parties.

Article 21 – 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 – 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 – 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 – 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 Court’s registry.

Article 25 – 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;

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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 – 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 Court’s 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 – Competence of single judges 16

1 A single judge may declare inadmissible or strike out of the Court’s 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 – 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 1.b.

Article 29 – Decisions by Chambers on admissibility and merits 18

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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 – 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 – 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 – 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 – 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 – 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 – 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

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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 – 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 – 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 – 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.

252 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes Article 39 – 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 – 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 – 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 – Judgments of Chambers

Judgments of Chambers shall become final in accordance with the provisions of Article 44, paragraph 2.

Article 43 – 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 – 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 – Reasons for judgments and decisions

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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 – 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 – 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 – 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 – 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 – Expenditure on the Court

The expenditure on the Court shall be borne by the Council of Europe.

254 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes

Article 51 – 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 – Miscellaneous provisions

Article 52 – 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 – 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 – 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 – 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 – 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 – 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 – Denunciation

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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 – 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.

256 | A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes Annex J

The Human Rights Act 1998

Contains Public Sector information licensed under the Open Government Licence v1.0: http://www.nationalarchives.gov.uk/doc/open-government-licence/

A UK Bill of Rights? The Choice Before Us, Volume 2: Annexes | 257 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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 1998

1998 CHAPTER 42

An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. [9th November 1998]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Annotations:

Extent Information E1 For the extent of this Act outside the U.K., see s. 22(6)(7)

Modifications etc. (not altering text) C1 Act: certain functions of the Secretary of State transferred to the Lord Chancellor (26.11.2001) by S.I. 2001/3500, arts. 3, 4, Sch. 1 para. 5 C2 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 to in connection with any such function transferred to the Secretary of State for Constitutional Affairs (19.8.2003) by S.I. 2003/1887, art. 4, Sch. 1

Introduction

1 The Convention Rights. (1) In this Act “the Convention rights” means the rights and fundamental freedoms set out in— (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 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

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 designated derogation 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 he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol. (5) In subsection (4) “protocol” means a protocol to the Convention— (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 force before the protocol concerned is in force in relation to the United Kingdom.

Annotations:

Amendments (Textual) F1 Words in s. 1(1)(c) substituted (22.6.2004) by The Human Rights Act 1998 (Amendment) Order 2004 (S. I. 2004/1574), art. 2(1) F2 Words in s. 1 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), 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 a Convention right must take into account any— (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. (2) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this section is to be given in proceedings before any court or tribunal in such manner as may be provided by rules. (3) In this section “rules” means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this section— (a) by F3...[F4the Lord Chancellor or] the Secretary of State, in relation to any proceedings 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 Ireland— Human Rights Act 1998 (c. 42) 3 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(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 (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(2) F4 Words in s. 2(3)(a) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), 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 (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), 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 must be read and given effect in a way which is compatible with the Convention rights. (2) This section— (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 of revocation) primary legislation prevents removal of the incompatibility.

4 Declaration of incompatibility. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied— (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 incompatibility, it may make a declaration of that incompatibility. (5) In this section “court” means— [F5(a) the Supreme Court;] 4 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(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 (“a declaration of incompatibility”)— (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 (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(2); S.I. 2009/1604, art. 2(d) F6 Words in s. 4(5)(c) substituted (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 156; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4 F7 S. 4(5)(f) inserted (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68(1)-(3), Sch. 6 para. 43 (with ss. 27, 28, 29, 62); S.I. 2007/1897, art. 2(1)(c)(d)

5 Right of Crown to intervene. (1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court. (2) In any case to which subsection (1) applies— (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 party to 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 [F8Supreme Court] against any declaration of incompatibility made in the proceedings. (5) In subsection (4)— “criminal proceedings” includes all proceedings before the [F9Court Martial Appeal Court]; and “leave” means leave granted by the court making the declaration of incompatibility or by the [F10Supreme Court] Human Rights Act 1998 (c. 42) 5 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

Annotations:

