Bill of Rights Importance Published in Politics Review Volume 17 4 April 2008 The Bill of Rights debate has found itself back on
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Bill of Rights Importance Published in Politics Review, Volume 17(4), April 2008 The Bill of Rights debate has found itself back on the political agenda. David Cameron has pledged to “abolish the Human Rights Act and put a new British Bill of Rights in its place”, a commitment he restated at the Conservative Party Conference this year. Labour‟s recent Green Paper on constitutional reform, „The Governance of Britain‟, suggested that a “Bill of Rights and Duties could give people a clear idea of what we can expect from public authorities, and from each other, and a framework for giving practical effect to our common values”. Given this cross-party support for a Bill of Rights for the UK, the argument now seems to be what kind of bill of rights? Should we be defending the Human Rights Act (HRA) as a British Bill of Rights? Should we be looking to build on the HRA as it seems Gordon Brown is now considering. Or should we start again; scrap the HRA and write our own „home-grown‟ Bill of Rights as David Cameron has pledged? Bill of Rights The original impetus for the HRA was a debate in John Smith‟s Labour Party about creating a British Bill of Rights. The intention then was to incorporate the European Convention on Human Rights (ECHR) into UK law followed by a British Bill of Rights. As the UK government had been bound to comply with the ECHR since 1953, this was seen as the quickest and simplest way of introducing a substantial package of human rights into UK law. Once Labour were in power it became clear that they had lost their appetite for carrying through the second stage of the process (outside of Northern Ireland that is). But the earlier debates about creating a British bill of rights led to a push to draft the HRA in lieu of a bill of rights and the Act was designed to be far more than an incorporated treaty. As Jack Straw said in 2000 when the HRA came into force, it was “the first Bill of Rights this country has seen for three centuries”. The legal and constitutional characteristics that make up a bill of rights are present in the HRA. First, like most post-war bills of rights, the HRA draws its principles from the Universal Declaration of Human Rights and the broad ethical values it contains which are partly reflected in the ECHR. It is different to usual „black letter‟ law statutes in that it contains broadly expressed, open textured values. The Act has to be interpreted generously and purposefully, rather than narrowly and literally, to reflect its spirit. Second, the rights in the HRA are binding on the government. The executive and all public authorities, including the courts, are prohibited from acting incompatibly with rights in the HRA. Third, the HRA provides redress for violations of the rights. It sets out in fairly simple terms the rights everyone in the jurisdiction of the UK can use to hold public authorities to account, both inside and outside the court. Where unjustified violations of those rights occur, the court may grant a remedy. The HRA is a „higher law‟ to which all other laws must conform where possible. However, the courts have no power under the HRA to strike down incompatible laws. Instead they can make a declaration of incompatibility, which leaves it to parliament to decide whether and how to proceed. This so-called „dialogue model‟ was a response to criticisms of bills of rights in the Labour Party about handing over too much power to judges. The model adopted in the HRA protects the doctrine of parliamentary sovereignty but it also addresses the „democratic deficit‟ of bills of rights with strike down powers, where judges are given the power to determine the meaning of the broad values in the bill of rights and to repeal laws which don‟t conform to that meaning. So if the HRA is our bill of rights, it is important to ask why have there been calls recently for a British Bill of Rights? Why are there calls for a British Bill of Rights? Bills of rights are not just legal and constitutional documents. They also play a symbolic role, representing the values a country stands for and the common principles we share. Yet, the HRA has not been „owned‟ by British people in this way. According to Mori and ICM polls, public support for introducing a bill of rights in Britain has remained consistent over the past 15 years at around 80%, suggesting that the public do not see the HRA as our bill of rights. This is not surprising given the way the HRA was introduced and how it has been treated since by both the government and the media. There was no public consultation on the Act prior to its introduction, unlike countries such as Canada, New Zealand and South Africa whose bills of rights were preceded by years of consultation. Instead, to most people the Act appeared from nowhere, with very little work done on the ground to prepare the public for its introduction. In addition, there was no statutory human rights commission created alongside the Act to promote it or explain its role and purpose. This has now been rectified with the Equality and Human Rights Commission opening its doors at the beginning of October 2007. It is the first statutory body charged with promoting the values and standards in the HRA. The lack of a strong narrative on the HRA from either a commission or the government, who increasingly downplayed the Act‟s significance as it revealed its potency, left it wide open to exploitation from the media. The HRA has found itself subject to a relentless onslaught from a tabloid press seeking easy copy. Until recently there was no government rebuttal unit to set the record straight about the many myths and misrepresentations circling about the Act and its application. The HRA has also suffered from bad timing. The shocking events of 11 September 2001, less than a year after the Act came into force, changed the political landscape at a time when the Act was still finding its feet. The resulting national and international preoccupation with security meant that the Act faced major challenges before it had time to bed down and become an accepted part of the constitutional scenery. The government soon came to view the HRA as an obstacle in the fight against terrorism. Their frustration that the judiciary declared in breach of the HRA anti-terror laws which indefinitely detained foreign suspects, led to resentment of the Act. This is the political climate the Act finds itself in and that has led the leader of the opposition to call for the Act to be repealed and replaced with “a modern British