Human rights and the commission on a bill of rights

HUMAN RIGHTS AND THE COMMISSION ON A BILL OF RIGHTS
This briefing was produced by Colm O'Cinneide, Senior Lecturer in Laws, UCL, in October 2011 as a resource for Equality and Diversity Forum members, observers and other NGOs.
Summary

1. 
   A Commission has been established to consider whether a case exists to introduce a new UK Bill of Rights. Serious concerns exist that this process could result in the erosion of existing levels of human rights protection. In particular, there is a danger that the Human Rights Act will be substantially weakened, or that attempts will be made to propose UK withdrawal from the jurisdiction of the European Court of Human Rights. This could have serious consequences for vulnerable groups.
   

2. 
   It is therefore important that civil society organisations engage with the consultation exercise that will be carried out by the Commission. EDF members in particular have much of value to contribute to the Bill of Rights debate. This briefing is intended to outline the main legal issues involved. It commences with an analysis of the protection for human rights offered at present by the European Convention on Human Rights and the Human Rights Act, with a particular focus on case-law that is particularly relevant for EDF members. It then examines the current status of the debate on a Bill of Rights, and identifies the potential implications for human rights, equality and non-discrimination law.
   

3. 
   This briefing concludes with two Appendices. The first contains a rebuttal of many of the myths that surround the Human Rights Act, taken with thanks from Liberty’s website. The second provides an overview of landmark court decisions under the Human Rights Act, prepared by Helen Wildbore
   

for the Human Rights Futures Project at the LSE and reproduced here again with thanks.
The Achievements of the European Convention on Human Rights

4. 
   The European Convention on Human Rights (the ‘ECHR’) was drawn up after the atrocities of the Second World War, with UK lawyers playing a major role in drafting its text. The UK was also one of the first countries to ratify the Convention back in 1950. Since that time, the ECHR has become perhaps the most successful international instrument for protecting human rights in the world. All 47 member states of the Council of Europe, including the members of the EU as well as states such as Croatia, Russia and Turkey, have now ratified the Convention.¹ Its provisions have come to represent common democratic values shared by all European countries.
   

5. 
   By ratifying the ECHR, states commit themselves to respecting certain basic human rights, such as the right to freedom from torture and inhuman and degrading treatment (Article 3), the right to fair trial (Article 6), the right to private, home and family life (Article 8) and the right to non-discrimination in the enjoyment of Convention rights (Article 14). To make sure that states live up to their promises, the Convention also establishes the European Court of Human Rights. Individuals can bring cases to the Court alleging that states have failed to respect their rights under the Convention.
   

6. 
   The judgments of the European Court of Human Rights have played a very important role in protecting the rights of vulnerable groups in the UK and across Europe as a whole. A few UK cases will serve as examples. In Dudgeon v UK,² the ban on homosexual acts in Northern Ireland was held to be incompatible with the right to a private life. In Abdulaziz v UK,³ provisions of the Immigration Rules that imposed stricter conditions on husbands joining legally resident spouses in the UK than were imposed on wives joining their husbands were held to constitute sex discrimination. In Price v UK,⁴ the prison conditions in which a woman with physical disabilities was held were found to constitute inhuman and degrading treatment. In Keenan v United Kingdom,⁵ the Court held that a failure to provide appropriate medical care to a person diagnosed with acute schizophrenia and a known suicide risk constituted inhuman treatment contrary to Article 3.
   

7. 
   In general, UK law in areas such as asylum and immigration, mental health law, access to justice, the treatment of terrorist suspects, equality and non-discrimination, the rights of children, the rights of persons with disabilities and many other areas is now heavily influenced by the decisions of the European Court of Human Rights. It has acted as a ‘conveyor belt’ for bringing human rights values into the mainstream of UK law.
   

The Importance of the Human Rights Act

8. 
   The Human Rights Act 1998 (the HRA) incorporated the ECHR into UK law. This means that UK courts can now act to protect the rights contained in the Convention. (Before the HRA, it was very difficult to bring a human rights claim before the British courts.) Individuals and groups can use the HRA to challenge actions by public authorities which they consider to violate the ECHR. If they succeed, the courts can grant relief, except where the acts in question are directly authorised by an Act of Parliament, in which case the courts can issue a ‘declaration of incompatibility’, which is a non-legally binding declaration that the legislation in question is incompatible with the ECHR. Parliament is not legally obliged to respond to such a declaration, and could choose to ignore it. However, the individual affected could still seek relief from the European Court of Human Rights in Strasbourg, and the practice since the coming into force of the HRA is for Parliament to respond to a declaration of incompatibility by changing the offending law in question.
   

