37. Letter from the Rt Hon Jack Straw
MP, Secretary of State for Justice and Lord Chancellor
Thank you for your letter of 27 May 2008, following
up on a number of issues not covered in the time available at
the evidence session on the Bill of Rights and Responsibilities
on 21 May.
The Government looks forward to considering
the JCHR's report on its inquiry into a Bill of Rights and drawing
on its expertise in the forthcoming debate. My responses to your
questions are as follows:
1. Will the responsibilities [in a British
Bill of Rights and Responsibilities] be enforceable in any way
against individuals?
The question of the legal effect to be given
to responsibilities in any Bill of Rights is linked to the legal
effect to be given to the Bill as a whole. Work on this is developing,
but we are looking at the possibilities of framing certain responsibilities,
for example the responsibility to respect the rights of others,
as interpretive principles. Equally, we are aware that the law
features numerous enforceable duties upon individuals, for example
in relation to parents sending their children to school, and it
is not our intention to cut across the existing statutory framework
in such cases. As I said in my evidence before the Committee,
there has always been an implicit, albeit asymmetrical balance
between rights and responsibilities, and between liberties and
duties. There may be value in articulating and elevating some
of these responsibilities so that they sit alongside rights in
one place. Responsibilities need not take enforceable form in
order to achieve this objective.
2. What will the relationship between any
British Bill of Rights and the international human rights treaties
to which the UK is a party? For example, would you expect it to
include a provision similar to s.3 of the Human Rights Act, requiring
it to be interpreted compatibly with the UK's international human
rights obligations, or a similar provision to s.2 of the Human
Rights Act, requiring courts to take into account other international
and regional human rights standards when interpreting the Bill
of Rights?
I would not expect a Bill of Rights to affect
the basic rule that international treaties to which the UK is
a party have to be incorporated by Parliament in order to become
part of domestic law. That said, of course, the courts can, and
do, take international treaties into account in certain circumstances,
and, again, I would not expect this to change.
3. Can you provide further information on
what the consultation process will entail?
Details will be given in the Green Paper.
4. What dedicated financial and human resources
are available for the process?
The Bill of Rights and Responsibilities is part
of the broader Governance of Britain programme. The costs of the
consultation process will be met from the resources allocated
for the wider programme.
5. What is the timetable for the consultation
process on a Bill of Rights?
We remain committed to publishing a Green Paper
on a Bill of Rights and Responsibilities soon. We expect the engagement
process to start from the date of publication and run for several
months.
6. How will you ensure that the process does
not simply involve "the usual suspects" but is relevant
to and involves members of the public (including harder to reach
constituencies)?
Deliberative mechanisms can help involve a broad
range of members of the public and harder to reach constituencies,
because they can include a general sample of the population, but
they also allow for a more thematic approach; so specifically
targeting those groups (or their representatives) who might not
normally take part in a Government led consultation.
7. What will be done to inform people about
the process so that they can contribute in a meaningful way?
We want the process to engage as many people
as possible from all walks of life. Whatever mechanisms we adopt
must be open and transparent and we will aim to ensure participants
are aware in advance of the degree of influence they have. We
will ensure there is a shared understanding of what is needed
from the engagement mechanisms. It is worth noting that any consultation
process must be consistent with representative democracy and feed
into Parliamentary consideration of issues.
8. Will the consultation only cover the content
of a Bill of Rights, or will it be concerned also with enforceability,
justiciability and implementation?
I expect any consultation to be broadly based
on the Green Paper's content in which we are likely to cover these
issues, even if only in general terms.
9. What degree of consensus will you be looking
for and how will you ascertain whether there is such consensus?
We anticipate informed and lively political
debate in Parliament as well as a wide public debate. We believe
the Government's proposals will command wide support as presenting
a mature and progressive way of building upon the achievements
of the Human Rights Act. And, like the Human Rights Act itself,
we hope the Bill of Rights and Responsibilities will be passed
into law with the support of all the main political parties.
10. Do you propose that there will be a role
for any body, independent of Government, in considering the range
of options for a Bill of Rights and making recommendations?
We have no plans to set up any new body. There
is a wide range of independent statutory and non-statutory bodies
in this field already.
11. What role, if any, do you envisage for
the Equality and Human Rights Commission in this process?
We hope the Equality and Human Rights Commission
will play a full and active part in the public debate around our
proposals.
