Colm O’Cinneide: The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?

a_ocinneideThe Commission on a Bill of Rights has reported. As expected, its members did not reach agreement on a common set of conclusions. Seven of the nine commissioners took the view that there were ‘strong arguments in favour of a UK Bill of Rights’, on the basis that it would represent a ‘fresh beginning’ and provide a way of  side-stepping the  ‘highly polarised debate’ that now surrounds the HRA. In their view, such a Bill of Rights should provide ‘no less protection than is contained in the Human Rights Act’, and be ‘written in language which reflected the distinctive history and heritage of the countries within the United Kingdom’ in order to attract  ‘greater public ownership’ and popular legitimacy than the HRA currently enjoys. However, two commissioners, Baroness Kennedy QC and Philippe Sands QC, disagree: in their view, the majority have failed to identify any real shortcomings in the functioning of the HRA, the case for introducing a new Bill of Rights has not been made, and there is a real risk that the majority’s conclusions will be used to justify attempts to ‘decouple’ the UK from the ECHR system of rights protection and to dilute rights protection for non-citizens and other vulnerable groups.

Media and political reaction to the Commission’s report has been largely hostile. Many commentators have already written it off in Sadiq Khan MP’s phrase as a ‘dog’s breakfast’, and it may disappear into political limbo. However, public lawyers will find much in the report to sink their teeth into, even if not everything in it will be to their taste.

To start with, the Commission’s report engages seriously with the complexity of UK human rights law while attempting to stay within its constrained terms of reference. As Adam Wagner has suggested, it has produced an ‘interesting health check of the human rights system as it is functioning today, warts and all’. It shows considerable sensitivity when it comes to the devolved regions, and correctly makes the point that any move towards drawing up a UK Bill of Rights must proceed gradually and take place within the context of a wider constitutional debate. The majority also make the important point that most Council of Europe member states have national bill of rights which often protect rights to a similar or even a greater degree than the ECHR while also attracting a high degree of ‘public ownership’, in contrast to the HRA.

However, the majority then leap to the conclusion that a UK Bill of Rights couched in suitably resonant language could come to enjoy a similar status. This is a big assumption. Not all national bill of rights have enjoyed a charmed existence – for example, the Canadian Bill of Rights 1960 failed to attract popular affection or to protect rights to any meaningful degree. Everything depends on the content of a Bill of Rights, its mode of enactment and the substance of the legal protection it provides for human rights – and the majority report is remarkably vague when it comes to these key points.

For example, the majority provide little detail as to how any UK Bill of Rights might function in concrete legal terms. They suggest that the ‘mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act’ and in particular should contain a similar mechanism to the declaration of incompatibility provided for under s. 4 HRA. However, by mentioning s. 4 while conspicuously omitting any reference to s. 3 HRA, this conclusion obscures more than it illuminates when it comes to the key question of how much freedom should courts have to interpret legislation in a manner that complies with human rights principles. Crucially, the report is also silent on the key legal issue as to whether Convention rights as interpreted by the European Court of Human Rights should continue to be applied by national courts in tandem with any new national provisions, as is the case in every other member state of the Council of Europe.

The majority does reach a clear conclusion that socio-economic and environmental rights should not be protected under any future UK Bill of Rights, on the basis that it is ‘undesirable in principle to open up to decisions of the judiciary issues which, in their view, are better left, to elected legislatures’. In contrast, it concludes that a Bill of Rights could protect some additional rights such as the right not to be discriminated against on the grounds of ‘innate characteristics’, such as gender or ethnic origin. However, this specific right is already effectively protected under EU law and the Equality Act 2010, and the report sheds little light on what other rights could be protected that are not currently covered by the HRA.

In general, the majority report reads like a summary of the limited common ground shared by the seven commissioners who agreed to lend their names to it. The differences it glosses over are graphically illustrated by the separate papers written by various members of the Commission which are attached to the main report. These papers present a fascinating diversity of views, and highlight the tenuous nature of the common ground shared by the majority.