Amendments (Textual) F8 Words in s. 5(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(3); S.I. 2009/1604, art. 2(d) F9 Words in s. 5(5) substituted (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 157; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4 F10 Words in s. 5(5) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(3); S.I. 2009/1604, 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 a Convention right. (2) Subsection (1) does not apply to an act if— (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 the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section “public authority” includes— (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 in connection with proceedings in Parliament. (4) F11...... (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) “An act” includes a failure to act but does not include a failure to— (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 (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 146, 148, Sch. 9 para. 66(4), Sch. 18 Pt. 5; S.I. 2009/1604, art. 2(d)(f)

Modifications etc. (not altering text) C4 S. 6(1) applied (2.10.2000) by 1999 c. 33, ss. 65(2), 170(4); S.I. 2000/2444, art. 2, Sch. 1 (subject to transitional provisions in arts. 3, 4, Sch. 2) 6 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

C5 S. 6(3)(b) modified (1.12.2008 with exception in art. 2(2) of commencing S.I.) by Health and Social Care Act 2008 (c. 14), ss. 145(1)-(4), 170 (with s. 145(5)); S.I. 2008/2994, art. 2(1)

7 Proceedings. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (2) In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. (5) Proceedings under subsection (1)(a) must be brought before the end of— (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 circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (6) In subsection (1)(b) “legal proceedings” includes— (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 he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought 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 “rules” means— (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 purposes of this section or rules of court, (b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes, (c) in relation to proceedings before a tribunal in Northern Ireland— (i) which deals with transferred matters; and (ii) for which no rules made under paragraph (a) are in force, rules made by a Northern Ireland department for those purposes, Human Rights Act 1998 (c. 42) 7 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

and includes provision made by order under section 1 of the M1Courts and Legal Services 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 the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to— (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, supplemental, consequential or transitional provision as the Minister making it considers appropriate. (13) “The Minister” includes the Northern Ireland department concerned.

Annotations:

Amendments (Textual) F12 Words in s. 7(9)(a) repealed (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(2) F13 Words in s. 7(9)(a) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), art. 8, Sch. para. 3,

Modifications etc. (not altering text) C6 S. 7 amended (2.10.2000) by Regulation of Investigatory Powers Act 2000 (c. 23), ss. 65(2)(a), 83 (with s. 82(3); S.I. 2000/2543, art. 3 C7 S. 7: referred to (11.3.2005) 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 (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), art. 3(2) (with arts. 4, 5) C9 S. 7(11): functions of the Secretary of State to be exercisable concurrently with the Lord Chancellor (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), art. 3(2) (with arts. 4, 5)

Marginal Citations M1 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, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and 8 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining— (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 of Human Rights in relation to the award of compensation under Article 41 of the Convention. (5) A public authority against which damages are awarded is to be treated— (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 of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made; (b) for the purposes of the M3Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made. (6) In this section— “court” includes a tribunal; “damages” means damages for an unlawful act of a public authority; and “unlawful” means unlawful under section 6(1).

Annotations:

Marginal Citations M2 1940 c. 42. M3 1978 c. 47.

9 Judicial acts. (1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only— (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 subject of judicial review. (3) In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention. (4) An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined. (5) In this section— “appropriate person” means the Minister responsible for the court concerned, or a person or government department nominated by him; Human Rights Act 1998 (c. 42) 9 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

“court” includes a tribunal; “judge” 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 to exercise the jurisdiction of a court; “judicial act” means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; and “rules” has the same meaning as in section 7(9).

Annotations:

Amendments (Textual) F14 Words in definition s. 9(5) inserted (N.I.)(1.4.2005) by 2002 c. 26, s. 10(6), Sch. 4 para. 39; S.R. 2005/109, art. 2 Sch.

Remedial action

10 Power to take remedial action. (1) This section applies if— (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies— (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 the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention. (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility. (3) If, in the case of subordinate legislation, a Minister of the Crown considers— (a) that it is necessary to amend the primary legislation under which the subordinate legislation in question was made, in order to enable the incompatibility to be removed, and (b) that there are compelling reasons for proceeding under this section, he may by order make such amendments to the primary legislation as he considers necessary. (4) This section also applies where the provision in question is in subordinate legislation and has been quashed, or declared invalid, by reason of incompatibility with a Convention right and the Minister proposes to proceed under paragraph 2(b) of Schedule 2. 10 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(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 “legislation” does not include a Measure of the Church Assembly or of the 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 person’s reliance on a Convention right does not restrict— (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, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied— (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 the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to— (a) the extent to which— (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 section— “court” includes a tribunal; and “relief” includes any remedy or order (other than in criminal proceedings).

