19/01/13

Q1: What do you think would be the advantages or disadvantages of a UK Bill of Rights? Do you think that there are alternatives to either our existing arrangements or to a UK Bill of Rights that would achieve the same benefits? If you think that there are disadvantages to a UK Bill of Rights, do you think that the benefits outweigh them? Whether or not you favour a UK Bill of Rights, do you think that the Human Rights Act ought to be retained or repealed?

A.: The present arrangements are related to the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights). Since the United Kingdom signed up to the European Convention on Human Rights, it is obliged to comply with it and with the rulings that are made by the European Court of Human Rights. In order to make rights more accessible to private individuals, the rights enshrined in the European Convention have been incorporated into British law by way of the Human Rights Act 1998. These arrangements may have to be reviewed if a UK Bill of Rights is introduced.

The different possible options, as we see them, are as follows:
1. Maintain the present arrangements: adherence to the European Convention on Human Rights, retain the Human Rights Act 1998 and abstain from introducing a UK Bill of Rights;
2. Revert to the situation preceding the introduction of the Human Rights Act 1998, repeal the Human Rights Act 1998 and maintain the adherence to the European Convention on Human Rights;
3. Retain both adherence to the European Convention and to the Human Rights Act 1998 with the addition of a complementary UK Bill of Rights;
4. Retain the adherence to the European Convention, repeal the Human Rights Act 1998 and introduce a comprehensive UK Bill of Rights that would cover the rights included in the Human Rights Act 1998 along with additional rights;
5. Denounce the European Convention for the Protection of Human Rights and Fundamental Freedoms, repeal the Human Rights Act 1998 and introduce a comprehensive UK Bill of Rights based on the long established and successful British tradition of promotion and preservation of human rights and fundamental freedoms.

If the Human Rights Act was to be repealed, it would not significantly change the present situation, since in any case the United Kingdom would have to conform to the European Convention on Human Rights and the interpretation given to it by the European Court of Human Rights. In order to maintain the present arrangements while at the same time introducing additional rights to those included in the Human Rights Act 1998 a comprehensive UK Bill of Rights could be adopted.

Another approach may also be suggested, which would both relieve the UK from having to abide by the European Court of Human Rights’ judgments and give the courts in the United Kingdom the freedom to have regard to relevant case law from other international courts and in particular other common law countries.

If the United Kingdom was to denounce the European Convention it could adopt a comprehensive UK Bill of Rights in line with the well-established British tradition of producing enduring bills and declarations of rights. This would require an in-depth examination of the rights that are most beneficial to the British people, based on the Judeo-Christian heritage that constitutes the foundation of the unwritten British constitution and its laws. The Bill of Rights would comprise key fundamental principles that would apply equally to England, Northern Ireland, Scotland and Wales.

Q2: In considering the arguments for and against a UK Bill of Rights, to what extent do you believe that the European Convention on Human Rights should or should not remain incorporated into our domestic law?

A.: There may be some benefit in reminding ourselves that the European Convention was written after the Second World War for the purpose of preventing the resurgence of Nazism or any form of Fascism in continental Europe. The United Kingdom had stood as a bulwark to withstand and defeat Nazism and with its allies bring freedom and democracy to occupied Europe. There was no imperative for the United Kingdom to subscribe to the European Convention, nor to have it incorporated into its domestic law.

Although the letter of the Convention could be seen to be acceptable, its interpretation is constantly evolving under the influence of the European Court, which sees it as a living instrument. As a result its interpretation is a reflection of what is common practice in the various European countries that have subscribed to it, without reference to any doctrinal foundation.

If there was to be a comprehensive UK Bill of Rights the best option would be for the United Kingdom to denounce the European Convention and consequently repeal the Human Rights Act 1998.

Q3: If there were to be a UK Bill of Rights, should it replace or sit alongside the Human Rights Act 1998?

A.: If there were to be a UK Bill of Rights it would be better to have one legal instrument rather than two. Depending on whether or not the United Kingdom would be prepared to denounce the European Convention, there could be two possible scenarios.

If the United Kingdom does not denounce the European Convention, the mechanism implemented in the Human Rights Act 1998 could be included in the UK Bill of Rights for the rights mentioned in the European Convention.

If a comprehensive UK Bill of Rights was created, it should be associated with the denunciation of the European Convention. In this case the Human Rights Act 1998 would no longer be required. This will allow the United Kingdom to develop its own interpretation of rights and fundamental freedoms on the basis of its Judeo-Christian heritage, without interference from the European Court of Human Rights.

