A British Bill of Rights – a model for the 21st century

Why has the bill of rights debate been in the news?

In February 2007 the Conservative Party announced its Bill of Rights Commission, which will look into the possibility of a home-grown domestic bill of rights. The announcement followed David Cameron’s call last year for a British ‘Bill of Rights and Responsibilities’.((Balancing freedom and security – a modern British Bill of Rights, 26 June 2006, speech to the Centre for Policy Studies)) The Liberal Democrats have long supported a British bill of rights, though unlike the Conservatives they have not been openly critical of the current Human Rights Act 1998 (HRA). The Lord Chancellor recently mounted a campaign to bolster the reputation of New Labour’s HRA. Support for a new project seems optimistic at best, though Gordon Brown has talked of a ‘new constitutional settlement’.

Drafting a British Bill of Rights – where do we start?

It is a political reality that any move to alter our model of rights protection must start with the European Convention on Human Rights (ECHR). The UK’s relationship with the Council of Europe and its ECHR, which the UK signed up to in 1950, is now woven into our legal and political fabric. This applies also to our continuing membership of the European Union, which in practice is conditional on compliance with the ECHR. Any proposed model for a British bill of rights must therefore be ‘ECHR-plus’. A British bill of rights must not detract from any of the rights in the ECHR. The argument is sometimes made that a domestic British bill of rights would encourage the European Court of Human Rights (ECtHR) to allow the UK greater flexibility under its ‘margin of appreciation’. However, the crucial factor remains the substance of legal protection, not the form in which it is presented.((States with their own constitutional bills of rights such as Germany, continue to be subject to close adjudication by the ECtHR. The ECtHR recently ruled that Germany had violated Article 3 where there was forcible administration of emetics to a drug-trafficker to recover a plastic bag he had swallowed containing drugs (Jalloh v. Germany) 54810/00 [2006] ECHR 721))

What are the options for ECHR-plus?

The ECHR, drafted in 1950, could be updated and expanded in several ways.

Modernising and strengthening the ECHR

First, existing limitations and exceptions to ECHR rights could be reduced. Several existing limitations now appear dated and show potential for amendment.((Article 5(1)(e) (on the right to liberty) allows the detention of ‘alcoholics or drug addicts or vagrants’. It is doubtful that a modern bill of rights should include a right to imprison vagrants and alcoholics merely for what they are rather than for what they have done. Also, Article 16, concerning restrictions on the political activities of aliens, appears to go against the principle that fundamental rights (voting rights excepted) belong equally to both citizens and non-citizens (ie those with no voice in the domestic political process)) A single, general limitations clause as found in the South African, Canadian and New Zealand bills of rights, also merits consideration.

A second option lies with unratified protocols to the ECHR. Protocol 12, for example, guarantees a free-standing right to equality. It is designed to advance the ECHR’s protection of equality beyond the limited guarantee of non-discrimination (in application of ECHR rights) under Article 14 ECHR. Free-standing equality rights would provide protection in domestic law equivalent to that in other binding international treaties.((See the International Covenant on Civil and Political Rights (ICCPR), UN Convention on the Elimination of Racial Discrimination (CERD), and the International Covenant on Economic and Social Rights (ICESCR)))

EHCR rights could also be ‘updated’ in line with changing social attitudes. For example, Article 12 ECHR includes a right to marry and found a family, but only for men and women. Given the recent legislation in the UK allowing for civil partnerships for gay couples, the time may have come to debate inclusion of equal rights in a more concrete sense. However, while moral perspectives on such matters have shifted, it may be that certain issues remain part of the democratic political process.

Traditional and common law domestic rights

Rights under this category include fundamental rights which have developed in the courts, such as the common law ‘constitutional’ rights of access to the courts.((R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, at 26 per Lord Steyn: ‘the rights of access to justice … is a fundamental and constitutional principle of our legal system’ ))This is the right through which all others may be protected. There is also the archetypal ‘British’ right of trial by jury, which has come under threat from the current government. The right applies in only five per cent of criminal cases, yet there are deep-rooted cultural and democratic arguments in favour of its retention. It is also guaranteed in the constitutions or bills of rights of other common law jurisdictions including the United States, Canada, New Zealand and Australia. Inclusion of other rights such as due process rights (strong in the Canadian and New Zealand bills of rights) would also underline Britain’s commitment to the rule of law.((The last thirty years has seen major developments in judicial and administrative review as part of our legal and political landscape. Yet their inclusion may be problematic due to their organic growth without constitutional protection.))