12. Do you see any ways to strengthen the
role given to Parliament in a Bill of Rights and Responsibilities,
compared to the Human Rights Act? For example, should the Bill
provide for a power of legislative override by Parliament, such
as that contained in the Canadian Charter? Should it go beyond
the s.19 of the Human Rights Act by requiring that reasoned statements
of compatibility accompany every Bill, as does the Victorian Charter
of Rights and Responsibilities? Should it require the relevant
Minster to lay before Parliament, within a prescribed time, a
detailed written response to a judicial declaration of incompatibilty
with the Bill (as also required by the Victorian Charter)?
As I made clear in evidence, I am proud of the
architecture of the Human Rights Act in that it strikes the balance
between protection of fundamental rights whilst preserving Parliamentary
sovereignty. Section 19 of the HRA provides a sound mechanism
by which Parliament can examine the compatibility of proposed
legislation with Convention rights. Whether any new rights should
be subject to the same requirement is one of the issues on which
we would welcome views.
13. How important is a diverse judiciary
to the success of any British Bill of Rights?
A more diverse judiciary with increased understanding
of the communities it serves will contribute to increased public
confidence in the justice system. This will be especially important
in the context of a Bill of Rights and Responsibilities, which
is of fundamental importance to our liberties and to our constitutional
settlement.
14. How could the pool of people from whom
judicial appointments are currently made be widened in practice?
The Ministry of Justice, judiciary and the JAC
are committed to increasing the diversity of the legal profession
and the judiciary at all levels. The Ministry of Justice is working
closely with the Judicial Appointments Commission and the Judiciary
to increase the diversity of the judiciary through a trilaterally
agreed Judicial Diversity Strategy. Work underway as part of the
strategy includes legislative chances to widen the pool of those
eligible for judicial appointment; judicial workshadowing and
mentoring schemes; the JAC's Diversity Forum; outreach events
by the JAC; and work to support Diversity and Community Relations
Judges in engaging with communities The statistics for the JAC's
Selection Exercises for 2007-08 demonstrated that the JAC had
successfully attracted a higher proportion of applications from
women and those from BME groups than ever before (35% of applicants
for legal judicial posts were women, and 12% were from BME groups).
The Tribunals Courts & Enforcement Act 2007
widened the pool of candidates even further, by reducing the number
of years of practice/qualification in law needed to be eligible.
However, it is clear that we still have a long way to go before
we have a judiciary that fully reflects the communities it serves.
All measures that could help to improve diversity in the judiciary
are being considered. This will ensure that we maintain the highest
possible standards of those appointed.
15. Can you confirm that the UK Government
had no discussions with the Scottish Government about the Bill
of Rights prior to 10 March 2008?
16. What discussions have the UK Government
had since March 2008 with the Scottish Government about the Bill
of Rights?
17. How does the UK Government plan to involve
the devolved assemblies (Northern Ireland, Scotland and Wales)
in future discussions on a Bill of Rights?
The Government had a number of exchanges at
official level prior to the 10 March and officials met with their
counterparts in Edinburgh in April, where they also had an informal
discussion with the new Scottish Human Rights Commissioner. My
officials went to Northern Ireland in March for a meeting with
the then Chair of the Bill of Rights Forum, Chris Sidoti, and
Professor Monica McWilliams, the Northern Ireland Human Rights
Commission's (NIHRC) Chief Commissioner. Professor McWilliams
and a number of her commissioners have since met Michael Wills.
My officials plan to meet their counterparts in the Welsh Assembly
Government shortly.
We will continue to engage with the devolved
administrations and legislatures given the important contribution
they can make to a discussion about rights and responsibilities
and I hope that they will be involved in the consultation process
over the coming months.
18. Do you foresee any problems with having
a national Bill of Rights alongside separate Bills of Rights for
Northern Ireland and Scotland?
19. How would this work in practice?
The Government believes it is possible to take
forward work on a Bill of Rights and Responsibilities in such
a way as to respect the UK's governance arrangements. There could,
for example, be a principled framework on rights and responsibilities
but still with freedom of choice on those subjects that are within
the legislative competence of the devolved legislatures. A real
benefit of this approach is that human rights would be better
and more consistently understood and received across the UK, emphasising
the shared nature of the important principles which bind us together.
These are of course matters on which we wish to consult and so
it would be premature to go into detail on how such an approach
might work in practice at this stage.
17 June 2008
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