13 Freedom of thought, conscience and religion. (1) If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Human Rights Act 1998 (c. 42) 11 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right. (2) In this section “court” includes a tribunal.

Derogations and reservations

14 Derogations. (1) In this Act “designated derogation” means— F15...... any derogation by the United Kingdom from an Article of the Convention, or of any protocol to the Convention, which is designated for the purposes of this Act in an order made by the [F16Secretary of State] F17(2) ...... (3) If a designated derogation is amended or replaced it ceases to be a designated derogation. (4) But subsection (3) does not prevent the [F18Secretary of State] from exercising his power under subsection (1) F19. . . to make a fresh designation order in respect of the Article concerned. (5) The [F20Secretary of State] must by order make such amendments to Schedule 3 as he considers appropriate to reflect— (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 Kingdom of a proposed derogation.

Annotations:

Amendments (Textual) F15 S. 14(1): from “(a)” to “(b)” repealed (1.4.2001) by S.I. 2001/1216, art. 2(a) F16 Words in s. 14 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(1) F17 S. 14(2) repealed (1.4.2001) by S.I. 2001/1216, art. 2(b) F18 Words in s. 14 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(1) F19 S. 14(4): “(b)” repealed (1.4.2001) by S.I. 2001/1216, art. 2(c) F20 Words in s. 14 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)

15 Reservations. (1) In this Act “designated reservation” means— (a) the United Kingdom’s reservation to Article 2 of the First Protocol to the Convention; and 12 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(b) any other reservation by the United Kingdom to an Article of the Convention, or of any protocol to the Convention, which is designated for the purposes of this 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 of Schedule 3. (3) If a designated reservation is withdrawn wholly or in part it ceases to be a designated reservation. (4) But subsection (3) does not prevent the [F22Secretary of State] from exercising his power under subsection (1)(b) to make a fresh designation order in respect of the Article concerned. (5) [F23Secretary of State] must by order make such amendments to this Act as he considers appropriate to reflect— (a) any designation order; or (b) the effect of subsection (3).

Annotations:

Amendments (Textual) F21 Words in s. 15 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(1) F22 Words in s. 15 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(1) F23 Words in s. 15 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), 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 derogation ceases to have effect for the purposes of this Act— F24...... , at the end of the period of five years beginning with the date on which the order designating it was made. (2) At any time before the period— (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 period of five years. (3) An order under section 14(1) F27. . . ceases to have effect at the end of the period for consideration, unless a resolution has been passed by each House approving the order. (4) Subsection (3) does not affect— (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) “period for consideration” means the period of forty days beginning with the day on which the order was made. Human Rights Act 1998 (c. 42) 13 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(6) In calculating the period for consideration, no account is to be taken of any time during which— (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 of State] must by order make such amendments to this Act as he considers are required to reflect that withdrawal.

Annotations:

Amendments (Textual) F24 S. 16(1): words from “(a)” to “any other derogation” repealed (1.4.2001) by S.I. 2001/1216, art. 3(a) F25 Words in s. 16(2)(a) repealed (1.4.2001) by S.I. 2001/1216, art. 3(b) F26 Words in s. 16 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(1) F27 S. 16(3)(4)(b): “(b)” repealed (1.4.2001) by S.I. 2001/1216, art. 3(c)(d) F28 Words in s. 16 substituted (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(1)

