Submission to the Commission on a Bill of Rights Second Consultation

The Scottish Human Rights Commission30 September 2012

The Scottish Human Rights Commission is a statutory body created by the Scottish Commission for Human Rights Act 2006. The Commission is a national human rights institution (NHRI) and is accredited with ‘A’ status by the International Co-ordinating Committee of NHRIs at the United Nations. The Commission is the Chair of the European Group of NHRIs and it is also a representative of Scotland on the Advisory Panel to the Commission on a Bill of Rights. The Commission has general functions, including promoting human rights in Scotland, in particular to encourage best practice; monitoring of law policies and practices; conducting inquiries into the policies and practices of Scottish public authorities; intervening in civil proceedings and providing guidance, information and education.

1. Introduction The Scottish Human Rights Commission (SHRC) welcomes this opportunity to submit further evidence to the Commission on a Bill of Rights on their “Second Consultation.” SHRC highlights here the relevant human rights standards in the context of a number of questions of the consultation document and a Bill of Rights process.

SHRC believes that there is a need to retain the Human Rights Act 1998 (HRA). Evidence suggests that the HRA has substantially improved protection and enjoyment of human rights for everyone in the United Kingdom of Great Britain and Northern Ireland.1 SHRC considers that each of the implementation and enforcement mechanisms within the HRA and contained in the devolution statute2

are essential and must be retained. In this context, it is important to bear in mind the primary responsibility of State Parties for the

1 Review of the Implementation of the Human Rights Act. Department of Constitutional Affairs. 2006, available at http://www.justice.gov.uk/guidance/docs/full_review.pdf; also Analysis of the impact of the Human Rights Act produced by the Ministry of Justice and Joint Committee on Human Rights in 2007. The HRA has led to better policy outcomes by promoting greater personalisation in public services and ensuring consideration of the different groups in society.2 Scotland Act 1998

effective implementation of the European Convention on Human Rights (ECHR) and ensuring full compliance at policy and legislative level as agreed by the Parties in the Brighton Declaration (April 2012).

SHRC is of the view that the existing HRA mechanisms to enhance the implementation and enforcement of Convention rights (i.e. statements of compatibility; requirements to interpret primary and secondary legislation compatibly with Convention rights; courts’ obligation to take into account Strasbourg jurisprudence; declarations of incompatibility; remedial orders; and the duty on public authorities to comply with Convention rights) are vital for the successful operation of the Act in the UK.

SHRC considers that in order to achieve sufficient guarantees of the respect, protection and fulfillment of all human rights, the incorporation of all of the UK’s international human rights obligations into domestic law is required. Human rights are universal, interdependent and intrinsic to all human beings. Together economic, social, cultural and civil and political rights are the foundation of a free and just society where every human being is entitled to fundamental rights simply because they are human. Both are indispensable for the full development of the human personality and a sense of dignity.

SHRC continues to be concerned that the current political climate presents singularly unfavourable conditions to discuss a UK Bill of Rights. There are significant misconceptions about the value of the HRA among the media, public authorities and the general public. SHRC believes that these misconceptions are not the product of an ‘ambiguous jargon’ or imbalances in the HRA, but the lack of understanding of whom it protects, how it works, the limits of its application and its benefits for wider society. SHRC considers that the Commission plays an important role here in line with its terms of reference, in particular regarding the ways to promote a better understanding of the true scope of the obligations under the European Convention on Human Rights. SHRC feels that much more needs to be done and can be done to inform the public of the real benefits of the HRA and how it works as well as promoting increased public ownership.

Finally, SHRC emphasises the importance of the development of national action plans on human rights to heighten awareness of human rights issues, promote co-ordination of human rights activities (particularly within the national administration) and measure progress over time.

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?

SHRC considers that the protections set out in the HRA are the minimum in terms of the human rights standards. Any legislative change to the HRA should either incorporate additional human rights or further entrench the protections provided by it.

It is unclear as to what exactly is meant by a UK Bill of Rights and how it would be different from a normal Act of Parliament such as the HRA. In the current context, therefore, it is difficult to discuss advantages or disadvantages of a UK Bill of Rights (as we do not have a model for it). What we already have, in the UK, is an Act of Parliament (HRA) that incorporates the ECHR into domestic law, while keeping with British constitutional traditions. Therefore, any reference should be made in relation to the HRA. In this respect three points are relevant:

a) The HRA has played a significant role in improving the protection of human rights in the UK by protecting civil and political rights as well as promoting greater personalisation in the delivery of public services and ensuring consideration of the different groups in society.3

b) The HRA preserves parliamentary sovereignty4 while protecting the rights of every human being in this country or under UK control.

c) The HRA is an essential pillar of the constitutional framework of devolution in Scotland, Wales and Northern Ireland.