9. 
   The HRA has been applied in a series of important cases, where the UK courts have ‘taken into account’ the jurisprudence of the European Court of Human Rights, alongside traditional British common law liberties, to protect vulnerable individuals and to uphold basic rights.
   

10. 
    The following are just a few examples of cases decided by the courts since the HRA came into force which have resulted in enhanced protection for human rights. Many others could also be mentioned. This sample of cases begins with a selection of cases that have affected the rights of persons with disabilities, the rights of refugees and immigrants, and the rights of LGBT communities. These three categories have been chosen as representative sample areas. However, the impact of the HRA has been considerable, and additional examples of cases are also given that range across the fields of gender equality, family rights, the rights of children and the right to religious freedom.
    

Persons with Disabilities

11. 
    In R (Bernard) v London Borough of Enfield,⁶ a woman with severe disabilities was reduced to living in appalling conditions due to delay on the part of a local authority in making necessary adjustments to her accommodation. The High Court held that this constituted a violation of the right to private, home and family life contrary to Article 8 ECHR, and awarded her significant damages.
    

12. 
    In A v East Sussex County Council,⁷ two disabled persons were living in appalling conditions as a result of health and safety restrictions imposed by East Sussex County Council, which considerably restricted the ability of their state-supplied carers to engage in any form of manual lifting activities. Munby J. in his judgment considered that this had produced a situation where their living conditions could be described as ‘degrading treatment’ contrary to Article 3 ECHR. He found that the local authority had failed to factor in due consideration for the human dignity of the claimants in setting out its health and safety policies, and ordered it to reassess its guidelines. This judgment has influenced lifting policies across the country, and has become a major point of reference in the field of health and safety.
    

13. 
    In a series of important administrative tribunal decisions, the Article 6 ECHR right to fair trial has been applied to remedy procedural failures affecting persons with disabilities seeking access to benefits. Thus, in one case, an Upper Tribunal Judge found that the claimant had been deprived of a fair hearing because of misleading advice given by the Department of Works and Pensions and other bodies.⁸ In another case, delays in the appeal process after an initial decision to refuse benefits was held to have violated Article 6.⁹ These decisions have helped to improve procedural justice for persons with disabilities attempting to negotiate the complex and often obscure social benefits system.
    

14. 
    The HRA has also come to the assistance of persons with disabilities caught up in the criminal justice system. The Price and Keenan cases, already discussed, established that the government must take appropriate measures to provide adequate care and facilities for persons with disabilities who are in custody. In Savage v South Essex Partnership NHS Trust,¹⁰ an NHS foundation trust was similarly found to have breached its positive obligations under Article 2 ECHR to protect the life of a mentally ill woman who had committed suicide after absconding from one of its hospitals.
    

15. 
    Also, in R (B) v DPP,¹¹ the Crown Prosecution Service (CPS) was found to have breached Article 3 ECHR (the right to freedom from inhuman and degrading treatment) by denying access to justice to a victim of a serious assault. The CPS abandoned a prosecution in this case on the grounds that the victim had schizophrenia and thus in their view was an unreliable witness, despite the fact that the victim had identified his assailants and physical evidence existed of the extent of the crime. The High Court held that this decision was both irrational and a violation of the ECHR, and awarded £8000 in damages to the aggrieved victim.
    

16. 
    Furthermore, a series of important Article 6 decisions have reinforced the protection enjoyed by individuals under the Mental Health Act 1983, including the first ‘declaration of incompatibility’ issued under the Act (i.e. when the courts issue a non-legally binding declaration that an Act of Parliament as currently enacted is not in conformity with the ECHR) H v Mental Health Review Tribunal, North East London Region and the Secretary of State for the Department of Health.¹² The mental health legislation has been amended several times at this stage in response to decisions under the HRA.
    