17 Periodic review of designated reservations. (1) The appropriate Minister must review the designated reservation referred to in section 15(1)(a)— (a) before the end of the period of five years beginning with the date on which section 1(2) came into force; and (b) if that designation is still in force, before the end of the period of five years beginning with the date on which the last report relating to it was laid under subsection (3). (2) The appropriate Minister must review each of the other designated reservations (if any)— (a) before the end of the period of five years beginning with the date on which the 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 years beginning with the date on which the last report relating to it was laid under subsection (3). (3) The Minister conducting a review under this section must prepare a report on the result of 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 “judicial office” means the office of— (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; 14 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(c) Lord Justice of Appeal, judge of the High Court or county court judge, in Northern Ireland. (2) The holder of a judicial office may become a judge of the European Court of Human Rights (“the Court”) 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 judge of the Court. (4) In respect of any period during which he is a judge of the Court— (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 [F29Senior Courts Act 1981](maximum number of judges) nor as a judge of the [F30Senior Courts] 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 for the purposes of section 1(1) of the M4Court of Session Act 1988 (maximum number of judges) or of section 9(1)(c) of the M5Administration of Justice Act 1973 (“the 1973 Act”) (salaries etc.); (c) a Lord Justice of Appeal or judge of the High Court in Northern Ireland is not to count as a judge of the relevant court for the purposes of section 2(1) or 3(1) of the M6Judicature (Northern Ireland) Act 1978 (maximum number of judges) nor as a judge of the [F31Court of Judicature] of Northern Ireland for the 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 the M7Courts Act 1971 (salaries etc.); (e) a sheriff is not to count as such for the purposes of section 14 of the M8Sheriff Courts (Scotland) Act 1907 (salaries etc.); (f) a county court judge of Northern Ireland is not to count as such for the purposes 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 M10Sheriff Courts (Scotland) Act 1971 (temporary appointment of sheriff principal) applies, while he holds that appointment, as if his office is vacant. (6) Schedule 4 makes provision about judicial pensions in relation to the holder of a judicial office who serves as a judge of the Court. (7) The Lord Chancellor or the Secretary of State may by order make such transitional provision (including, in particular, provision for a temporary increase in the maximum number of judges) as he considers appropriate in relation to any holder of a judicial office 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) in relation to any holder of a judicial office listed in subsection (1)(a)— (a) before deciding what transitional provision it is appropriate to make, the person making the order must consult the Lord Chief Justice of England and Wales; (b) before making the order, that person must consult the Lord Chief Justice of England and Wales. (7B) The following paragraphs apply to the making of an order under subsection (7) in relation to any holder of a judicial office listed in subsection (1)(c)— Human Rights Act 1998 (c. 42) 15 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(a) before deciding what transitional provision it is appropriate to make, the person making the order must consult the Lord Chief Justice of Northern Ireland; (b) before making the order, that person must consult the Lord Chief Justice of Northern 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) to exercise his functions under this section. (7D) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section— (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) 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 (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 4; S.I. 2009/1604, art. 2(d) F30 Words in s. 18(4)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 4; S.I. 2009/1604, art. 2(d) F31 Words in s. 18(4)(c) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 6; S.I. 2009/1604, art. 2(d) F32 S. 18(7A)-(7D) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 148, Sch. 4 para. 278; S.I. 2006/1014, art. 2, Sch. 1 para. 11(v)

Marginal Citations M4 1988 c. 36. M5 1973 c. 15. M6 1978 c. 23. M7 1971 c. 23. M8 1907 c. 51. M9 1959 c. 25 (N.I.). 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, before Second Reading of the Bill— (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill. (2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate. 16 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

Supplemental

20 Orders etc. under this Act. (1) Any power of a Minister of the Crown to make an order under this Act is exercisable by 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 statutory instrument. (3) Any statutory instrument made under section 14, 15 or 16(7) must be laid before Parliament. (4) No order may be made by F35...[F36the Lord Chancellor or] the Secretary of State under section 1(4), 7(11) or 16(2) unless a draft of the order has been laid before, and approved by, each House of Parliament. (5) Any statutory instrument made under section 18(7) or Schedule 4, or to which subsection (2) applies, shall be subject to annulment in pursuance of a resolution of either House of Parliament. (6) The power of a Northern Ireland department to make— (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 (Northern Ireland) Order 1979. (7) Any rules made under section 2(3)(c) or 7(9)(c) shall be subject to negative resolution; and section 41(6) of the M12Interpretation Act Northern Ireland) 1954 (meaning of “subject to negative resolution”) shall apply as if the power to make the rules were conferred by an Act of the Northern Ireland Assembly. (8) No order may be made by a Northern Ireland department under section 7(11) unless a draft of the order has been laid before, and approved by, the Northern Ireland Assembly.