Q4: Should the rights and freedoms in any UK Bill of Rights be expressed in the same or different language from that currently used in the Human Rights Act and the European Convention on Human Rights? If different, in what ways should the rights and freedoms be differently expressed?

A.: If a UK Bill of Rights was to be developed as the sole human rights instrument for the whole of the British nation, the terms used should reflect the principles and concepts that have been developed in common law and in line with those used in former British bills of rights and declarations.

Q5: What advantages or disadvantages do you think there would be, if any, if the rights and freedoms in any UK Bill of Rights were expressed in different language from that used in the European Convention on Human Rights and the Human Rights Act 1998?

A.: The advantage of using terms that are in line with British principles and concepts developed through common law is that of promoting its own interpretation of the rights and freedoms based on its unique and exemplary history, tradition and Judeo-Christian heritage. The terms used in the European Convention were satisfactory at the time the Convention was written after the Second World War, but as a result of the ever-evolving interpretation given by the European Court of Human Rights, the meaning of the words used in the Convention has changed regularly. The use of appropriate terms would enable the United Kingdom to recover the freedom to provide and develop its own interpretation of rights and fundamental freedoms.

Q6: Do you think any UK Bill of Rights should include additional rights and, if so, which? Do you have views on the possible wording of such additional rights as you believe should be included in any UK Bill of Rights?

A.: The UK Bill of Rights should take into consideration experiences of the violation of human rights that have occurred in certain parts of the United Kingdom, such as Northern Ireland, in order to introduce additional rights that would benefit the whole of the people of the United Kingdom.

Among these rights are particularly the right to equality and the rights of victims of terrorism.

The right to equality

There are already a number of rights and procedures in this domain that have been implemented and enforced in UK legislation. An impartial analysis of past events and historical developments needs to be carried out and taken into account before deciding what particular rights need to be added. This should be corroborated by accurate evaluations in order to identify whether or not there have been genuine inequality issues in the past that need to be addressed in the Bill of Rights or through legislation.

Equality should be considered within the context of the most particular circumstance of United Kingdom society, for example terrorism and its effects on society. In a democratic society, a terrorist and/or a supporter of terrorism cannot claim the enjoyment of equal rights with law-abiding citizens in the areas of economic, social, political, cultural or civil life. Necessary and proportionate restrictions would have to be applied to a terrorist’s / supporter’s activities in order to prevent him / her from engaging in and committing acts of terrorism. This should be part of the necessary protective mechanisms that need to be enforced in the United Kingdom to protect law-abiding people against terrorism.

Equality provisions should be related to the rights enumerated in the UK Bill of Rights without having to rely on free-standing equality provision. Due to particular circumstances with which British society is confronted, such as terrorism, a free-standing equality provision would have the adverse effect of rendering the fight against terrorism less efficient since such provision could be used by terrorists and their supporters to their advantage, thus undermining democracy and human rights.

If new grounds preventing discrimination on the basis of identity, ethos and culture for example were deemed necessary, it should then be specified that they would exclude any direct or indirect reference to terrorist violence and any doctrine, idea or opinion that supports or promotes terrorism in any way. The public authorities’ duty to promote equality of opportunity could then be extended to cultural groups.

The rights of victims of terrorism

The right for innocent victims to have all deaths related to terrorist attack investigated is relevant for the whole of the United Kingdom.

In all cases of deprivation of life by terrorist attacks, innocent victims should be given the right to have a full investigation carried out using all the most up-to-date technologies and procedures in order to find those responsible for committing such crimes.

The right to benefit from an investigation should always allow the possibility to prosecute those suspected of being responsible, when there is sufficient evidence.

Q7: What in your view would be the advantages, disadvantages or challenges of the inclusion of such additional rights?

A.: The development of human rights has been widely perceived in the United Kingdom as being in favour of those who support unethical practices and oppose democracy. For example it is undeniable that to the present day those who have benefited most of the European Convention during the campaign of terrorism in the United Kingdom, mainly in Northern Ireland, have been terrorists and their families. Out of the hundreds of innocent victims of terrorism that were killed, maimed or injured in the United Kingdom there is not one case that has been successful before the European Court of Human Rights, while many cases brought by terrorists and/or their families before the same Court have resulted in condemnations of the United Kingdom of Great Britain and Northern Ireland.

