The Bill of Rights Commission’s report

by Carl Gardner on December 18, 2012

The Commission on a Bill of Rights has delivered its report – entitled A UK Bill of Rights? – The Choice Before Us. Here’s a link to the report; and the report itself (volume 1, which is the substantive volume) is below.

The Commission is unsurprisingly divided, with a majority (seven, including Lord Lester) favouring a UK Bill of Rights and a minority (Baroness Kennedy and Philippe Sands QC) opposed at least at this stage. The only surprise here, perhaps, is that Lord Lester has joined the majority. He adds at page 231 of the report a “personal explanatory note” justifying his decision.

On the detail of what any Bill of Rights should contain, the report offers little; where it does provide recommendations, they are mostly for only mild tinkering with the status quo. The report for instance suggests that a Bill of Rights should be based on similar judicial mechanisms to those already in the Human Rights Act 1998, such as the “declaration of incompatibility” (paras. 12.24 and 12.25) and that (paras. 12.27 and 12.28) the rights should be made subject to responsibilities only in a declaratory, not a substantive, way.

To the extent that the Commission suggests innovations, they’re not all desirable. At para. 12.23 the Commission suggests any Bill of Rights should include

a number of rights relating to our civil and criminal justice system that have come under threat from short term political pressures under successive governments

but this recommendation is itself based on very conservative, short-term thinking. It runs counter to the instincts of many critics of human rights law, who believe in wide legislative sovereignty. It would entrench the status quo, and limit Parliament’s room for policymaking. It’s the sort of thinking that would have prevented the conviction of Gary Dobson.

This report is no great landmark in the history of human rights in this country. The Commission’s work has never commanded much confidence among lawyers or the public, and as it’s gone on the debate has moved beyond the “British Bill of Rights” idea. If David Cameron  and Nick Clegg try to take forward the majority’s view, they’ll waste time for no political gain.

The report may mark the end of a phase, begun in Gordon Brown’s time, in which politicians dreamed of some domestic legislative magic that could make the press learn to love the public’s “British rights” – or insulate the UK from Strasbourg.

I continue to predict no change to the Human Rights Act under this government.

{ 1 comment… read it below or add one }

1 AcademicLawyer December 21, 2012 at 14:53

So, whilst I agree with your prediction, what could this august Commission have come up with which might have delivered the dream of some of our politicians (and of course that bastion of Human Rights, the Daily Mail) to somehow disengage from the observance of human rights?

A Bill of Rights seems, to the majority of the Commission, to mean HRA Plus – which is not somehow what I think Mr Cameron, some of his followers and the Daily Mail had in mind!

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