The European Convention on Human Rights (ECHR) is coupled with and rooted in the Scotland Act 1998 (and the other devolution statutes). The Scotland Act provides that the Scottish Government and Parliament have no competence to act in any manner that is contrary to the ‘Convention rights’. As expressed before, one of the greatest strengths of the HRA is that it is both a universal and British document, which considers the sensitive devolution settlements of the UK.5 Any review of the current implementation of the HRA must necessarily consider the experience of Scotland, Wales and Northern Ireland (See question 13 below).

Q2: In considering the arguments for and against a UK Bill of Rights, to what extent do you believe that the European 3 Footnote No. 1.4 A and others v Secretary of State for the Home Department [2004] UKHL 565 See SHRC submission to the Commission on a Bill of Rights, SHRC 11 November 2011. available at www.shrc.com

Convention on Human Rights should or should not remain incorporated into our domestic law?

SHRC observes that while human rights protections in the UK have been developed over many centuries, through common law and statute, the incorporation of the ECHR significantly supplemented the effective realisation of civil and political rights domestically. In addition, by incorporating the ECHR into the UK domestic law, individuals attained a right to seek remedy for a breach of Convention rights in national courts as well as the right to bring a direct claim.6 The point of incorporating the rights in the ECHR into UK law was to allow domestic courts to rule on their application and interpretation in the manner of a Bill of Rights, rather than applicants having to go to the European Court of Human Rights (ECtHR) in Strasbourg to claim a breach of their rights.7 Prior to ECHR incorporation into UK legislation, individuals within the UK jurisdiction could only seek remedies at the ECtHR. Domestic courts play a key role not only by taking into account the ECtHR jurisprudence, but by developing the corpus of law in the UK.8

SHRC considers that the ECHR should remain incorporated into our domestic law and that it would be regressive to remove the right of individuals in the UK to seek redress for alleged breaches of their Convention rights directly in UK courts.

Moreover, it is important to note that the UK Government has made clear that a UK Bill of Rights, if enacted, would incorporate and build on the Convention rights, and that the Convention rights will continue to be enshrined in UK law.9 SHRC understands that the Commission’s terms of reference explicitly exclude this type of question from the Commission’s remit:

“...to explore the creation of a UK Bill of Rights that incorporates and builds on all UK obligations under the European Convention on Human Rights.”

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

SHRC’s position is that the Human Rights Act 1998 should be retained and should build on the current UK international human rights obligations. The Commission has a unique opportunity to call

6 Note that there is a vast literature on the benefits of ECHR incorporation into UK law.7 Klug, F. and Wildbore, H. (2011) Commission on a Bill of Rights Discussion Paper: ‘Do We Need a UK Bill of Rights? LSE.8 The subsidiary character of Strasburg machinery is articulated in Articles 13 and 35 (1) of the Convention and also has been confirmed by the Interlaken Declaration.9 See for example; Report of the United Kingdom to the Committee of Ministers of the Council of Europe on the implementation at national level of the Interlaken and Izmir Declarations, December 2011.

on the UK government to incorporate into domestic law the full range of human rights guaranteed by international conventions to which the UK is a party. The UK has ratified a wide range of international human rights treaties that create a number of international obligations. However, it has failed to incorporate this broader range of human rights into our domestic legal systems, including but not limited to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the UN Convention on the Rights of the Child (CRC) and the UN Convention on the Rights of Persons with Disabilities (CRPD).10 Evidence suggests that a large number of people in the UK will strongly welcome ESCR.11

In a devolution context, it is important that any additional Bill of Rights continues to apply equally to all people in the UK. There is a risk that different systems of protection, for example, where the HRA remains in place in some of the devolved nations, but not the rest of the UK, will create legal uncertainty and inconsistency. SHRC strongly argues for maintaining the current level of protection afforded by the HRA, including procedural and enforcement. It would be a highly regressive measure to remove those protections or reduce the accountability of the executive (including public authorities) and legislature to the courts.