Annotations:

Amendments (Textual) F33 Words in s. 20(2) repealed (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(2) F34 Words in s. 20(2) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), art. 8, Sch. para. 3 F35 Words in s. 20(4) repealed (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(2) F36 Words in s. 20(4) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), art. 8, Sch. para. 3

Marginal Citations M11 S.I. 1979/1573 (N.I. 12). M12 1954 c. 33 (N.I.). Human Rights Act 1998 (c. 42) 17 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

21 Interpretation, etc. (1) In this Act— “amend” includes repeal and apply (with or without modifications); “the appropriate Minister” means the Minister of the Crown having charge of the appropriate authorised government department (within the meaning of the M13Crown Proceedings Act 1947); “the Commission” means the European Commission of Human Rights; “the Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom; “declaration of incompatibility” means a declaration under section 4; “Minister of the Crown” has the same meaning as in the Ministers of the M14Crown Act 1975; “Northern Ireland Minister” includes the First Minister and the deputy First Minister in Northern Ireland; “primary legislation” means any— (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 Council— (g) made in exercise of Her Majesty’s 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 Wales, the Counsel General to the Welsh Assembly Government,] a member of the Scottish Executive, a Northern Ireland Minister or a Northern Ireland department) to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation; “the First Protocol” means the protocol to the Convention agreed at Paris on 20th March 1952; F38... “the Eleventh Protocol” means the protocol to the Convention (restructuring the control machinery established by the Convention) agreed at Strasbourg on 11th May 1994; [F39“the Thirteenth Protocol” means the protocol to the Convention (concerning the abolition of the death penalty in all circumstances) agreed at Vilnius on 3rd May 2002;] “remedial order” means an order under section 10; “subordinate legislation” means any— (a) Order in Council other than one— (b) made in exercise of Her Majesty’s Royal Prerogative; 18 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(c) made under section 38(1)(a) of the Northern Ireland Constitution Act 1973 or the corresponding provision of the Northern Ireland Act 1998; or (d) amending an Act of a kind mentioned in the definition of primary legislation; (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 operates to bring one or more provisions of that legislation into force or amends any primary legislation); (l) order, rules, regulations, scheme, warrant, byelaw or other instrument made under legislation mentioned in paragraph (b), (c), (d) or (e) or made under an Order in Council applying only to Northern Ireland; (m) order, rules, regulations, scheme, warrant, byelaw or other instrument made by a member of the Scottish Executive [F41, Welsh Ministers, the First Minister for Wales, the Counsel General to the Welsh Assembly Government,] a Northern Ireland Minister or a Northern Ireland department in exercise of prerogative or other executive functions of Her Majesty which are exercisable by such a person on behalf of Her Majesty; “transferred matters” has the same meaning as in the Northern Ireland Act 1998; and “tribunal” 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 of the Convention as they had effect immediately before the coming into force of the Eleventh Protocol. (3) The reference in paragraph (d) of section 2(1) to Article 46 includes a reference to Articles 32 and 54 of the Convention as they had effect immediately before the coming into force of the Eleventh Protocol. (4) The references in section 2(1) to a report or decision of the Commission or a decision of the Committee of Ministers include references to a report or decision made as provided by paragraphs 3, 4 and 6 of Article 5 of the Eleventh Protocol (transitional provisions). (5) F42......

Annotations:

Extent Information E2 For the extent of s. 21 outside the U.K. 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 para.56(2) (with Sch. 11 para. 22) the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Human Rights Act 1998 (c. 42) 19 Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act. F38 S. 21(1): definition of "the Sixth Protocol" omitted (22.6.2004) by virtue of The Human Rights Act 1998 (Amendment) Order 2004 (S.I. 2004/1574), art. 2(2) F39 S. 21(1): definition of "the Thirteenth Protocol" inserted (22.6.2004) by virtue of The Human Rights Act 1998 (Amendment) Order 2004 (S.I. 2004/1574), art. 2(2) F40 Words in the definition of "subordinate legislation" in s. 21(1) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.56(3) (with Sch. 11 para. 22) the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act. F41 Words in the definition of "subordinate legislation" in s. 21(1) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.56(4) (with Sch. 11 para. 22) the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act. F42 S. 21(5) repealed (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 17; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information I1 S. 21 wholly in force at 2.10.2000; s. 21(5) in force at Royal Assent, see s. 22(2)(3); s. 21 in force so far as not already in force (2.10.2000) by S.I. 2000/1851, art. 2

