Tom Hickman: The Bill of Rights Commission and the How Question

Has anybody else noticed that the Bill of Rights Commission’s consultation is missing a question? In its consultation, which closes on 11 November 2011, the Commission first asks whether we need a Bill of Rights. No problem there. But its second question is, if so, “what do you think a Bill of Rights should contain?” As it happens, the same questions were asked by the Joint Committee on Human Rights in its call for evidence in 2007, reflecting orthodox thinking about constitutional reform: do we need it and if so what should the legislation say? But the most important question is left unasked.

The question is: how do you think a Bill of Rights should be introduced?

The reason why the Commission is embarking on this project—and unlike some I don’t believe that it is necessarily a long-grass exercise which is not intended to result in any actual constitutional reform—is because the ‘how question’ has not been properly asked or answered in the past. The Human Rights Act lacks legitimacy precisely because it was brought about by a legal and political elite through the ordinary Parliamentary process.

The lack of serious concern for process in constitution-making in the UK is a reflection of the degree to which the sovereignty of the Westminster Parliament dominates thinking both consciously and unconsciously. But such thinking is out of place when it comes to a Bill of Rights. This is because all the good reasons for having a Bill of Rights relate not to the ‘what question’ but to the ‘how question’.  There are not in truth many improvements that can be made either to the catalogue of rights contained in the Human Rights Act or to the mechanism by which the Act brings them in to force; and insofar as improvements of this sort might be made, they could be made by amending the Human Rights Act. [1]

The really good reasons for having a Bill of Rights relate to the need to give the wider population a sense of ownership of the measure and to make good use of the opportunity for uniting, educating and engaging the population in and around our shared constitution.   How one achieves this is the really important and difficult question. Yet once again, it is most likely to be the question that is not adequately addressed or answered. The Joint Committee on Human Rights, for instance, concluded its examination by setting out what the Bill of Rights ought to contain and suggesting its enactment should be preceded by a six (possibly twelve) month period of “consultation”. It did not take seriously enough the inclusive national project that is required to consider the Bill of Rights and what it should say.

To do this properly will be a major national undertaking, particularly given the amount of catching-up to be done. Most school leavers have little idea of even the rudiments of our legal system and one is lucky if even first term law students with fistfuls of straight A*s can tell you what the highest court is or whether a contract has to be written or not (I will be glad to be contradicted).

The members of the Commission are certainly well aware of the need to engage the public as well as of their own lack of diversity. Speaking at the marvellous Public Law Project Annual judicial review conference last Thursday, Lord Lester QC referred to the dispiriting number of white, senior, QCs on the panel (the comma before QCs is advisedly placed); although, as he pointed out, that is hardly their fault.

One member of the audience objected. The Commission was at least responsible for the inadequate form that the consultation process has taken, noting that it consists entirely of a posting on the Ministry of Justice website which is likely to provoke responses only from the usual suspects of already-engaged lawyers and NGOs. Quite right. The Commission’s consultation process would not pass muster applying principles of good consultation and falls even further short of what is required if it is held up as part of the civic engagement that ought to proceed the enactment of a Bill of Rights.

Unfazed as ever, Lord Lester pointed out that the consultation is only the first stage and painted the picture of the Commission led by Baroness Kennedy tramping up and down the country visiting schools and community centres. Welcome and interesting as that will be, it is regrettable that the Commission hasn’t specifically asked consultees what sort of process it, and the politicians that follow it, should be engaging in. This is an issue on which imaginative thinking is urgently needed. Readers of this blog have a few weeks left to provide their thoughts.


Tom Hickman is a barrister at Blackstone Chambers.

[1] Perhaps the only one that really justifies a Bill of Rights would be the introduction of a strike-down power, but this is hardly likely to be contained in a Bill of Rights in the current political climate in any event. For discussion of the reasons for having a Bill of Rights see Public Law After the Human Rights Act (Hart 2010) Chapter 1.