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Dos and don'ts for the bill of rights commission Dos and don'ts for the bill of rights commission
(35 minutes later)
Established in 2011 as a result of a Conservative-Liberal Democrat political compromise on the vexed issue of whether the Human Rights Act (HRA) should be repealed, the commission on a bill of rights will soon issue its final report. While it was deliberating, the coalition parties could have papered over their massive differences, but the end of year deadline is approaching, and playing for time will soon cease to be an option. All the political parties will have to respond to the commission's conclusions and decide whether they support a root and branch transformation of existing UK human rights law.Established in 2011 as a result of a Conservative-Liberal Democrat political compromise on the vexed issue of whether the Human Rights Act (HRA) should be repealed, the commission on a bill of rights will soon issue its final report. While it was deliberating, the coalition parties could have papered over their massive differences, but the end of year deadline is approaching, and playing for time will soon cease to be an option. All the political parties will have to respond to the commission's conclusions and decide whether they support a root and branch transformation of existing UK human rights law.
Aside from the passing media excitement when one of the commissionners, Michael Pinto-Duschinsky, resigned, the commission's work has struggled to attract popular interest. The respectable level of response it received from civil society organisations in response to its consultation suggests there is appetite for discussion about the future direction of UK human rights law. In the spirit of salvaging something from this problematic exercise, we offer some suggestions for the commission.Aside from the passing media excitement when one of the commissionners, Michael Pinto-Duschinsky, resigned, the commission's work has struggled to attract popular interest. The respectable level of response it received from civil society organisations in response to its consultation suggests there is appetite for discussion about the future direction of UK human rights law. In the spirit of salvaging something from this problematic exercise, we offer some suggestions for the commission.
1. Do no harm1. Do no harm
Do not recommend any dilution of existing legal protection for human rights, or propose anything that would damage the established framework of international human rights law – including the provisions of the European Convention of Human Rights (ECHR). Aim to build on existing achievements, not sabotage them or try to reinvent the wheel.Do not recommend any dilution of existing legal protection for human rights, or propose anything that would damage the established framework of international human rights law – including the provisions of the European Convention of Human Rights (ECHR). Aim to build on existing achievements, not sabotage them or try to reinvent the wheel.
2. Acknowledge the limitations2. Acknowledge the limitations
The commission has nine members, all of whom were nominated by the coalition parties. Only one commissioner is a woman, and in general its membership is completely unrepresentative of the population of the UK. Its members have little expertise when it comes to the devolved regions. As a result, the acknowledge that expertise and legitimacy are limited. Openness, humility and sensitivity towards the devolved regions in the constitutionally diverse UK should be key themes of the final report. The commission has nine members, all of whom were nominated by the coalition parties. Only one commissioner is a woman, and in general its membership is completely unrepresentative of the population of the UK. Its members have little expertise when it comes to the devolved regions. As a result, acknowledge that expertise and legitimacy are limited. Openness, humility and sensitivity towards the devolved regions in the constitutionally diverse UK should be key themes of the final report.
3. Try to identify areas of agreement and disagreement3. Try to identify areas of agreement and disagreement
There is a danger that the commission's final report will be ignored or dismissed amid the hysteria that often passes for political debate about human rights. Think carefully about how to present conclusions. Are there areas of principled consensus or broad agreement between all commissioners? Can any agreed misunderstandings and myths about human rights be challenged? Dissent is healthy in democratic life, and there is likely to be some division of views.There is a danger that the commission's final report will be ignored or dismissed amid the hysteria that often passes for political debate about human rights. Think carefully about how to present conclusions. Are there areas of principled consensus or broad agreement between all commissioners? Can any agreed misunderstandings and myths about human rights be challenged? Dissent is healthy in democratic life, and there is likely to be some division of views.
If this is the case, identify clearly what unites - and divides - members. Do not attempt to find a consensus where none exists – however, identify key points of difference and to explain what is at stake. This will lend credibility, and help to ensure that the political parties will not just help themselves to what they like from the report and leave the rest behind. If this is the case, identify clearly what unites - and divides - members. Do not attempt to find a consensus where none exists – however, identify key points of difference and explain what is at stake. This will lend credibility, and help to ensure that the political parties will not just help themselves to what they like from the report and leave the rest behind.
