Do the rights thing

Don't be put off by the Commission on a Bill of Rights, say Colin Harvey and Colm O'Cinneide - we must engage with it

June 30, 2011

Credit: Otto

Few people are aware that serious discussions about the future shape of the UK constitution are under way. An eight-member Commission on a Bill of Rights has begun to examine the future of individual rights protection in the UK. It has been given the onerous task of deciding whether the nation needs a new Bill of Rights to protect individual liberty.

This would in normal circumstances excite great attention: after all, Bills of Rights are usually very important documents. However, the establishment of the commission has attracted little attention and even less enthusiasm.

The reasons for this are not hard to see. There exists little if any public demand for a new Bill of Rights. The commission has been established primarily to placate critics of the Human Rights Act. The Act already protects individual rights and liberties by incorporating the European Convention on Human Rights. However, its right-wing critics have pressed for the Act to be replaced with a Bill of Rights that would better reflect their libertarian, anti-European and conservative values. As a result, many civil liberties campaigners fear that the commission will become a Trojan Horse, opening the way for the Act to be replaced by toothless substitute legislation.

The composition of the commission has also raised some eyebrows. Selected via a political deal, its membership is all white, and all male (with the exception of Baroness Helena Kennedy QC). It also seems to reflect a 50:50 split between rights advocates and sceptics, with leading experts in human rights law such as Lord Lester of Herne Hill QC and Philippe Sands QC, professor of international law at University College London, joining prominent critics of the Act. As a result, the commission may struggle to reach a consensus when it reports by the end of 2012.

Furthermore, little if any attention seems to have been paid to the Bill of Rights debate that has been going on in Northern Ireland for several years.

The Northern Ireland Human Rights Commission produced detailed advice in 2008 on whether the six counties should have a Bill of Rights separate and distinct from the rest of the UK. However, the new commission's terms of reference make no mention of this complex and important process, which has been largely ignored in London.

All this explains why supporters of human rights have tended to greet the establishment of the commission with dread and even hostility rather than enthusiasm. Many are reluctant to engage with the Bill of Rights debate at all, fearing that it may be used to undermine the Human Rights Act.

Nevertheless, we believe there are reasons to support focused and cautious engagement with the work of the commission. To begin with, its terms of reference make it clear that its task is to consider ways of building on the existing levels of rights protection afforded by the European Convention, not to dismantle this crucial safety net. This may make it possible to have an intelligent and inclusive debate about human rights free from distortion and hysteria.

Furthermore, the time is ripe for advocates for stronger human rights protection to make clear what a modern Bill of Rights worthy of the name would actually look like. That will involve dispelling some myths.

To start with, no credible Bill of Rights could possibly rewind the clock and go back to the pre-Act era. Instead, it would need to go further than the Act and draw on the full range of existing international human rights standards that the UK is committed to respecting, including socio-economic, children's and environmental rights. The contents of any Bill of Rights would also need to reflect the diverse constitutional and national traditions that coexist within the UK.

Discussing the contents of an ideal Bill of Rights may seem to be a futile exercise in the current political climate. However, rights advocates are well placed to demonstrate what a modern and credible Bill of Rights would look like. They should not run away when the commission comes calling, but instead should be prepared to sit down and have a serious conversation about the future shape and content of human rights in this constitutionally complex nation.

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