Page last updated at 16:34 GMT, Wednesday, 21 December 2011
The case for and against a British Bill of Rights

Alasdair Rendall
BBC Democracy Live

Recent months have seen the UK's place in 'Europe' come under intense scrutiny.

The European Court of Human Rights in Strasbourg
The European Court of Human Rights in Strasbourg is at the centre of debate

However it's not just the institutions of the EU with which the government is re-assessing its relationship.

In 2012, the coalition's commission on human rights is set to report on the case for a British bill of rights.

Following concerns over certain rulings by the European Court of Human Rights, there are calls for the Human Rights Act to be scrapped.

The commission was launched in the spring of this year, fulfilling a coalition compromise on whether the existing Human Rights Act should be scrapped.

It is chaired by a former top civil servant at the Ministry of Justice, Sir Leigh Lewis, and will report to Justice Secretary Kenneth Clarke and the Deputy Prime Minister Nick Clegg.

It was set up amid a row over a 2005 European Court of Human Rights ruling that the UK was unlawfully operating a ban preventing prisoners from voting.

Legal concerns

The Human Rights Act, passed in 1998, enshrines the European Convention on Human Rights into UK law.

The UK is unlike most other democratic states in Europe in not having its own fundamental charter of rights enjoying special constitutional protection.

However, the commission's terms of reference make it clear that a British bill of rights would build on the UK's obligations under the European convention and ensure that the convention's rights continue to be enshrined in British law.

In other words, it will not replace the European convention, although it could perhaps, in time, replace the Human Rights Act.

I would sacrifice our membership of the Council of Europe over membership of the European Union
Charles Tannock, Conservative MEP

The European Court of Human Rights is not an EU institution. Instead, it is overseen by the Council of Europe, of whose committee of ministers the UK currently chairs.

At a recent debate organised at the European Parliament's London bureau, opponents and proponents of a British bill of rights offered their views.

The annual Sakharov Debate on Human Rights ties in with the annual awarding of the Sakharov prize for defenders of human rights, which this year went to people involved in the Arab Spring uprising.

At the debate, the need for change was questioned by some legal experts.

Shami Chakrabarti from Liberty said she supported a British bill of rights, but said the Human Rights Act already fulfilled that role.

"Repackaging the Human Rights Act with a Union Jack is a Botox bill of rights, not a British bill of rights," she told the assembled audience.

She described the act as an "exquisite British compromise", claiming that it preserved parliamentary sovereignty, whilst ensuring the protection of individual rights.

An opposing view was heard from Charles Tannock, a member of the Conservative Party's human rights commission, who said a British Bill of Rights would "extend and protect British liberties within a European framework".

European Parliament debate
Colm O'Cinneide (L) raises concerns over a British Bill of Rights

He had criticism for some of the rulings of the European Court of Human Rights. He said the ECHR "can decide on British issues thanks to Ukrainian and Russian judges" - pointing to ongoing concerns over human rights and judicial independence in these ex-Soviet countries.

Mr Tannock, the Conservative party's foreign affairs spokesman in the European Parliament, also said certain decisions by the ECHR were leading all unpopular decisions to be blamed on "Europe".

"It's made Europe a vitriolic issue," he warned. And he went further: "I would sacrifice our membership of the Council of Europe over membership of the European Union."

But the issue has become more than a political issue, with legal and academic experts taking a key role in the debate over a British bill of rights.

'Enhanced' protections

One of the key arguments used by people in favour of a British bill of rights say it would "enhance" the protections already offered through the European Convention of Human Rights.

However Richard Bellamy, the director of UCL's European Institute, described this as lacking in clarity, pointing to issues such as "a right to health" as being excessively vague. Meanwhile Colm O'Cinneide, a human rights lawyer, repeated concerns about a lack of specification over what should actually be in a British bill of rights.

European Court of Human Rights
Established: 1959
Location: Strasbourg
Number of judges: 47
President: Nicolas Bratza
Overseen by: Council of Europe, NOT European Union

"We have to realise that each extension of a bill of rights gives courts more powers to intervene," he stated.

He lamented the increasing attacks on the European Court of Human Rights, highlighting that it had been vital in securing a number of civil rights, such as the legalisation of same-sex activity in Northern Ireland, and the scrapping of a DNA database.

The arguments over a British bill of rights has been another Europe issue that sees differing views within the government.

Although the Conservatives want to replace the Human Rights Act, Liberal Democrat leader and Deputy Prime Minister Nick Clegg has insisted it must remain in force.

As a postscript to this debate, the year ended with Justice Secretary Ken Clarke telling a joint committee of MPs and peers that a British bill of rights might simply re-state the UK's current commitments under the European Convention on Human rights, producing "no change at all".

Admitting that he personally had "never seen the need for a bill of rights in the past" he said the commission needed to be established because there were "a range of views within the government".

Yet again the issue of the UK's relationship with 'Europe' goes right to the heart of the coalition.

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