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?,

Both the UK Parliament and Scottish Parliament should build on the HRA by the inclusion of legally enforceable socio-economic and cultural rights as contained in the international human rights framework. There is evidence to suggest that there would be strong public support in the UK for ESCR.12 SHRC focuses on the existing international obligations of the UK under the UN and regional human rights system. It is now well established that UK courts have regard to such treaties in a wide range of circumstances, regardless of whether they are incorporated. Similarly, the Executive and administration also routinely have regard to such treaties in both

10 The JCHR “welcomes UK Government's preparedness to consider the inclusion of economic and social rights.” Twenty-Ninth Report of Session 2007-2008, Does the UK need a bill of rights, JCHR. para 164.11 For example, the right to health (and hospital treatment on the NHS); the right to housing for the homeless, the right to strike without losing one’s job. See Joseph Rowntree Reform Trust and ICM ‘State of the Nation’ polls. (2010), available at http://www.jrrt.org.uk/sites/jrrt.org.uk/files/documents/son-2010-summary-of-findings.pdf12 For example, the right to health (and hospital treatment on the NHS); the right to housing for the homeless, the right to strike without losing one’s job. See Joseph Rowntree Reform Trust and ICM ‘State of the Nation’ polls. (2010), available at http://www.jrrt.org.uk/sites/jrrt.org.uk/files/documents/son-2010-summary-of-findings.pdf

policy making and decision making processes.13 Relevant human rights instruments are:

UN System

International Covenant on Civil and Political Rights Convention on the Elimination of Discrimination against

Women International Convention on the Elimination of All Forms of

Racial Discrimination International Covenant on Economic, Social and Cultural

Rights Convention on the Rights of the Child Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment Convention on the Rights of Persons with Disabilities

Regional System

European Convention on Human Rights and Protocols European Social Charter European Convention for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment   Framework Convention for the Protection of National

Minorities   Council of Europe Convention on Action against Trafficking in

Human Beings   Council of Europe Convention on preventing and combating

violence against women and domestic violence   Treaty on the European Union, Treaty of Lisbon and the EU

Charter of Fundamental Rights.14 15

SHRC notes that these core human rights instruments contained all but one of the rights (a right to trial by jury) presented in the document by the Commission. For example a free standing right to equality is set out in Protocol 12 of the ECHR, rights in criminal and civil justice are set out in Article 5 and 6 of the ECHR and ICCPR, socioeconomic rights are set out in the ICESCR, children’s rights are set out in the CRC, and environmental rights are set out in Article 12 of the ICESCR (right of everyone to the enjoyment of the highest attainable standard of physical and mental health). In this respect, the Committee on Economic, social and Cultural Rights interprets the right to health

‘as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of

13 Protocol No. 14 to the European Convention on Human Rights. First Report of Session 2004–05, JCHR, 2004.14 See Case 5/88 Wachauf v Germany [1989] ECR 2609 and R (Saeedi) v Secretary of State for the Home Department [2010] EWCA Civ 990.15 The Charter includes rights such as the equality before the law and the right to good administration.

health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions…’16

Human rights law and standards, in particular the Covenant on Civil and Political Rights, does not confer the right to trial by jury in either civil or criminal proceedings but ‘rather the touchstone is that all judicial proceedings, with or without a jury, comport with the guarantees of fair trial.17 SHRC considers that new rights should supplement existing rights rather than rearticulate them. Moreover, they should demonstrably enhance the protection of rights in the national legal system.

SHRC reiterates any improvement in human rights framework in the UK should be oriented to supplement the HRA and develop a national action plan on human rights in order to ensure the effective implementation of these fundamental rights on the ground.

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?

Given the extent of private and voluntary sector involvement in the provision of public services in the UK, SHRC’s views is that the definition of public authority under the HRA plays a key role for an effective and humane delivery of the service. It is clear that under human rights law the State cannot evade its responsibility to safeguard Convention rights by delegation to private bodies or individuals.18

In this respect, SHRC has argued against a narrow interpretation of public authorities and remains concerned that as the case law currently stands, the definition of public authority is problematic. There have been some difficulties with the restrictive judicial interpretation of Section 6 of the HRA in relation to the meaning of public authority within the provision of public services by private entities.19 However, SHRC considers that the solution does not require the adoption of a UK Bill of Rights, but the implementation of a clear “functional” approach to the interpretation of section 6(3)(b) of the HRA by the courts.  