Refugees and Immigrants

17. 
    In R (on the application of Adam and Limbuela) v Secretary of State for the Home Department (best known as the ‘Limbuela case’),¹³ the application of government regulations which stopped late-applying asylum seekers from receiving food and housing benefits was held to violate the Convention, on the grounds that this exposed the individuals concerned to a real risk of destitution, homelessness and extreme poverty. This decision has ensured that many asylum seekers continue to receive basic welfare support that they would otherwise have been denied.
    

18. 
    In the case of R (Baiai) v Secretary of State for the Home Department,¹⁴ the House of Lords held that rules that required non-UK nationals in certain circumstances to seek special permission from the Home Secretary before they could marry violated the right to marry and form a family recognised in Article 12 ECHR. Baroness Hale described these rules as ‘an arbitrary and unjust interference with the right to marry’. These rules are now in the process of being changed, removing an unjust impediment to the enjoyment of family life.
    

19. 
    In ZH v Tanzania,¹⁵ the UK Supreme Court recently held that the right to family life recognized in Article 8 ECHR required that the best interests of a child had to be a primary consideration in cases where immigration authorities were seeking to deport families with children possessing UK citizenship. In this particular case, it meant that a non-national mother with young children who had UK nationality could not be deported back to Tanzania, as it would mean massive disruption to the lives of the children. (Their father, a UK national, was separated from the mother, infected with HIV and was unable to take care of the children.) This judgment is now applied in numerous other immigration cases, ensuring that the rights of children are factored into decisions on whether to deport families.
    

20. 
    The ZH decision was also preceded by a series of other House of Lords and Supreme Court decisions such as such as Beoku-Betts¹⁶ and Chikwamba¹⁷ which have applied Article 8 ECHR and required that appropriate consideration is given to the importance of preserving family life when it comes to decisions whether or not to deport. The HRA has also made an important difference in other areas of asylum and immigration decision-making, ensuring fairer decision-making procedures and reinforcing the rights of applicants.¹⁸
    

LGBT Rights

21. 
    The ECHR has played a leading role in protecting the rights of gay and lesbian people across Europe. In fact, although sexual orientation is not mentioned explicitly in any of the provisions of the Convention, the European Court was the first international body to find that criminal laws that prohibit homosexual acts violate human rights. Decisions of the Strasbourg Court such as Dudgeon v UK (already mentioned above) and Norris v Ireland played a crucial role in ending the criminal prohibition of homosexual activity across Europe.
    

22. 
    In addition, decisions of the Strasbourg Court such as Salgueiro Da Silva Mouta v Portugal¹⁹ and Karner v Austria²⁰ cleared the way for the introduction of civil partnership legislation in the UK and elsewhere, by finding various restrictions on the rights of gay and lesbian couples to be incompatible with the provisions of the Convention. Similarly, decisions of the UK courts applying the HRA also played a crucial role in this respect, such as Ghaidan v Mendoza,²¹ where the House of Lords interpreted the Rent Acts as extending leasehold protection to same-sex partners.
    

Additional Case-law Examples: Gender Equality, Family Rights, the Rights of Children and Freedom of Religious Belief

23. 
    The Strasbourg Court has repeatedly found laws which discriminate on the grounds of sex to be in violation of the Convention, as in Abdulaziz v UK²² (mentioned above), where sex discrimination in the immigration Rules was found to be contrary to Article 14 ECHR.
    

24. 
    Under the HRA, UK courts continue to apply the Convention rights to protect the rights of women. In 2008, an 18-year old mother received damages from social services for taking her newborn baby away from her as soon as he was born, after arguing that this went against her rights under the HRA.
    

25. 
    The rights of unmarried couples have received significant protection under the HRA. In Re G (Adoption: Unmarried Couple),²³ the House of Lords found restrictions in Northern Irish law on the ability of unmarried partners to adopt children to be contrary to Article 14 ECHR. Similarly, in Re Morrison^, the exclusion of unmarried partners from a scheme to compensate married partners the close family members of deceased members of the Police Service was
    

26. 
    In R (Williamson),²⁴ Baroness Hale emphasized the importance of children’s rights within the overall framework of the ECHR, which was subsequently reinforced by the recent decision of the UK Supreme Court in ZH v Tanzania.
    

