This week’s report from the Commission on a Bill of Rights was entitled ‘The Choice Before Us’. In framing that choice, a majority of the Commission concluded that, ‘on balance, there is a strong argument in favour of a UK Bill of Rights’. In this post, I explore and test that ‘strong argument’ as it is developed in the Commission’s report. I ask whether the argument developed in the report is as strong as the majority might like us to believe.

The report does not articulate its ‘strong argument’ in a particularly pithy way  (perhaps this is a result of the fractured nature of the Commission’s report – there are minority views on particular points as well as separately-explained-but-concurring majority opinions, and a series of additional opinion papers). Instead, a series of constituent sub-arguments appear to form the central ‘strong argument’ spoken of by the majority. It is to these sub-arguments that I turn. In doing so I draw on the Overview and the substantive section of the report.

The majority begin by noting that ‘the other 46 signatory states to the European Convention on Human Rights generally have their own written constitution, their own national bill of rights written in their own words or both’. This observation, the majority states, would only be ‘a piece of academic curiosity, if there were widespread public acceptance of the legitimacy of our current human rights structures’. At this point we might pause briefly to wonder whether the Commission inquired into the levels of ‘widespread public acceptance’ of human rights structures in the other 46 states (the lengthy comparative sections in Chapter 5 certainly give no detailed consideration to levels of ‘public acceptance’ in other comparable jurisdictions). Without such consideration, the Commission’s sub-argument in this regard risks confusing the existence of national bills of rights with the widespread public acceptance of those bills of rights.

The report develops its concern about public acceptance by holding that ‘there is a lack of public understanding and “ownership” of the Human Rights Act’ and of the European Convention on Human Rights. The ownership argument appears to be twofold. First, the majority report concludes that there is a lack of understanding about the current human rights arrangements. Second, there is the suggestion that the current arrangements are ‘widely regarded by the public as “foreign” or European’.

Some might think that concerns about ‘lack of understanding’ and ‘regard’ could be addressed by improving understanding about existing arrangements rather than by far-reaching constitutional reform. Not the majority. Those members of the commission found it ‘hard to persuade themselves that public perceptions are likely to change in any substantial way as a result [of better public education and understanding], particularly given the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media’.

Instead of education, therefore, the majority issues a carefully-caveated call for a new British Bill of Rights incorporating and building ‘on all of the UK’s obligations under the European Convention on Human Rights’. Here we must pause again to consider the Commission’s logic: the problem, as identified by the Commission, is poisoned public understanding in a politicised and polemical environment. The Commission does not think a public education campaign about the existing system can overcome such politicisation, but is nonetheless apparently confident that ‘some commentators and some sections of the media’ will restrain their polemicism when it comes to a new structure built on and incorporating the old structure. A triumph of hope over experience?

Naturally the notion of a Bill of Rights built on and incorporating existing rights leaves plenty of room for ambiguity. The Commission, for example, suggests that a Bill of Rights might ‘define more clearly the scope of some rights and adjust the balance between different rights’. One wonders if such definition and adjustment could easily be done consistently with the UK’s obligations in Strasbourg. We might also wonder whether the apparent concerns about ‘Europeanness’ and ‘foreignness’ would truly be addressed by a new structure built on and incorporating the existing relationship with Strasbourg. (The separate opinion of Lord Faulks QC and Jonathan Fisher QC develops the sceptics’ arguments).

The majority also suggests that, while any Bill of Rights ‘should have at its core the rights currently in the European Convention’, the language of the Bill need not be ‘identical’ to that of the Convention. Instead, the Bill of Rights could be ‘written in language which reflected the distinctive history and heritage of the countries within the United Kingdom’. If the Commission is right and the public discourse is so politicised and polemical that the public cannot be educated about the existing system, we might wonder about the extent to which the public can be educated about the details of the language of a proposed Bill of Rights. Moreover, it is admirably optimistic for any group of lawyers to argue that two differently-drafted sets of rights could be practically identical in effect. Either the two sets of rights are different, in which case the UK risks placing itself in contravention of the UK’s obligations in Strasbourg (which may or may not be a problem, but is something which must be honestly confronted), or the two sets of rights are identical, and the British people would be being sold the same old rights in different clothing (one might wonder what the ‘polemical’ commentators and media analysts might make of such a manoeuvre).

The Commission is careful to identify reasons to proceed slowly and respectfully of existing constitutional arrangements. But if there is indeed ‘a choice before us’, the future of human rights protection in the UK deserves open and honest discussion of the alternatives, and the arguments for and against major constitutional change. Unfortunately, as the Commission itself notes seemingly without irony, ‘it is not always easy to disentangle…what are tactical positions rather than fundamental beliefs’.

There may be an argument made in the majority’s report. But is it a strong argument?

 

Ryan Goss is a Junior Research Fellow in Law, Lincoln College, Oxford

Suggested citation: R. Goss, ‘What is the Bill of Rights Commission’s ‘strong argument’?’   UK Const. L. Blog (20th December 2012) (available at http://ukconstitutionallaw.org,