The British Bill of Rights – what are we all to do about it?

by Alan Miller - Posted on 28 July 2022

We finally have the British Bill of Rights in all of its glory. We can now see that it is neither “British” – being unwelcome in the legislatures of Scotland, Wales and Northern Ireland and indeed opposed by the majority of parties within the UK Parliament itself – nor a “Bill of Rights” as commonly understood in the world of the 21^st century .

Some have offered helpful detailed analysis of many aspects of the British Bill of Rights Bill (such as this post by Mark Elliot and this post Daniella Lock for the UKCLA) by and many have condemned it from a wide range of perspectives.

In short, if the Human Rights Act was about “bringing rights home” from the European Court of Human Rights in Strasbourg, the British Bill of Rights will not simply be sending them back but locking them up at Westminster. It will attempt to “legally distance” us all from the European Court of Human Rights.

The issue is what are we all to do about it?

Of course, across the UK we must all make every effort to oppose its passage at Westminster. The reality is that nevertheless it is likely in one form or another to become law although we are of course living in times of much political uncertainty.

Once law, it sets in train a process that could lead to the withdrawal altogether of the UK from the Council of Europe and its European Convention on Human Rights or face expulsion as happened recently to Russia. The political hubris of “taking back control” will meet the reality of international treaty obligations to comply with judgments of the European Court of Human Rights and there will only be one winner.

Within the broader international community, the replacement of the Human Rights Act by a regressive British Bill of Rights will serve as an encouragement to repressive regimes and will accelerate the decline of UK influence within the UN.   

However, let us begin closer to home and consider what we can all do within the context and responsibilities of human rights leadership of Scotland.

What is the context?

The British Bill of Rights and the forthcoming Scottish Human Rights Bill represent two clearly identifiable trajectories and they may be termed as the “glass half full and glass half empty trajectories”.

At present, we could say that the Human Rights Act fills half the glass across the UK. It contains civil and political rights drawn from the European Convention on Human Rights and upheld by the European Court of Human Rights. These include free speech and assembly, fair trial, privacy and non-discrimination among others.

However, internationally recognised human rights provided by a range of UN treaties are much broader and include not only such civil and political rights but also economic, social and cultural as well as environmental rights – such as the rights to an adequate standard of living including housing and food, to health, to social security and to a healthy environment. These rights have never been as essential as they are now for people in their everyday lives.

The British Bill of Rights aims to effectively neuter in practice the limited civil and political rights previously provided to everyone in the UK by the Human Rights Act.

On the other hand, the Scottish Human Rights Bill aims to maintain such civil and political rights as well as bring into our law the maximum range possible, within devolved competence, of all of the internationally recognised human rights in UN treaties including economic, social, cultural and environmental.

Accordingly, one trajectory is upward and outward and the other is inward and backward.

To put it another way, one trajectory will fill the glass half full while the other trajectory will empty it.

These two identifiable trajectories present Scotland with both an opportunity and responsibility to demonstrate human rights leadership.

The key issue is what we can do in the here and now to keep on the upward trajectory.

This is because in these times there is no ground upon which to stand still. Rather it is a choice between regression and progression.

Firstly, in the here and now, incorporation of the UN International Covenant on Civil and Political Rights (ICCPR) as part of the Scottish Human Rights Bill would be the best and most straightforward action to take from a human rights perspective.

The ICCPR contains all of the rights contained within the soon to be repealed Human Rights Act and would sit comfortably within the new proposed Scottish human rights framework along with the five other key UN human treaties on economic, social and cultural rights and on children, women, disability and race.

Everyone would be able to enjoy equally the rights provided by all of these treaties. There would be consistency across all devolved areas and it would meet and indeed help set international standards.

The British Bill of Rights will be a “protected” Westminster statute and the Scottish Parliament will not have any power to repeal or modify. The Scottish Parliament will withhold its consent to the passage of the Bill but Westminster will override that. However, incorporation of the ICCPR by the Scottish Parliament could at least restrict the British Bill of Rights to those areas currently reserved.

Incorporation of the ICCPR would therefore be the best and most straightforward action for Scotland to take from a human rights leadership perspective. In doing so, it would demonstrate a way forward for others in the rest of the UK.