Human rights and the European Convention in particular have been used as a means of undermining the authority of the State and of weakening law enforcement agencies, particularly the security forces. For this reason, an overwhelming majority of people within the community in Northern Ireland have little respect for European human rights law and the benefit it could bring to them.

The emphasis in the future UK Bill of Rights should be placed on a horizontal approach to human rights and fundamental freedoms. Additional rights should be introduced to make human rights effective for law-abiding people against non-state actors who have the potential to destroy the rights of others and to undermine democracy.

Q8: Should any UK Bill of Rights seek to give guidance to our courts on the balance to be struck between qualified and competing Convention rights? If so, in what way?

A.: If the United Kingdom is to maintain its adherence to the European Convention, it would be useful for the UK Bill of Rights to seek to give guidance as to the interpretation that should be given to the application of qualified and competing rights. First, it would have the positive effect of reinforcing a British interpretation of qualified rights. Secondly, it may to some extent restrain the European Court of Human Rights in its interpretation of rights and freedoms.

Q9: Presuming any UK Bill of Rights contained a duty on public authorities similar to that in section 6 of the Human Rights Act 1998, is there a need to amend the definition of ‘public authority’? If so, how?

A.: No.

Q10: Should there be a role for responsibilities in any UK Bill of Rights? If so, in which of the ways set out above might it be included?

A.: Yes, there should be a role for responsibilities in any UK Bill of Rights. A Bill of Rights should include a mechanism that would protect the rights and freedoms included in the Bill to the benefit of law-abiding people.

There should be a stated principle guaranteeing that the rights and freedoms mentioned cannot be misused or abused in order for anybody or any organization to seek to destroy the rights and freedoms of others and undermine democracy.

The intention and actions of those who claim to have their human rights violated should be taken into account by the public authority making a decision that would imply the application of human rights.

Q11: Should the duty on courts to take relevant Strasbourg case law ‘into account’ be maintained or modified? If modified, how and with what aim?

A.: The requirement to “take into account” relevant judgments of the European Court was imposed on the courts in the United Kingdom, mainly as a result of the UK having signed up to the European Convention on Human Rights.

If the United Kingdom was to denounce the European Convention it could release the courts from having to take relevant judgments of the European Court into account. As a result the courts in the United Kingdom could have an equal regard for any relevant case law, particularly from other common law countries, as for the case of other international human rights courts, including the European Court of Human Rights.

Q12: Should any UK Bill of Rights seek to change the balance currently set out under the Human Rights Act between the courts and Parliament?

A.: The balance set out under the Human Rights Act 1998 is respectful of the key principle according to which Parliament is sovereign. Any UK Bill of Rights would have to abide by the same principle.

Q13: To what extent should current constitutional and political circumstances in Northern Ireland, Scotland, Wales and/or the UK as a whole be a factor in deciding whether (i) to maintain existing arrangements on the protection of human rights in the UK, or (ii) to introduce a UK Bill of Rights in some form?

A.: Although the United Kingdom consists of four different entities, England, Northern Ireland, Scotland and Wales, the unity of the British nation must be maintained.

Constitutional and political circumstances in different parts of the United Kingdom should not be seen as an impediment to the introduction of a UK Bill of Rights, since it will preserve the unity of the nation and reinforce it.

Fundamental rights will be enshrined in the UK Bill of Rights that will be applied within the framework of any existing or new constitutional arrangements.

Q14: What are your views on the possible models outlined in paragraphs 80-81 above for a UK Bill of Rights?

A.: Of the two models suggested the second one is preferred. A UK Bill of Rights should be prepared and voted in Westminster legislation and most of the rights should have UK-wide application. Only limited additional rights should be introduced in relation to Northern Ireland, Scotland and Wales.

Q15: Do you have any other views on whether, and if so, how any UK Bill of Rights should be formulated to take account of the position in Northern Ireland, Scotland or Wales?

A.: A UK Bill of Rights could set out fundamental rights and freedoms which would apply to the whole of the United Kingdom, as is the case at present with the Human Rights Act 1998.

Additional rights in respect of Northern Ireland, Scotland and Wales could be contained in the comprehensive UK Bill of Rights.

Such a UK Bill of Rights would have the advantage of making one common piece of legislation with the required flexibility for being adapted to the particular circumstances of the various territories constituting the United Kingdom of Great Britain and Northern Ireland.