27. 
    In Ivanova v Bulgaria, the European Court of Human Rights held that the dismissal of the applicant from her position in a school on the basis of her membership of a Christian evangelical group constituted a violation of the right under Article 9 ECHR to religious freedom. In Buscarini v. San Marino,²⁵ the European Court found a requirement that new parliamentarians had to take an oath on the Bible violated the right to religious freedom of non-Christians. Both the Strasbourg Court and the UK courts under the HRA continue to apply this case-law, and it forms part of the background against which anti-discrimination legislation is interpreted and applied in cases such as R (Amicus and others) v Secretary of State for Trade and Industry.²⁶
    

Beyond the Courts

28. 
    In citing all of these court decisions, it should also be remembered that the HRA has also had a considerable impact outside of the courtroom. Its provisions have often made it possible for individuals and families to challenge their treatment by public authorities, and to succeed in vindicating their rights, without having to go to court.
    

29. 
    The British Institute for Human Rights (BIHR), Liberty and other human rights organisations have come together to set up a website - http://www.ourhumanrightsstories.org.uk - that lists many examples of where the HRA has been used to protect the rights of individuals and families. Many of the case studies on that site involve situations where the HRA has been successfully used to protect rights without having to go to court.
    

30. 
    These case studies include the following situations, taken with thanks from the ‘Case Studies’ section of the website – http://www.ourhumanrightsstories.org.uk/case-study. Each case study is taken from the work of a particular organisation, listed after each example.
    

A woman and her children were fleeing domestic violence. The woman’s husband was attempting to track the family down; each time he discovered their whereabouts the family moved to a different area. The family eventually arrived in London and was referred to the local social services department. Social workers told the mother she was an unfit parent and that by moving she had made the family intentionally homeless. They therefore told her she was not eligible for housing. She was told that her children had to be placed into foster care. An advice worker helped the mother to challenge this claim using the Human Rights Act. They argued that social services were not properly considering the rights of the woman and her children to respect for family life, protected by Article 8. Under this right, social services needed to consider the rights of the woman and her children and to take actions which are necessary and proportionate. As a result, the family were told that they could remain together and that the social services department would provide the deposit if they could secure private rented accommodation. (POhWER)

A man in his early 30s with severe autism had been in the care of his foster mother since the age of two. She also fostered babies with learning difficulties. A baby died in her care and this was investigated by the authorities. During the investigation the man was placed in respite care, without any formal procedures being followed. His foster mother was prevented from visiting him. After a number of calls she was told she could bring him a present on his birthday, but when she turned up she was not permitted to see him. He began to get very unwell due to stress and 5 months after being separated from his foster mother he was admitted to hospital. The man would not let the doctors treat him and an advocate became involved. She argued that his right to respect for family life was not being respected as his foster mother was to all intents and purposes his mother. She also raised concerns about his right to liberty given the informal nature of the separation. After being supported by his advocate he was returned to the care of his foster mother, and the authorities admitted that there had never been any concerns regarding her treatment of him. They admitted he’d been forgotten in the system and the service manager went to his home to apologise. His advocate said that the positive outcome was a direct result of her heavily using the Human Rights Act in advocating for him, ‘human rights absolutely made a difference’. (POhWER)
C was sacked from her job in airport security after she was refused counter-terrorism clearance. She had no idea why she might be thought to be a risk and was not given any reasons. Liberty took judicial review proceedings relying, among other arguments, on Article 6 (right to a fair hearing).  During the case, it became obvious that the decision to sack her was made on flimsy grounds. The Department of Transport conceded that the process was flawed and paid C compensation. It has also now altered its procedures. (Liberty).
An older man with dementia was admitted to hospital. He was placed on a ward in which every patient had a ‘do not resuscitate’ order (DNR) placed on their file. His advocate came to visit him and noticed the DNR, which was not signed by a doctor. She queried it and was told that everyone on the ward had a DNR automatically. The client was not aware of the DNR and his advocate believed him to have some level of capacity to take the information on board. In addition he had two estranged daughters who had visited but were not consulted or informed. She challenged this using the right to life and the right not to be discriminated against. The DNR was withdrawn. (POhWER)
A has cerebral palsy. Because of the risk that he might choke on his food, the NHS trust responsible for his care refused to allow his carers to feed him orally. Instead he was fed through a tube directly into his stomach.  Despite the risk he wished to be able on occasions to eat normally and to enjoy his food. Relying on Article 8 (respect for the person) Liberty persuaded a specially established ethical panel to agree to his request. (Liberty)
A couple with learning disabilities couple were living in a residential assessment centre so their parenting skills could be assessed by the local social services department. CCTV cameras were installed including in their bedroom. Social workers explained that the cameras were there to observe them performing their parental duties and for the protection of their baby. However, the couple were especially distressed by use of the CCTV cameras in their bedroom during the night. With the help of a visiting neighbour, the couple challenged this practice using the Human Rights Act. They argued that social services were not properly considering their right to respect for family and private life, protected by Article 8. Under this right, social services needed to consider the rights of couple and their child and to take actions which are necessary and proportionate. The couple explained that they did not want their intimacy to be monitored, and that, besides, the baby slept in a separate nursery so it was not proportionate to monitor the couple in their bedroom at night. As a result, the social services team agreed to switch off the cameras during the night so that the couple could enjoy their evenings together in privacy. (ATD Forth World)
Mr and Mrs Driscoll had lived together for over 65 years. He was unable to walk unaided and relied on his wife to help him move around. She was blind and used her husband as her eyes. They were separated after Mr Driscoll became unwell and was moved into a residential care home. Mrs Driscoll wanted to move to the home with her husband but was told she did not meet the criteria used to by the local authority to allocate places. Human rights experts and older people's organisations pointed out that this was a breach of the couple's right to respect for their private and family life (Article 8), protected by the Human Rights Act. A public campaign launched by the family, supported by various human rights and older people’s organisations and the media, used these human rights arguments to convince the local authority to reconsider its decision. As a result Mrs Driscoll’s needs were reassessed by social services, and she was offered a place in the same care home as her husband. (BIHR)