4. Define how the debate should be taken forward4. Define how the debate should be taken forward
Sketch how the debate on human rights law could be developed and deepened after the report. Perhaps discussions about the HRA and the ECHR need to be integrated into a wider constitutional conversation about the place of the UK and the devolved regions within Europe? A case could be made for a wider consultation process to take place, involving a much greater level of informed public participation than has happened so far.Sketch how the debate on human rights law could be developed and deepened after the report. Perhaps discussions about the HRA and the ECHR need to be integrated into a wider constitutional conversation about the place of the UK and the devolved regions within Europe? A case could be made for a wider consultation process to take place, involving a much greater level of informed public participation than has happened so far.
Serious consideration also needs to be given to how to bring the perspective of NGOs and other representatives of civil society into the discussion, along with the views of international human rights bodies. Thus far, much of the debate on the HRA and ECHR has been dominated by tabloid sloganeering and political grandstanding – give some consideration as to how to generate a genuinely engaged and well-informed public discussion about human rights.Serious consideration also needs to be given to how to bring the perspective of NGOs and other representatives of civil society into the discussion, along with the views of international human rights bodies. Thus far, much of the debate on the HRA and ECHR has been dominated by tabloid sloganeering and political grandstanding – give some consideration as to how to generate a genuinely engaged and well-informed public discussion about human rights.
5. Recognise the reality of devolution5. Recognise the reality of devolution
The UK is no longer a unitary state where political life is dominated by deals struck in the corridors of Westminster. The devolved regions are self-governing in many important areas of law and policy. Furthermore, both the HRA and the ECHR are deeply rooted in the framework of devolved governance. The Belfast Agreement requires that the ECHR forms part of UK law as it applies to Northern Ireland, while the process of drawing up a bill of rights for Northern Ireland has been ongoing there for the last decade.The UK is no longer a unitary state where political life is dominated by deals struck in the corridors of Westminster. The devolved regions are self-governing in many important areas of law and policy. Furthermore, both the HRA and the ECHR are deeply rooted in the framework of devolved governance. The Belfast Agreement requires that the ECHR forms part of UK law as it applies to Northern Ireland, while the process of drawing up a bill of rights for Northern Ireland has been ongoing there for the last decade.
In Scotland, the courts can strike down legislation enacted by the Scottish Parliament which fails to respect Convention rights. As a result, any attempt to repeal or amend the HRA will require major changes to be made to the Scotland Act 1998, which will be controversial given the forthcoming independence referendum. Recognise the constitutional diversity of the UK, and refrain from recommending anything that would put a spanner in the complex workings of devolution. Furthermore, why not recommend the UK government launch a determined drive to complete the process of securing a bill of rights for Northern Ireland, as envisaged by the Belfast Agreement. Work on such a bill is well advanced — why delay further?In Scotland, the courts can strike down legislation enacted by the Scottish Parliament which fails to respect Convention rights. As a result, any attempt to repeal or amend the HRA will require major changes to be made to the Scotland Act 1998, which will be controversial given the forthcoming independence referendum. Recognise the constitutional diversity of the UK, and refrain from recommending anything that would put a spanner in the complex workings of devolution. Furthermore, why not recommend the UK government launch a determined drive to complete the process of securing a bill of rights for Northern Ireland, as envisaged by the Belfast Agreement. Work on such a bill is well advanced — why delay further?
We do not underestimate the difficult task that faces the commission. They are in a tricky position. In many ways they are being asked to do the impossible by finding a way of reconciling dramatically different views on whether the UK needs a new bill of rights. Som have already dismissed the commission's as an elaborate exercise in kicking a difficult issue into the long grass. However, it could yet make a constructive contribution to the debate over human rights in the UK, if it treads cautiously and avoids damaging the fragile constitutional fabric state of human rights law in the UK. We do not underestimate the difficult task that faces the commission. They are in a tricky position. In many ways they are being asked to do the impossible by finding a way of reconciling dramatically different views on whether the UK needs a new bill of rights. Some have already dismissed the commission as an elaborate exercise in kicking a difficult issue into the long grass. However, it could yet make a constructive contribution to the debate over human rights in the UK, if it treads cautiously and avoids damaging the fragile constitutional fabric of human rights law in the UK.