Wednesday, July 18, 2012

Commission on Bill of Rights 2nd consultation

Just appeared in my inbox are two emails from Marie Colton of the Commission on a Bill of Rights Secretariat, attached to which is a message from Sir Leigh Lewis, Chair of the Commission and a copy of the Commission’s recently published second consultation paper. The Chairman says:
"I am writing to provide you with a copy of a second consultation paper that the Commission on a Bill of Rights is making public today.

As you may be aware, the Commission was established by the UK Government in March 2011 primarily to investigate the creation of a UK Bill of Rights. Over the last 15 months, we have consulted widely on the issues which form part of our mandate. In particular, we published a discussion paper in August of last year which attracted over 900 responses. We have also met with numerous groups and individuals from around the UK and held a series of seminars to enable us to seek and receive views. Further details about our work, terms of reference and consultation programme can be found on the Commission’s website ( Our thanks go to all those who have already contributed to our work and deliberations – whether by meeting with us, participating at one of our events, and/or submitting a response to our first discussion paper.

With less than six months to go until we must report, our Commission is now at a significant stage in its work. In particular, we have to decide whether or not to recommend a UK Bill of Rights and, if so, what form and content any such Bill might have. We have therefore decided to publish a second consultation paper to provide a further opportunity for you to tell us your views on a number of the key issues covered by our terms of reference and I am very pleased to attach a copy. If you responded to our first consultation last summer or have otherwise already conveyed your views to us, you do not need to repeat what you have already said which we have already taken very carefully into account. We would, however, very much like to hear from you again both on the further questions set out in this paper or if your views have developed or changed since you first responded. Equally, if you did not respond to our first consultation, that is no bar whatsoever to giving us your views now which we would greatly welcome.  

The deadline for responding to the consultation paper is 30 September 2012.

We greatly look forward to hearing your views.

Yours sincerely,

Sir Leigh Lewis KCB
In the thick of a multitude of battles with zombie bureaucrats over entirely unrelated matters, I did draft and send a response to the original consultation in August last year. I realised, sadly after submitting, that my clumsy legal terminological inexactitudes and inadvertent misuse of legal and constitutional terms probably led to my submission being filed under whatever euphemism the Commission were then using for 'clueless'. It was a classic example of importance of not writing at the margins of your time and sending off (what you, at least, consider to be) significant papers, in a hurry, without first giving them your full attention and running the draft past informed friends and colleagues.

The questions in this second consultation are as below.
"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?
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?
Q3: If there were to be a UK Bill of Rights, should it replace or sit alongside the Human Rights Act 1998?
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?
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?
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?
Q7: What in your view would be the advantages, disadvantages or challenges of the inclusion of such additional rights?
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?
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?
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?
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?
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?
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?
Q14: What are your views on the possible models outlined in paragraphs 80-81 above for a UK Bill of Rights?
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?"
 Paragraphs 80-81 referred to in Q14 are as follows:
One possible model for a UK Bill of Rights in this context is a Bill that might sit alongside the existing Human Rights Act and contain substantially similar provisions and rights to those currently found in Schedule 1 to the Act. Under this model these rights might apply UK wide but be exercisable in respect of reserved matters only. Such an instrument might also include a separate chapter containing rights that applied only to England, as
well as a statement that acknowledged the competence of the Northern Ireland Assembly, the Scottish Parliament and the National Assembly for Wales to enact legislation conferring additional rights to meet the particular needs of those countries. Any additional rights passed by the devolved legislatures would, by virtue of the existing devolution statutes, relate to devolved matters only. In the view of some such a model might simply reflect what already happens in practice in respect of rights protection under the devolution statutes.8
Another possible model might be a UK Bill of Rights that contained additional rights in respect of Northern Ireland, Scotland and Wales but which would not enter into force in respect of those countries without the consent of the respective devolved legislature."
I would highly encourage engagement with the consultation. I wouldn't put it past the political digerati to stoke up some public mischief using the possible Bill of Rights and Human Rights Act as political footballs, in order to divert attention from their endless woes and pathological ineptitude. So the importance of this Commission cannot be overstated.

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