31. 
    The website contains many other case studies, from a wide variety of sources. These examples illustrate how the court decisions discussed above are often merely the tip of the iceberg when it comes to the impact that the HRA has had since coming into force in 2000.
    

The Benefits of the HRA/ECHR

32. 
    Taken as a whole, the impact of the HRA and the ECHR on UK law has been considerable. Human rights values have been infused into the British legal system, which previously only recognised a limited set of highly abstract common law rights which could -and sometimes were - overridden by Acts of Parliament that the judges were effectively constitutionally barred from reviewing.
    

33. 
    This has dramatically expanded legal protection for the rights of vulnerable groups, and greatly reinforced the remedies that exist against discrimination. In contrast, anti-discrimination legislation such as the Equality Act 2010 is much more limited in scope: it does not apply to Acts of Parliament or to government regulations, and can be overridden by other legislation,
    

34. 
    If the HRA had not been part of UK law, few if any of the above cases could have been brought in the UK courts. The individuals affected by the rights abuses in question would have had to bring a case to the European Court of Human Rights in Strasbourg, which is a long, costly and time-consuming process.
    

35. 
    The European Court of Human Rights continues to develop its jurisprudence in the field of equality and non-discrimination. In DH v Czech Republic,²⁷ the segregation of Roma children in ‘special schools’ was held to be incompatible with the Convention. Kiss v Hungary,²⁸ the Court held that a restriction placed on the voting rights of persons with mental disabilities violated the Convention. In Kiyutin v Russia,²⁹ the denial of a resident permit to the applicant on the grounds that they were HIV-positive has been held to violate Article 14 of the Convention. In MSS v Belgium and Greece,³⁰ the Court has recently ruled that asylum seekers could not be returned to Greece for processing, on the basis that the conditions in Greek detention camps violated Article 3 of the Convention. These cases demonstrate an ever-deepening engagement on the part of the European Court of Human Rights with equality issues. As long as the HRA remains in place, the human rights principles that underpin these decisions will continue to be available to UK courts as a tool to infuse, re-energise and transform British law.
    

The Threat to the HRA

36. 
    The HRA has been regularly attacked by certain politicians and sections of the media. It has been suggested that the incorporation of Convention rights into UK law has resulted in various undesirable consequences: in particular, that certain groups such as Travellers, illegal immigrants and others have benefited to an unjustified degree from its provisions. Analysis of the impact of the Act produced by the Ministry of Justice and the Joint Committee on Human Rights in 2007 called into question the accuracy of many of these claims, but the HRA continues to be a source of political controversy.
    