Marginal Citations M13 1947 c. 44. M14 1975 c. 26. M15 1973 c. 36. M16 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 State may 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 the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section. (5) This Act binds the Crown. (6) This Act extends to Northern Ireland. (7) F43...... 20 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

Annotations:

Subordinate Legislation Made P1 S. 22(3) power partly exercised: 24.11.1998 appointed for specified provisions by S.I. 1998/2882, art. 2 S. 22(3) power fully exercised: 2.10.2000 appointed for remaining provisions by S.I. 2000/1851, art. 2

Amendments (Textual) F43 S. 22(7) repealed (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 17; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4 Human Rights Act 1998 (c. 42) 21 SCHEDULE 1 – The Articles Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

SCHEDULES

SCHEDULE 1 Section 1(3).

THE ARTICLES

PART I

THE CONVENTION

RIGHTS AND FREEDOMS

ARTICLE 2

RIGHT TO LIFE 1 Everyone’s 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

PROHIBITION OF TORTURE No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 4

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 “forced or compulsory labour” 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; 22 Human Rights Act 1998 (c. 42) SCHEDULE 1 – The Articles Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(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

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 1(c) 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. Human Rights Act 1998 (c. 42) 23 SCHEDULE 1 – The Articles Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

ARTICLE 6

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 interest 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

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

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 24 Human Rights Act 1998 (c. 42) SCHEDULE 1 – The Articles Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

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

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 one’s 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

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

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. Human Rights Act 1998 (c. 42) 25 SCHEDULE 1 – The Articles Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

ARTICLE 12

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 14

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 16

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

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

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. 26 Human Rights Act 1998 (c. 42) SCHEDULE 1 – The Articles Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

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 one shall be deprived of his possessions except in the public interest and subject to the conditions provided 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 enforce such laws as it deems necessary to control the use of property in accordance with the general interest 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 it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

ARTICLE 3

RIGHT TO FREE ELECTIONS The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the 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 (22.6.2004) by The Human Rights Act 1998 (Amendment) Order 2004 (S.I. 2004/1574), 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) 27 SCHEDULE 2 – Remedial Orders Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

PART III

THE SIXTH PROTOCOL ......

SCHEDULE 2 Section 10.

REMEDIAL ORDERS

Orders 1 (1) A remedial order may— (a) contain such incidental, supplemental, consequential or transitional provision 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) includes— (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 which it affects. (4) No person is to be guilty of an offence solely as a result of the retrospective effect of a remedial order.

Procedure 2 No remedial order may be made unless— (a) a draft of the order has been approved by a resolution of each House of Parliament made after the end of the period of 60 days beginning with the day on which the draft was laid; or (b) it is declared in the order that it appears to the person making it that, because of the urgency of the matter, it is necessary to make the order without a draft being so approved.

Orders laid in draft 3 (1) No draft may be laid under paragraph 2(a) unless— (a) the person proposing to make the order has laid before Parliament a document which contains a draft of the proposed order and the required information; and (b) the period of 60 days, beginning with the day on which the document required by this sub-paragraph was laid, has ended. 28 Human Rights Act 1998 (c. 42) SCHEDULE 2 – Remedial Orders Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(2) If representations have been made during that period, the draft laid under paragraph 2(a) must be accompanied by a statement containing— (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 cases 4 (1) If a remedial order (“the original order”) is made without being approved in draft, the person making it must lay it before Parliament, accompanied by the required information, after it is made. (2) If representations have been made during the period of 60 days beginning with the day on which the original order was made, the person making it must (after the end of that period) lay before Parliament a statement containing— (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 must— (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 original order was made, a resolution has not been passed by each House approving the original or replacement order, the order ceases to have effect (but without that affecting anything previously done under either order or the power to make a fresh remedial order).

Definitions 5 In this Schedule— “representations” means representations about a remedial order (or proposed remedial order) made to the person making (or proposing to make) it and includes any relevant Parliamentary report or resolution; and “required information” means— (a) an explanation of the incompatibility which the order (or proposed order) seeks to remove, including particulars of the relevant declaration, finding or order; and (b) a statement of the reasons for proceeding under section 10 and for making an order in those terms.

