Bill of rights commission fails to live up to its brief

Bill of rights commission fails to live up to its brief

In four and a half months, it has published only one 20-page discussion paper, which has some glaring errors and omissions

Matthew Burton
guardian.co.uk, Friday 12 August 2011 15.41 BST

The Commission on a Bill of Rights has recently published its first discussion paper, entitled "Do we need a UK Bill of Rights?" This short document is designed to set out the basics of the UK constitution and the UK's human rights obligations under the European convention on human rights, as incorporated into UK law through the Human Rights Act 1998, and invite responses through the use of particular consultation questions.

However, this paper is not without its problems, in terms of both its content and its potential reflection upon the commission as a whole.

The commission was created by the coalition government because of the clear difference of opinion between the Liberal Democrats and Conservatives on the future of the Human Rights Act. While the Tories pledged in their 2010 general election manifesto to replace the Human Rights Act with a UK bill of rights, the Lib Dems sought to protect the act from legislative interference. Meanwhile, issues such as prisoners' voting rights, the sexual offenders register and so-called "super-injunctions" have forced human rights back into the political consciousness. They have led to important questions about the nature of the relationship between parliament and the courts.

Government commissions of this sort have two main functions: a reforming function, aimed at giving expert and independent advice on particular issues; and an educative function, whereby their reports and recommendations provide a useful education to the wider public about the issues involved. Disappointingly, it seems the commission is already failing to live up to its own importance.

In the four and a half months since its creation, its only output has been a 20-page discussion paper, which has some glaring errors and omissions.

First, parliamentary sovereignty, an essential part of the UK's unwritten constitution, is reduced to a meagre three-line summary in paragraph 9. The doctrine of parliamentary sovereignty, whereby parliament has the ultimate authority to declare what the law is, is the real battleground over the future of the Human Rights Act. When parliament – the Tories in particular – rails against "judicial activism" on the part of judges in the UK and the European court of human rights, it is the traditional doctrine of parliamentary sovereignty that they are defending.

This would be bad enough if the three-line summary were an accurate reflection of what parliamentary sovereignty is, and why it is important, but this is not the case. For example, the paper states: "Parliamentary sovereignty means that the power to legislate may be exercised only by Parliament," but without further qualification this is a misleading reflection of our legal system. This ignores the existence of both the common law and the royal prerogative, two important sources of law-making that exist outside the realms of parliament.

Second, the Human Rights Act itself is not mentioned until paragraph 28 of the paper, on page 8, which is surprising, given the importance of this legislation to many of the current debates concerning human rights in the UK, and the reason for the creation of the commission in the first place. While the paper does set out the important provisions in the Act itself, none of the voluminous case law that has been handed down since the Act came into force in 2000 is even alluded to. Even a brief mention of cases such as Ghaidan v Godin-Mendoza , in which the House of Lords discussed the nature of the Human Rights Act in relation to parliamentary sovereignty, would aid the understanding of readers, and respondents to the consultation, who may not have been immersed in the development of the UK constitution over the past decade.

In both these ways, the commission is failing in its educative function. If it is to receive meaningful and informed responses to its discussion paper, it must provide a basis to educate those from whom it wishes to invite responses. Not everyone will have the time or resources that lawyers and academics have to be able to seek out the case law on the Human Rights Act, so the commission has an important role in creating an educated public debate about human rights and the constitution.

A final overarching concern about the commission and the discussion paper relates to its purpose and long-term direction. The commission has nine members, seven of whom are QCs. Two are considered to be human rights experts and are also peers. Consequently, it is not lacking in expertise about the law, human rights or the workings and history of the constitution. So the low quality of the discussion paper leads one to question how seriously the work of the commission is being taken by its members, and whether the political divide in its make-up is hampering its long-term effectiveness. Human rights are always going to be surrounded by political controversy: inevitably, the commission will have to address contentious questions of constitutional importance on which the members may be divided. Nevertheless, if it cannot get the detail of basic constitutional ideas right, the commission may struggle to retain people's confidence in the quality and effectiveness of its work in the future.