37. 
    Recently, the focus of criticism has shifted to the European Court of Human Rights, with the HRA sometimes wrongly being presented as having incorporated the case law of the ECHR lock stock and barrel, along with the rights themselves. In Hirst v UK,³¹ the Court held that the UK’s denial of the vote to prisoners constituted an excessive restriction on the right to participate in elections as protected by Article 2 of the First Protocol of the ECHR. This has triggered a media and political backlash, with the Daily Mail and some MPs calling for the UK to consider withdrawing from the jurisdiction of the Court.³² Others, including Lord Hoffmann, a recently retired senior British judge, have criticised the Court for being too activist and interventionist in protecting rights and called for reform.³³
    

The Commission on a Bill of Rights

38. 
    In its manifesto for the 2010 general election, the Conservative Party suggested that the HRA should be replaced by a British Bill of Rights. Partly in response to the controversy surrounding the issue of votes for prisoners and partially in fulfilment of an undertaking entered into as part of the coalition agreement concluded in May 2010, a Bill of Rights Commission was established in March 2011. The Commission is widely understood as a mechanims for ‘brokering’ the conflicting views on the HRA held by the coalition partners. Its terms of reference are to ‘investigate the creation of a UK Bill of Rights that incorporates and builds on [the UK’s] obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties’.³⁴ There is no reference to the Human Rights Act in the terms of refrence allowing for the possibility of a different, or indeed weaker, approach to incorporating the UK’s “obligations” under the ECHR. The Commission will also consider ways of promoting better understanding of rights, and advise on possible reform of the European Court of Human Rights.
    

39. 
    The Commission is composed of a mixture of prominent critics and supporters of the HRA. It will consult with the public, interested organisations and the devolved administrations, and report no later than by the end of 2012. The Commission has recently met for the first time, and had preliminary discussions on how it will proceed with its allocated role. It has been reported that due to the differences of perspective by key members of the Bill of Rights Commission a separate inquiry to address the HRA and the UK relationship with the ECHR has been established by the Conservative Party, chaired by the Home Secretary, Theresa May³⁵.
    

How Could the Replacement of the HRA by a Bill of Rights Limit Legal Protection for Human Rights?

40. 
    Legal protection for human rights could be seriously limited by the repeal, amendment or replacement of the HRA in several different ways, all of which could have a considerable impact on issues related to equality and diversity.
    

41. 
    Firstly, there appears to be political support in some quarters for the HRA to be replaced by a Bill of Rights which would be a purely political declaration lacking any legally binding force, or at the very least significantly reducing the current (relatively modest) powers of the courts to adjudicate on human rights.³⁶ This would return the legal position to something resembling that which applied before 1998. This would return the legal position to the situation that applied before 1998. If this happens, then it will become extremely difficult for individuals to challenge rights abuses in the UK courts. They will have to bring their cases to the European Court of Human Rights in Strasbourg, which will involve considerable delay, travel and costs. Human rights law will be largely uprooted from the UK legal system, with potentially serious consequences for vulnerable groups.
    

42. 
    Secondly, even if the HRA is replaced with a legally binding Bill of Rights, given that this proposal is largely in response to sustained criticism from sections of the press and opponents of the ECHR it is probable that at least some of the rights in this new instrument will be more limited than they are currently , or else they may be watered down through wording that narrows the scope of those eligible to be protected by them. This could seriously dilute the protection afforded to vulnerable individuals and groups under the existing provisions of the HRA.
    

43. 
    Thirdly, if the HRA is replaced by a new British Bill of Rights, UK courts may no longer be required to ‘take into account’ the case-law of the European Court of Human Rights, as they are currently under s. 2(1) of the HRA. This would sever the link between UK law and the European Court of Human Rights, preventing the progressive jurisprudence of the European Court from enriching UK law and reducing the universal application of current rights protection. The UK would be the first country in Europe to effectively de-incorporate the ECHR from its domestic law setting a precedent to others to follow suit.
    

