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The UK Bill of Rights Commission publishes its report

26 December 2012
On Tuesday, the independent Commission established in March 2011 published its report on its investigation into the creation of a UK Bill of Rights to the Government. As expected, following a second consultation and the resignation of one of its members, the Commission is divided in its opinions and has been unable to offer a unanimous proposal for reform.

Seven of the nine members of the Commission have given a majority opinion that "on balance, there is a strong argument in favour of a UK Bill of Rights". The UK, they state, unlike the majority of signatory states to the European Convention on Human Rights (the "ECHR"), does not have either its own written constitution or its own national bill of rights. This has led to a "lack of public understanding and 'ownership' of the Human Rights Act" because the rights it relies on appear European rather than British. Education alone is an insufficient means of overturning the poor public image that the Human Rights Act (the "HRA") has, and the creation of the UK Bill of Rights would create a sense of ownership, which could also provide "greater protection against the possible abuse of power by the state and its agents".

However, the remaining two members of the Commission, Baroness Kennedy, a Labour peer, and Phillipe Sands, a law professor, in their minority opinion, state that "the moment is not ripe for such a conclusion".  First, they argue, it is premature to impose a Bill of Rights on the UK at a time when the future of the UK, with a referendum on Scottish independence likely in 2014, is so uncertain. Secondly, they point out, responses to the two consultations, which show "overwhelming support to retain the system established by the Human Rights Act (and very considerable opposition, for now at least, to the idea of a UK Bill of Rights)", make it "abundantly clear that there is no ownership issue". Third, and perhaps most interestingly, they state their concern at the "real possibility that some people support a UK Bill of Rights as a path towards withdrawal from the European Convention".  Moreover, they state, this is a concern that has in fact arisen from the comments of other members of the Commission itself.  Rather than sticking to the terms of reference on which the Commission was established, namely "incorporating and building on all our obligations under the [ECHR]", they claim that there has been "a clear departure that is not accidental". This "opens up the possibility that their conclusions, however tentative, will be used to decouple the UK from the [ECHR]…[and] that is not a risk that we are willing to take".

This split undermines the significance of the Commission's other findings. On the question as to whether (if it were to exist) a UK Bill of Rights should include additional rights to those contained in the ECHR, the Commission states rather weakly that it "does not oppose the concept…in principle". The most obvious candidate for inclusion, it states, is the right to equality and non-discrimination but it also identifies, presumably with a side glance to recent detention cases, "a number of rights relating to our civil and criminal justice system that have come under threat from short term political pressures under successive governments that we would like to see specifically included". The Commission also rejected the idea of making any potential rights conditional on the exercise of responsibilities. Finally, the Commission voiced its approval for the mechanism by which senior courts, under the HRA, can issue declarations of incompatibility. This, it states strikes "a sensible balance between the ultimate Sovereignty of Parliament and the duty of courts to declare and enforce the law".

On the basis of the Commission's split proposals, and the immediate political reaction to them, it seems unlikely that there will be reform towards a UK Bill of Rights before the next election. Devolution in the UK is one important sticking point, but it is clear that the greatest obstacle to the Commission has been the suspicion that, rather than strengthening the UK's adherence to the ECHR, a UK Bill of Rights would be used to undermine it.

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