Calculating periods 6 In calculating any period for the purposes of this Schedule, no account is to be taken of any time during which— (a) Parliament is dissolved or prorogued; or (b) both Houses are adjourned for more than four days. [F487 (1) This paragraph applies in relation to– Human Rights Act 1998 (c. 42) 29 SCHEDULE 3 – Derogation and Reservation Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(a) any remedial order made, and any draft of such an order proposed to be made,– (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), document or statement subject to the following modifications. (3) Any reference to Parliament, each House of Parliament or both Houses of Parliament shall be construed as a reference to the Scottish Parliament. (4) Paragraph 6 does not apply and instead, in calculating any period for the purposes of this Schedule, no account is to be taken of any time during which the Scottish Parliament is dissolved or is in recess for more than four days.]

Annotations:

Amendments (Textual) F48 Sch. 2 para. 7 inserted (27.7.2000) by S.I. 2000/2040, 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 (1.4.2001) by S.I. 2001/1216, art. 4

F50 PART I

DEROGATION ...... 30 Human Rights Act 1998 (c. 42) SCHEDULE 4 – Judicial Pensions Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

Annotations:

Amendments (Textual) F50 Sch. 3 Pt. I repealed (8.4.2005) by The Human Rights Act 1998 (Amendment) Order 2005 (S.I. 2005/1071), art. 2

PART II

RESERVATION At the time of signing the present (First) Protocol, I declare that, in view of certain provisions of the Education Acts in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far as it is compatible with the provision of 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.

SCHEDULE 4 Section 18(6).

JUDICIAL PENSIONS

Duty to make orders about pensions 1 (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 ECHR judge. (2) A pensions order must include such provision as the Minister making it considers is necessary to secure that— (a) an ECHR judge who was, immediately before his appointment as an ECHR judge, a member of a judicial pension scheme is entitled to remain as a member of that scheme; (b) the terms on which he remains a member of the scheme are those which would have been applicable had he not been appointed as an ECHR judge; and (c) entitlement to benefits payable in accordance with the scheme continues to be determined as if, while serving as an ECHR judge, his salary was that which would (but for section 18(4)) have been payable to him in respect of his continuing service as the holder of his judicial office.

Contributions 2 A pensions order may, in particular, make provision— (a) for any contributions which are payable by a person who remains a member of a scheme as a result of the order, and which would otherwise be payable by deduction from his salary, to be made otherwise than by deduction from his salary as an ECHR judge; and Human Rights Act 1998 (c. 42) 31 SCHEDULE 4 – Judicial Pensions Document Generated: 2012-09-16 Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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)

(b) for such contributions to be collected in such manner as may be determined by the administrators of the scheme.

Amendments of other enactments 3 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 considers necessary or expedient to ensure the proper administration of any scheme to which it relates.

Definitions 4 In this Schedule— “appropriate Minister” means— (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; “ECHR judge” means the holder of a judicial office who is serving as a judge of the Court; “judicial pension scheme” means a scheme established by and in accordance with a pensions Act; “pensions Act” means— (a) the M17County Courts Act Northern Ireland) 1959; (b) the M18Sheriffs’ Pensions (Scotland) Act 1961; (c) the M19Judicial Pensions Act 1981; or (d) the M20Judicial Pensions and Retirement Act 1993; and “pensions order” means an order made under paragraph 1.

Annotations:

Marginal Citations M17 1959 c. 25 (N.I.). M18 1961 c. 42. M19 1981 c. 20. M20 1993 c. 8. 32 Human Rights Act 1998 (c. 42) Document Generated: 2012-09-16

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial 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.

Commencement Orders yet to be applied to the Human Rights Act 1998: Commencement Orders bringing legislation that affects this Act into force: – S.I. 2006/1014 art. 2(a) Sch. 1 para. 11(v) commences (2005 c. 4) – S.I. 2007/1897 art. 2(1) commences (2005 c. 9) – S.I. 2009/812 art. 3(a)(b) commences (2006 c. 52) – S.I. 2009/1604 art. 2 commences (2005 c. 4)