44. 
    Finally, repeal or ‘reform’ of the HRA could even involve an attempt to withdraw the UK from the jurisdiction of the European Court of Human Rights. This would be an extreme step, but it has been supported by the Daily Mail, several Conservative MPs and Policy Exchange, a think tank linked to the Conservative Party.³⁷ If the UK were to withdraw from the jurisdiction of the Court, this would cause irreparable damage to human right protection across Europe. UK withdrawal would in all likelihood be followed by withdrawal by other states such as Russia and Turkey, resulting in the partial collapse of the European Convention on Human Rights. In other words, UK withdrawal would endanger the most successful international mechanism for protecting rights that currently exists. It would also cut the UK adrift from the case-law of the Court, which over decades has proved to be highly effective in protecting individuals and groups against discrimination. It would make it much more difficult for UK governments to credibly promote respect for international and universal human rights in foreign policy
    

45. 
    Any repeal, amendment or replacement of the HRA by a Bill of Rights could therefore seriously undermine protection for human rights in the UK. Were this to happen, this would be the first time in a mature democracy that a bill of rights would be introduced on the basis of repealing an existing bill of rights rather than adding to one.³⁸ This in turn could undermine the legal rights of vulnerable groups across the board. The HRA and the ECHR taken together provide the foundation for many other areas of equality and anti-discrimination law. They also guarantee legal remedies to vulnerable groups such as children, who are not fully protected by anti-discrimination legislation. Any erosion of the existing legal position threatens all of this.
    

Could a Bill of Rights Enhance the Legal Protection of Human Rights?

46. 
    A legally enforceable Bill of Rights could enhance the legal protection of rights in a variety of ways, if the HRA was left intact and additional rights were enshrined in law. It could for example include a free-standing equality clause, similar to the Equal Protection Clause in the US Constitution. Article 14 of the ECHR only guarantees non-discrimination in the enjoyment of Convention rights: so far, successive UK governments have refused to sign and ratify Protocol 12 to the Convention, which would protect individuals against discrimination by public authorities and guarantee equal enjoyment of ‘any right set forth by law’. However, a free-standing equality clause in a UK Bill of Rights might achieve a similar result, and give a firmer foundation to UK anti-discrimination law.
    

47. 
    A legally binding Bill of Rights could also include enforceable socio-economic rights such as a right to access health care or a right to receive social assistance. It also could contain provisions on children’s rights and the rights of persons with disabilities, perhaps drawing upon the UN human rights standards in these fields.
    

48. 
    In 2008, the Joint Committee on Human Rights produced a comprehensive report which supported the introduction of such a legally binding Bill of Rights, which would leave the HRA essentially intact but also reinforce its provisions with additional rights provisions. If the Commission on a Bill of Rights supported the introduction of such a Bill of Rights, it would enhance rights protection in the UK, especially for vulnerable groups. However, at present, there appears little political support for such an expansive Bill of Rights.
    

Conclusion: The Role of Civil Society

49. 
    It is vital that civil society engage with the activity of the Commission on a Bill of Rights, especially given that the Equality and Human Rights Commission may be unable to be a powerful voice in the process due to budget cuts and other factors. EDF members have a key role to play in highlighting the concerns and perspectives of the groups they work with.
    

50. 
    Serious concerns exist that the Bill of Rights process will result in the erosion of existing levels of human rights protection. In particular, there is a danger that the HRA will be substantially weakened, or that attempts will be made to propose UK withdrawal from the jurisdiction of the European Court of Human Rights. This could have serious consequences for vulnerable groups and others who will be affected by the substantial reduction this would bring about in the legal protection of human rights. It is thus important that civil society organisations contribute their perspective to the Bill of Rights debate, and engage with the consultation exercise that will be carried out by the Commission.
    

APPENDIX A
LIBERTY – ‘HUMAN RIGHTS ACT MYTHS’
(The following material rebutting many of the mths that have been spread about the HRA is taken from Liberty’s website, with thanks - http://www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/human-rights-act-myths/index.php last accessed 6 May 2011.)
There has been very little public education about the rights and freedoms contained in the Human Rights Act and how it works. As a result, many myths and misunderstandings have sprung up about the HRA – including who it does and doesn’t protect and what values it contains.
Exploding these myths is a crucial part of our Common Values campaign. Here are some of the most common false accusations against the Act.
"The Human Rights Act does nothing for ordinary people"
The Human Rights Act protects everyone’s human rights; young and old, rich and poor, yours and mine. Anybody’s privacy could be breached by the prying eyes of the state, anybody can be wrongly accused of a crime, and anybody could fall foul of careless and insensitive decision-making by public authorities. Hopefully this won’t happen to you but if it did, you might find you need to rely on the Human Rights Act to help you.