16 E/C.12/2000/4. (General Comments No. 14).17 Communication No 1239/2004: Australia. 29/04/2004. The Human Rights Committee (4.4).18 Van der Musselle v Belgium (1983) 6 EHRR 163; Costello-Roberts v UK (1993) 19 EHRR 112; see also UN Human Rights Committee on the fourth report of the United  Kingdom, 27/07/95, CCPR/C/79/Add.5519 See for example: Poplar Housing and Regeneration Community Association v Donoghue [2001] EWCA Civ 595; Callin, Heather and Ward v Leonard Cheshire Foundation, [2002] EWCA Civ 366 and YL v Birmingham City Council and others [2007] UKHL 27.

In light of the current law, SHRC recommends that the relevant government departments in the UK and devolved jurisdictions give urgent attention to the development of guidance on Section 6 of the HRA.

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?

The issue of “rights and responsibilities” has been central to political debate about the Human Rights Act. However, SHRC believes that the need to mitigate the perceived negative impacts of the HRA does not form serious basis for constitutional reform. Conversely, there has been very little public education about the rights and freedoms contained in the HRA and the ECHR and how they work and serve us all.

The underlying philosophy of human rights is that every human being is entitled to fundamental rights simply because they are human. They are intrinsic, universal and fundamental for individual and societal improvement. Human rights should not be found contingent on performing responsibilities. Whilst a number of rights such as voting rights and welfare benefits are usually dependent on citizenship or residence, human rights, like a fair trial, freedom from torture, privacy and free expression, generally apply to everyone within the jurisdiction of a state. Human rights is for everyone. It is a set of norms and principles that gives everybody equal rights and opportunities without discrimination.

Human rights law, including the European Convention on Human Rights, already includes the notion of duties and responsibilities. Few human rights are absolute20 and most human rights are limited or qualified by definition. Human rights must be exercised in a way that respects the human rights of others in society. The majority of human rights can be interfered with where it is “necessary in a democratic society” to protect the rights of others or certain other circumstances within the public interest.21 The need for “fair balance” between the general interest of the community and the personal rights of the individual is inherent in human rights, in particular in the whole of the ECHR. In practice, national and international courts engage cautiously in a case by case assessment of the proportionality of restrictions on rights in order to strike the right balance between the rights of the individual and the general

20 The prohibition on torture, inhuman or degrading treatment (Article 3), the prohibition of slavery and forced labour (Article 4) and the protection from retrospective criminal penalties (Article 7) are absolute rights.21 See for example Articles 8 and 10 of the ECHR.

interest of the community. As a result, the majority of human rights claims which come before the courts are unsuccessful.22 

The Universal Declaration of Human Rights, the blueprint of all human rights instruments, contains one of the most significant statements in relation to rights and responsibilities:

Article 29: (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

In other words, individuals, groups and institutions have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms as well as contributing to the promotion and advancement of society.

SHRC continues to be concerned with the policy and political direction of human rights at UK level as they are used as a political scapegoat in relation to a wide number of concerns in our society from criminal justice and terrorism to immigration and the outbreak of rioting in England last year.23 SHRC reminds the Commission that the State has a primary role to build understanding and respect for human rights, whether at home, at school, at work or in the community.

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

22 A study shows that of 132 post-HRA cases involving human rights claims before the House of Lords, only 35 were successful.  The Impact of the HRA in the House of Lords, Shah and Pole, LSE Law, Society and Economy Working Papers (2009) at: www.lse.ac.uk/collections/law/wps/wps.htm. At European level, the majority of cases brought to the European Court are struck out as inadmissible without receiving a full hearing. In the UK's case, 97% of cases filed at the court between 1966 and 2010 were dismissed during this preliminary stage. European court of human rights: which countries get the most judgments? The Guardian, 27 Jan, 2012 at http://www.guardian.co.uk/news/datablog/2012/jan/27/european-court-human-rights-judgments23 See for example, Teresa May, MP, Speech to the Conservative Party Conference last year in which she claimed that the Human Rights Act was responsible for blocking the deportation of foreign criminals: “We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat." Catgate: another myth used to trash human rights, The Guardian, October 4 2011; See also David Cameron, PM, comments on the riots in Are human rights to blame for the riots?, UK Human Rights Blog, August 16, 2011 at http://ukhumanrightsblog.com. See also comments of Dominic Raab, MP, relating to this Commission: 'The Commission risks being hijacked by the human rights lobby. It is supposed to be looking at how to scale back the rights inflation and compensation culture that has undermined law enforcement, democratic accountability and personal responsibility. 'Instead, it has churned out proposals for even more human rights. That would give judges enormous power to set social policy without proper democratic accountability, and cost the taxpayer a fortune.' The Human Rights to Claim Benefits: jobless could sue for better payments under controversial plan, Daily Mail, 2 July 2012: 10

