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Commission on a Bill of Rights 2012 volu A UK Bill of Rights? The Choice Before Us Volume 1 December 2012 © Members of the Commission on a Bill of Rights 2012 You may re-use this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ 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 Table of Contents Letter to Ministers 2 Terms of Reference 5 Our Approach to Our Work 6 Overview 8 Chapter 1: The Commission and its Work Programme 40 Chapter 2: The Constitutional Background to our Inquiry 45 Chapter 3: What is a Bill of Rights? 53 Chapter 4: The International Landscape of Human Rights 72 Chapter 5: The European Landscape of Human Rights 83 Chapter 6: Human Rights in the UK 102 Chapter 7: Arguments for and against a UK Bill of Rights 131 Chapter 8: The Language of Rights, Additional Rights, and Responsibilities 145 Chapter 9: Devolution and a UK Bill of Rights 163 Chapter 10: Promoting a Better Understanding of the UK’s Obligations under the Convention 169 Chapter 11: Further Reform of the European Court of Human Rights 172 Chapter 12: Conclusions 175 Individual Papers from Members 181 Unfinished Business, by Lord Faulks QC and Jonathan Fisher QC 182 A UK Bill of Rights, by Martin Howe QC 192 Entrenchment of a UK Bill of Rights, by Martin Howe QC 218 In Defence of Rights, by Baroness Kennedy of The Shaws QC and Professor Philippe Sands QC 222 A Personal Explanatory Note, by Lord Lester of Herne Hill QC 231 An Aspect of Strasbourg Court Reform, by Anthony Speaight QC 235 Devolution Options, by Anthony Speaight QC 243 Mechanisms of a UK Bill of Rights, by Anthony Speaight QC 257 A UK Bill of Rights? The Choice Before Us, Volume 1 | 1 2 | A UK Bill of Rights? The Choice Before Us, Volume 1 Sir Leigh Lewis KCB, Chair Post point 9.55 102 Petty France London SW1H 9AJ T: 020 3334 2486 E:enquiries@commissiononabillofrights. gsi.gov.uk Rt Hon Nick Clegg MP Deputy Prime Minister and Lord President of the Privy Council 70 Whitehall London SW1A 2AS Rt Hon Chris Grayling MP Lord Chancellor and Secretary of State for Justice 102 Petty France London SW1H 9AJ 18 December 2012 On 18 March 2011 the Government announced to Parliament the establishment of a Commission on a Bill of Rights and invited me to become its Chair. Our terms of reference asked that we aim to report no later than by the end of 2012. On behalf of the members of the Commission I now have pleasure in submitting our report. Yours sincerely Sir Leigh Lewis KCB Chair A UK Bill of Rights? The Choice Before Us, Volume 1 | 3 4 | A UK Bill of Rights? The Choice Before Us, Volume 1 Terms of Reference The Commission's terms of reference were: "[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. It will 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. It should provide interim 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. It should consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012.” A UK Bill of Rights? The Choice Before Us, Volume 1 | 5 Our Approach to Our Work 1. Many Government commissions bring together a group of varied individuals to investigate, by the consideration of evidence and of the views of respondents, a topic on which they have little previous opinion. This Commission is different. It has been composed, and we must presume deliberately composed, of people who already had well defined views on the protection of fundamental rights. Those well defined viewpoints come from many different places in the political spectrum. 2. Our Chair comes from a different, non-legal, background and, fittingly, brought no strong pre-conceived views to our work. But his extensive experience at senior level in Government has brought a further dimension to our deliberations. 3. Therefore, whilst we have all found our thinking influenced, and sometimes substantially altered, by the responses and discussions which we have had over the past 18 months, our deliberations have also involved an in depth exploration of each other's long-standing convictions. This has been a process of identification of underlying values and aspirations. A central purpose, as we have seen it, of the Government assembling so politically disparate a group to examine a topic characterised by so much misunderstanding has been to ascertain whether differences might be more apparent than real. 4. This dialogue both with respondents and between ourselves has revealed surprisingly wide areas of agreement. It has also allowed us to identify the roots of our intellectual and political differences. We have not attempted to talk each other out of deeply held beliefs: not only would such an attempt have been futile, but it would not have served what we have perceived as our underlying purpose. Our aim has not been to find a lowest common denominator compromise, but to release from the fog of political banalities shared fundamental convictions which we genuinely hold. Those commentators who assumed that we would simply rehearse our different philosophies and prejudices would have been sadly disappointed if they had sat through our discussions. Indeed this country’s debate on human rights would be far better served by a genuine attempt to find that on which most sensible people would agree than by the polarised and sometimes exaggerated polemic which too often tends to characterise the debate currently. 5. It is important to say at the outset that we have all interpreted our terms of reference as treating the UK's continuing adherence to the European Convention on Human Rights as a ‘given’. They speak of a Bill that "builds on all our obligations under the” Convention. 6. There are obligations on a state under the Convention only so long as that state remains a contracting party to the treaty: so the wording of our terms of reference 6 | A UK Bill of Rights? The Choice Before Us, Volume 1 clearly, in our view, presupposes continuing adherence. Therefore, although during the period in which the Commission's work has been undertaken there have been a number of suggestions that the UK withdraw from the Convention, temporarily or permanently, we have not considered it to be within our scope to open that question. Accordingly, we do not in this report analyse arguments for and against the UK's continuing adherence to the Convention. 7. We have considered it to be an important part of our work to recognise the points at which there is a divergence of opinion, and identify the true source of that divergence. The most significant source of disagreement, albeit that it has important ramifications, is as to how creative a court should be: in particular, the issue arises in relation to the role and jurisprudence of the European Court of Human Rights in Strasbourg and of UK courts in interpreting and applying the Convention rights. 8. We are united in believing that there needs to be respect for the existence of differing intellectually coherent and valid viewpoints in relation to the human rights debate, and that the debate needs to be well informed and not distorted by the stereotypes and caricatures which have all too often characterised that debate in recent years. That is the fundamental approach that we ourselves have adopted in producing this report. It is also our first, agreed, conclusion. A UK Bill of Rights? The Choice Before Us, Volume 1 | 7 A UK Bill of Rights? – The Choice Before Us Overview Introduction 1. Few subjects generate more strongly-held views than that of human rights. Scarcely a week passes without the appearance of headlines supporting or condemning the latest human rights court judgment. Successive governments are routinely accused by their opponents of ignoring or reducing the rights of individuals. High profile court cases involving potential extradition or deportation turn increasingly on whether the human rights of those facing such action will be infringed. The media, politicians, commentators, academics and lawyers queue up to deliver their views, at times in colourful language, on the latest human rights controversy. Small wonder that the first casualty of such polemic is all too often serious analysis of the issues. 2. Into such waters was this Commission launched. Its members, the Chair apart, were nominated in equal part by the two coalition parties. Those who read this, our report, will form their own judgments of our work and its usefulness. But one thing is certain. As we have set out in our introductory chapter on our approach, we have not been willing as members of the Commission to be stereotyped along pre-ordained lines. We have debated. We have argued. We have put forward our views. But we have also listened to one another. And we have been willing to change our views and set aside our earlier opinions.
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