Economic, social and cultural (ESC) rights

Many jurisdictions have either included these rights explicitly as justiciable rights (eg South Africa) or developed ways of making them justiciable (eg India, Canada). The UK government recognises their equal importance with the civil and political rights contained in the ECHR but believes they are better enforced through political rather than legal means. UK courts have sometimes strayed into the territory of ESC rights ((Recently, Limbuela v SSHD [2005] UKHL 66 dealt with issues (housing, food, water and health), which may be characterised as socio-economic. See S Fredman, ‘Human Rights Transformed: Positive Duties and Positive Rights’, PL 2006.)) but caution remains over the powers that should be accorded to non-elected judges with their limited expertise and competence in matters concerning resource distribution.

Rights contained in international treaties and other bills of rights

International human rights treaties and comparative bills of rights present a wealth of examples of rights that might be adopted. For example, those in the Convention on the Rights of the Child (CRN) have been the subject of extensive debate in Northern Ireland’s bill of rights process. Another increasingly prominent right is the right to a clean environment – not only universally relevant, but also increasingly central to the UK’s domestic concerns. As well as being guaranteed under international instruments, many domestic bills of rights entrench it or enforce it by other means, including under the right to life (eg in India).

What are the risks of enacting ECHR-plus?

Comparative experience can sound a warning as to over-inclusiveness of bills of rights. In particular, the Northern Ireland bill of rights consultation process has attempted to secure support for women’s and children’s rights as well as cultural (language) rights, but repeatedly failed to gain consensus. The advice of the Chair of the recent consultation process in Victoria, Australia is that it is crucial to maintain an appropriate and achievable objective for the particular society in question.((George Williams, MLR 2007)) The European Charter of Fundamental Rights and Freedoms also illustrates that consensus on terms may come at the expense of a weak and unenforceable document. The Charter includes a plethora of valuable rights, yet the very condition of agreement by state parties in 2000 was that its provisions, with their social and economic (and thus extensive financial) implications, would not be justiciable.

Marrying substance and symbolism – a ‘people’s preamble’?

A preamble was ruled out in debates preceding the HRA, but presents the opportunity to state the purposes and values underpinning a bill of rights and to articulate the constitutional principles it seeks to enforce. A bill of rights will be analysed and interpreted in the courts, but should also aim to be influential outside the courts.

A preamble might also meet the concerns of those who wish to emphasise social responsibility in addition to protection of rights in Britain. Historically, the aim of a bill of rights was to counter the duties already extensively laid down in statutory legislation. The point was to ensure that certain human rights, that need not be ‘earned’, were guaranteed and protected against the state’s legislative omnipotence. The approach to this issue has differed. The Victoria Charter of Human Rights and Responsibilities 2006 stipulates that ‘human rights come with responsibilities and must be exercised in a way that respects the human rights of others’. However, rights are not conditional upon the exercise of responsibilities.((Already, many rights, such as freedom of expression, are expressly limited by the rights of others, as built into the provisions of the EHCR. Article 18 of the German Constitution (the ‘forfeiture’ provision) has been cited as an example of the ‘balance’ to be struck between rights and duties, with negation of the latter impacting on entitlement to the former (see Jonathan Fisher, Conservative Liberty Forum, ‘A British Bill of Rights and Obligations?’ 2006). Yet Article 18 gives a misleading comparison. No applications for forfeiture of a right before the Federal Court have ever succeeded))

Importantly, a preamble may successfully convey the essence of a bill of rights and achieve the aim of being widely understood, by the legal and political community as well as the general population, including children of school age.

What are the next steps?

The legal status of a bill of rights must be addressed. According it special status (preventing repeal after another ‘seven-year itch’) may require some form of entrenchment. Constitutional inventiveness is needed to modify the doctrine of parliamentary sovereignty and bind successive parliaments. Special majorities or the consent of both Houses of Parliament as an exception to the Parliament Acts are options for amendment procedures.

A further point of tension will be whether to give judges new powers. While some supreme courts, such as in the US and Germany, can strike down legislation, many see the advantage of the HRA model as being that our elected representatives have the final say. Parliament has so far re-legislated following every judicial declaration of incompatibility, but might still choose not to.

Finally, process is all-important. Cross-party and popular consensus will key to a successful domestic bill of rights. Britain does not have a tradition of consultation before constitutional change. However, experience in Canada, South Africa and the Australian state of Victoria last year shows how extensive public consultation can inform and influence a bill of rights, ensuring public support which will secure its place in legal, political and public affairs.