human rights in the UK, or (ii) to introduce a UK Bill of Rights in some form?

There are three factors that should be considered in deciding whether to maintain existing arrangements or to introduce a UK Bill of Rights from a devolution perspective. Briefly these are: Constitutional: human rights have been protected both by the HRA and by the devolution statutes in the UK. In fact, the HRA is an important pillar of the constitutional framework of devolution. In Scotland, there exists a very close relationship between the HRA (including the ECHR) and the Scotland Act 1998, which collectively have a symbiotic relationship in the protection of human rights.24

The Scotland Act provides, for example, that the Scottish Government and Parliament have no competence to act in any manner that is contrary to the ‘Convention rights’. As a consequence, human rights are better protected within Scotland’s constitutional governance than at a UK level and this has had tangible benefits for the public in Scotland.

As the ‘observation and implementation’ of the ECHR has been devolved25 the consent of the devolved nations in relation to any amendment to, or repeal of, the HRA and/or legislation enacting a bill of rights, covering the devolved jurisdictions, would be needed as a matter of constitutional convention.26

The Parliamentary Joint Committee on Human Rights (JCHR) has taken the position that a ‘British’ bill of rights would, by definition, exclude Northern Ireland:

There is also a geographical aspect to the term "British" which is relevant, in that Northern Ireland is part of the United Kingdom but not part of Great Britain. A "British Bill of rights" therefore could not, by definition, apply to Northern Ireland.27

In this respect, SHRC reiterates that the HRA should be retained and built upon as part of further development in the promotion and protection of human rights within and across all jurisdictions including devolved.

Legal: the repeal of the HRA could also create a two tier system of human rights protection in the UK, which will affect legal certainty and the notion of universality of human rights. The HRA currently

24 See submission to the Commission on a Bill of Rights, SHRC 11 November 2011 at http://www.shrc.com 25 Convention Rights (Compliance) (Scotland) Act 2001.26 Cm5240, para 13, December 2001.27 A Bill of Rights for the UK? Joint Committee on Human Rights, HL 165-I/HC 150-I, July 2008, para 76.

provides a common standard of human rights protection for individuals throughout the UK.

Political: It is unlikely that the Scottish Government and Parliament would seek to lower the level of protection of human rights through supporting the repeal of the HRA.28 It can also be argued that UK Bill of Rights is not a live issue on the Scottish public agenda. In Scotland the focus and path of human rights has been rather on the incorporation of socio-economic and cultural rights for devolved areas such as health, housing and education.

In addition, Scotland has entered into a process of incremental constitutional reform that includes ongoing negotiations of devolution with the UK. This may have an impact on human rights as it will affect the current political framework and the balance between legislature and judiciary at both national and devolved levels.

SHRC invites the Commission to take stock of devolved government experiences regarding the implementation of human rights. In particular, the current development of a national action plan for human rights in Scotland, the arrangements for having due regard to the United Nations Convention on the Rights of the Child (UNCRC) in the Welsh Government’s work on policy and legislation, and the Bill of Rights process in Northern Ireland, which stresses the importance of justiciable economic and social rights. These are more likely to lead to progressive, rather than retrogressive, outcomes for our communities.

SHRC believes that full consideration should be given to the development of a national action plan for human rights, consistent with the UK’s international human rights legal obligations, with reference to the development and implementation of Scotland’s National Action Plan.

SHRC September 2012

28 See 2011 Scottish Government response to the UK Commission on a Bill of Rights at http://cbr.cjs.gov.uk/group/Scottish%20Government.pdf. See also Scottish Justice Minister’s oral Evidence to the Joint Committee on Human Rights, HL 165-II/HC 150-II, July 2008, Ev 59 and 60.