For example, Martin Howe QC sets out in detail in a paper entitled ‘A UK Bill of Rights’ how he thinks such a Bill of Rights could be worded using the language of the common law so as to provide better protection for basic civil and political rights than currently exists under the ECHR/HRA. However, he also suggests that such a Bill of Rights could legitimately grant non-nationals a lesser degree of rights protection than currently exists under the ECHR/HRA. Furthermore, in a subsequent paper entitled ‘Entrenchment of a UK Bill of Rights’, he agrees with Anthony Speaight QC that the judicial power to re-interpret legislation under s. 3 HRA should be significantly pruned back. In other words, Howe’s proposal would provide a significantly lower level of legal protection for rights than is currently available under the ECHR/HRA.

In contrast, in a joint paper entitled ‘Unfinished Business’, Lord Faulks QC and Jonathan Fisher QC show little interest in working out the intricacies of how a UK Bill of Rights might be designed. Instead, they make it clear that, in their view, the function of any home-grown UK Bill of Rights would be to limit the influence of what they consider to be the ‘judicially activist’ European Court of Human Rights. Their paper cites a grab-bag of sources, including the Mail on Sunday letters column and some rather selectively interpreted judicial writings, to make the case that the case-law of the Strasbourg Court has diminished respect for human rights in the UK, and present the proposed Bill of Rights as a first step in altering this narrative.

A third and radically different perspective is provided by Lord Lester QC in a paper headed ‘A Personal Explanatory Note’. Lord Lester both defends the Strasbourg Court against its critic and argues that the HRA is ‘a well-drafted and subtle compromise respecting both Parliamentary sovereignty and the need for effective legal protection of fundamental rights’. In his view, a home-grown Bill of Rights would build upon the achievements of the HRA, by approaching European human rights law ‘through UK law rather than around UK law’ and rooting human rights protection in deep British constitutional soil.

In other words, the majority disagree sharply on the key questions on the purpose and function of any future UK Bill of Rights and its relationship with the ECHR system of rights protection. However, they nevertheless agree that a UK Bill of Rights would represent an improvement on the status quo, on the basis that it would have a better chance of attracting public ownership. This conclusion seems to be based on a considerable faith in the symbolic appeal of any such future Bill of Rights and its capacity to bridge the current sharp divide that exist between supporters and opponents of the current state of UK human rights law. As Baroness Kennedy and Philippe Sands point out in their powerfully-argued dissenting opinion, entitled ‘In Defence of Rights’, it is ‘difficult to imagine how agreement could be reached on the idea of a UK Bill of Rights, even in principle, when views are so polarised as to what such an instrument might contain’.[1] Furthermore, as I have argued elsewhere, it remains open to question whether a UK Bill of Rights could in fact resolve all the current controversies that surround human rights law.

In general, it is hard to avoid the impression that the Bill of Rights debate has moved on from when the Commission was initially established in March 2011. It seems to have served as a learning process through which Tory politicians and think-tanks in particular have identified what they consider to be the real enemy, namely the alleged judicial activism of the Strasbourg Court. This is graphically demonstrated by an article published in the Daily Telegraph by the Justice Secretary (and Lord Chancellor) Chris Grayling MP on the day that the Commission published its report, where he promised only to ‘read and digest’ the Commission’s report while making it clear that the real problem as he sees it with human rights law is that the Strasbourg Court ’has overstepped the mark’. Mark Elliott, David Feldman and myself writing on this blog have highlighted the potentially serious consequences of Grayling’s suggestion that ‘it is time to examine how to curtail the involvement of the European Court of Human Rights in UK domestic matters’. However, it is clear that the real debate is now focused upon the UK’s relationship with the ECHR, and not on whether a new UK Bill of Rights is necessary or desirable.

Colm O’Cinneide is a Reader in Law at University College London. 

Suggested citation: C. O’Cinneide ‘The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?’  UK Const. L. Blog (19th December 2012) (available at http://ukconstitutionallaw.org,

[1] Kennedy and Sands also make the important point that political and public attitudes towards the ECHR/HRA are not as uniformly antagonistic as the majority assume, especially when viewed from the perspective of the devolved regions.

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