If the human rights perspective is straightforward, the UK constitutional landscape however is less so and poses complex challenges.

This is all the more so in the state of uncertainty left by the recently much critiqued judgment of the UK Supreme Court on the UNCRC (Incorporation) (Scotland) Bill and its latitude given to the indeterminate concept of “unqualified power” of the sovereignty of Westminster (discussed earlier on the Strathclyde Law Blog).

There will clearly be a need to consider the extent of this latitude and the parameters of the “protected” nature of the British Bill of Rights as to whether it would be beyond the power of the Scottish Parliament to seek to restrict it to those areas currently reserved.

This judgment did nevertheless affirm the competency of the Scottish Parliament to legislate to incorporate UN human rights treaties as long as such legislation clearly ensured that such incorporation only had effect within devolved areas.

Accordingly, we do all need to consider in full the obvious human rights merits of incorporation of the ICCPR along with addressing possible “known and unknown” constitutional obstacles to incorporation.

Due to the absence of a clear written constitution with a Bill of Rights – whether British or Scottish - such a state of uncertainty on such a fundamental matter is simply unacceptable.

Every child in school, elderly resident in a care home and man and woman in the street should know what their human rights are and how to exercise them.

Human rights are such a fundamental part of everyday life and society that we cannot leave them as the exclusive preserve of lawyers debating the outdated concept of the “unqualified power” of parliamentary sovereignty that is in reality a fig leaf for government control as evidenced by the proposed British Bill of Rights.

Accordingly, to put matters beyond any doubt, when the time comes soon for Westminster to amend the Scotland Act and replace the Human Rights Act with the British Bill of Rights it should clearly state in the amended Scotland Act that the British Bill of Rights will apply only to reserved matters. This would then clear the way for the Scottish Parliament to incorporate the ICCPR and for it to apply within devolved areas.

Secondly, and following from the above, a strategic issue from these two trajectories of the British Bill of Rights and the Scottish Human Rights Bill is recognition of the reality that people’s lives are neither devolved nor reserved.

Accordingly, the experience of different human rights standards between reserved and devolved areas of public life will only increase a demand for constitutional change and further powers to achieve a better consistency of human rights standards across life.

People who find themselves enjoying a higher standard of rights in devolved areas such as health and social care or parts of social security will only naturally want to enjoy the same standards of rights in all parts of social security as well as those currently reserved areas such as employment, equality and immigration.

Moreover, people will only naturally want such standards to align with European and international standards and not be subject to what many may regard as the lowest common denominator within the UK as set by Westminster.  

There is of course currently within the Scottish Parliament majority support for an independence referendum and it appears we are likely to soon experience a renewed public debate on the merits and otherwise of different proposed forms of constitutional change.

The introduction of a British Bill of Rights into this landscape will inevitably prompt debate in Scotland on the relative merits of a Bill of Rights for Scotland, protected within an independent written constitution, meeting and helping develop international best practice.

A debate on Bills of Rights has already begun in Wales and has indeed been taking place for some time in Northern Ireland.

We need to assess the merits of all of these prospective Bills of Rights processes according to international principles and standards. These could include among others the need of universal access, right to an effective legal remedy, full alignment with regional and international frameworks, monitoring and reporting of outcomes of the realisation of the rights as well as, critically, the meaningful public participation in both the process of preparation and implementation of such Bills of Rights.

The reality is that, well beyond looking at all that is happening through a constitutional or party political lens, we have reached a moment in time when purely from a human rights leadership perspective the status quo is no longer an option and the choice facing us is either progression or regression.

 

Alan Miller is Professor of Practice in Human Rights Law at the University of Strathclyde and independent expert with the UNDP Crisis Bureau.

He is an independent adviser on the forthcoming Scottish Human Rights Bill and served as Independent Co-Chair of Scotland’s National Taskforce for Human Rights Leadership. Its Report is shaping the preparation of the Bill.

The Scottish Parliament unanimously elected and re-elected him as the inaugural Chair of the Scottish Human Rights Commission. His peers subsequently elected him as inaugural Chair of the European Network of National Human Rights Institutions and he went on to serve as Special Envoy of the Global Alliance of National Human Rights Institutions.