Bill of Rights”. So what does this mean for the HRA and for the future of human rights in Britain? The implications for human rights in Britain The main driver behind Cameron‟s call for a British Bill of Rights seems to be the desire to curtail interference from the European Court of Human Rights, in particular over the prohibition on deporting foreign nationals to countries where there is a real risk they may be tortured (even though the ban on such deportations stemmed from a European Court of Human Rights ruling dating back to 1996, before the HRA was drafted). Cameron wrote in the Sunday Times in 2006, “It is time to replace the Human Rights Act with a British bill of rights that will enable ministers to act within the law to protect our society. If MI5 tells the government that a foreign national is a dedicated terrorist and a danger to national security, then the home secretary should be free to balance the rights of the suspect with the rights of society as a whole and proceed with deportation if necessary.” In reality, if the UK is to remain a member of the Council of Europe and therefore subject to the ECHR, as Cameron has pledged, then a domestic bill of rights won‟t provide a get out clause from the absolute prohibition on torture. If a British Bill of Rights were weaker and the rights more qualified than the ECHR, the government would find themselves falling foul of the ECHR in Strasbourg. The European Court would continue to provide a backstop, as the protector of a minimum standard of basic rights across Europe. There is also a reference to “citizen‟s rights” in both the Conservative and Labour proposals. Cameron has said he wants to replace the HRA with “a clear articulation of citizen‟s rights that British people can use in British courts”. Labour‟s proposal for a British Bill of Rights and Duties is included in a section of the recent Governance of Britain Green Paper called Britain’s Future: the citizen and the state and is peppered with references to British citizens. The allusion to citizen‟s rights seems to imply a restriction on who would be eligible for the protection of a British Bill of Rights. The philosophical foundation of human rights is that everyone is entitled to fundamental rights simply because they are human. Some rights, such as voting rights, are dependent on citizenship (or residence) but the fundamental rights in domestic bills of rights around the world generally apply to everyone within the jurisdiction of a state, regardless of citizenship. This is the case with the HRA. It is so far unclear how far proposals for citizen‟s rights will be taken and what this will mean for the rights protected under the HRA. It is also relevant that the Labour proposals are for a British Bill of Rights and Duties. The Governance of Britain Green Paper states that the bill could “provide explicit recognition that human rights come with responsibilities and…make explicit the way in which a democratic society‟s rights have to be balanced by obligations”. It could also provide greater clarity to “the importance which must attach to public safety”. Public safety and the balancing and limiting of rights where necessary are already written into the HRA, and it is unclear how much further the Bill of Rights and Duties would take this. Very few bills of rights contain legally enforceable duties as these are contained in a mass of other laws. Some would argue that there is a place for reference to duties in the preamble to a bill of rights, as in the Victoria Charter of Rights and Responsibilities Act 2006 which recognises that rights come with responsibilities and must be exercised in a way that respects the rights of others. There is, of course, a case for consulting on additional rights to supplement those in the HRA, and the recent debates about a British Bill of Rights have opened up this opportunity. The Conservatives have suggested that a British Bill of Rights could include the right to trial by jury, which is absent from the HRA. They have not suggested many more additional, British rights as the HRA already protects the standard rights included in bills of rights across the globe. A „wish list‟ of rights to supplement the HRA might include a stronger equality clause, specific rights for children or economic and social rights. The latter consistently come out on top when the public are polled on which rights should be included in a bill of rights. Concerns about excessive litigation and the justiciability of these rights would have to be addressed when framing them. The act of consulting on and adopting a bill of rights is a symbolic exercise and can be as important as the rights themselves. There is a strong case for taking this path if we are able to produce a document that will act as a unifying force in our diverse society, that will be owned by the British people and relied on in times of national tension, as with the American Bill of Rights. But we will not succeed with these aims if we turn our backs on the international human rights treaties on which modern bills of rights are based and ignore the contributions of many countries and cultures to the human rights values they enshrine. It is also easy to underestimate the consultation process that would be required for this task. It would be a long and complex process. Whereas the HRA could be repealed in any instant, a new bill of rights may take years to produce or may never make it onto the statute books. As Director of Liberty, Shami Chakrabarti, has said, beware the perils of „permanent revolution‟. “The really difficult challenge”, according to Francesca Klug, Professorial Research Fellow at the Centre for the Study of Human Rights, LSE, “is not to perpetually seek for the promised land but to bed down what has already been achieved”. The HRA was intended as the first step on a journey but it was a step that as a nation we did not all take together. Perhaps now is the time to pause and consider how we can all catch up. There is a lot of work that needs to be done to promote the Act and educate us all about its true role and purpose. This will help to take human rights out of the hands of lawyers and back into the hands of the people, where they belong. Perhaps when that work has progressed and the Act has achieved more of its intended aims, we would be better placed to judge whether and how to take that second step. Helen Wildbore Human Rights Futures Project, LSE Further reading Francesca Klug, „A Bill of Rights: what for?‟, in Towards a New Constitutional Settlement, Chris Bryant MP (ed), The Smith Institute, 2007. Francesca Klug, „A Bill of Rights: Do we need one or do we already have one?‟, Public Law, Winter 2007.