In the latest contribution to the OK debate on Labour after Brown, Guy Aitchison looks at proposals for a progressive new Bill of Rights for Britain.
You can find the rest of the Labour after Brown series in the box on the left of the site.
The Joint Committee on Human Rights report (pdf) on a UK Bill of Rights was released on Sunday. It was in August when Parliament was not sitting. Nonetheless, it is an important reminder that somewhere, amidst the slow train wreck of Brown's Government, the Governance of Britain agenda with which he launched his premiership limps on.
The Joint Committee is made up of 11 MPs and peers from the Tories, Labour and the Lib Dems with one cross-bench peer. Understandably, much of the media reaction has focussed on their recommendations that social and economic rights be included in any new bill. This is the second JCHR report that has shown itself open to movement on social and economic rights; membership was different last time. That Parliament is now prepared to think seriously about a Bill of Rights containing welfare rights as well as other rights outside the "classic" list of liberal rights in the European Convention is something to be welcomed. The new report signals a remarkable positive shift in the attitudes of parliamentarians since the advent of the Human Rights Act ten years ago. The Tory peer Lord Onslow, for example, started out on the Committee as something of a human rights sceptic. Today he is amongst the first to raise "Convention points" in the Lords and has contributed to a report which may serve as a landmark in the development of our constitutional discourse.
In what follows I try to set out in some detail what the parliamentary proposals are and what they might mean in practice.
Why do we need a Bill of Rights?
The report begins by noting the unusual "cross-party consensus" on the need for a Bill of Rights, but rightly points out that the parties are very much divided over what rights it should contain; how it should work and how it should relate to the Human Rights Act. The report gives short shrift to Tory claims that a British Bill of Rights could be a replacement for the Human Rights Act. As a signatory of the European Convention on Human Rights, the UK would still be subject to the authority of the European Court in Strasbourg (a condition of EU membership). And there is, they note, no evidence to support David Cameron's claim that the Court would be more lenient on the UK in cases where "national security" is invoked to violate rights (allowing us, for example, to deport foreign nationals to countries that practice torture) simply because the UK would have its own domestic Bill of Rights. The absurdity of the Tory proposals is nicely summed up in Francesca Klug's evidence to the Committee: "I am not aware of any Bill of Rights in the modern world, post 1948, where there has ever been a discussion about introducing one on the basis of wanting to curtail a human rights instrument or Bill of Rights that is already in place".
The cross-party group are equally scathing on Government thinking. They welcome Ministers' recognition that any new Bill of Rights should be "HRA-plus" but lament the "absence of clarity" in the Government's reasons for embarking on such an ambitious project. As I've noted before, the Government seem to see a Bill of Rights as an opportunity to correct myths perpetuated by the media that the Human Rights Act is a "criminals' charter" imposed on us by Europe. This is one of the reasons for Ministers repeatedly referring to "responsibilities", "Britishness" and the links with citizenship education. Another is their instrumental spirit in seeking to find a means of "solving" the national question by imposing a UK solution to pledges of allegiance without either a federal approach with an English or a democratic constitution.
As the Committee rightly notes, these inward-looking justifications run counter to the spirit of human rights understood as universal and non-negotiable entitlements that apply equally to all human beings. However laudable (or not) the government's aim, human rights do not provide a short cut. The Committee recommends that the Government drop any references to "duties" and "responsibilities" and acknowledge that bills of rights protect rights which people have by virtue of being human, and not by virtue of their citizenship status. The Government should, they urge, "seek proactively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true".
Devolution
Unlike the Government, the Committee recognises the "difficulties associated with establishing a Bill of Rights on the basis of a statement of "British" values which may or may not be accepted by the people who consider themselves to be for example, "English", "Scottish", "Irish" or "Welsh", but not "British". For this reason, and so as to break the link with citizenship and include Northern Ireland, the Committee recommends the term "UK" Bill of Rights rather than "British" Bill of Rights. Devolved governance does not preclude the enactment of a UK-wide bill, but the devolved administrations should be involved as soon as possible in debating its content. They would then be free, like Northern Ireland, to develop their own more specific and perhaps more generous human rights instruments should they choose to do so.
New rights
The Committee recommends a short Preamble to the Bill underlining the UK's commitment to democracy and the rule of law rather than an extensive list of "British values" as proposed by the Government. They also recommend the right to trial by jury, the right to administrative justice and the right to equality as well as a provision requiring courts to pay due regard to international law. The report also contains helpful and, in this context, path-breaking recommendations on the inclusion of children's rights as well as so-called "Third generation rights", like the right to a healthy environment
Social and economic rights
The case for including social and economic rights in any new Bill of Rights is overwhelming. When asked, the British public rank the right to healthcare as amongst the most important rights we have. But this demand isn't matched by the legal reality. As scholars like Keith Ewing have shown, judges have developed a jurisprudence which works in the interests of property and against the interests of the poor and organized labour. If done properly, the inclusion of "positive" social and economic rights in a UK Bill of Rights could serve to counter-balance the libertarian "negative" rights contained within the common law and the ECHR. But the Committee's proposals fall far short of the radicalism required.
Tom Griffin reported in OK on Sunday Committee chair Andrew Dismore's intriguing claim to have found a solution to the tricky question of how the inclusion of social and economic rights in such a document could be squared with "our tradition of parliamentary democracy." They reject the Government's vague and essentially meaningless talk of a list of social "aspirations" but also the possibility of justiciable social and economic rights along the lines of Finland and certain Eastern European countries. This they label "constitutionally inappropriate". The model they prefer is a "hybrid model" similar to that found in South Africa. Under this scheme "individuals do not have legally enforceable rights against the State...but resort to the courts might be possible if one particular vulnerable group was being neglected altogether, because the State is failing to take reasonable legislative and other measures, within available resources, to achieve progressive realisation of the rights". Courts would be prohibited from ruling on the appropriate distribution of resources, which, they note, would raise questions of democratic legitimacy and institutional competence.
The rights which the Committee goes on to list under the headings of "Healthcare", "Education", "Housing" and "An adequate standard of living", would provide a very low standard, however, when compared to international rights documents like the EU Charter (which the UK has opted out of). And trade union rights are nowhere to be found. It is nevertheless a sign of progress that social and economic rights have now become "thinkable" in elite constitutional discourse. See Claire O'Brien here in OK on why this should be so.
Constitutional status
Another contentious issue which any new Bill of Rights has to face is how it should define the relationship between the courts, Parliament and the executive. The report does not propose any meaningful departure from the doctrine of parliamentary sovereignty. It rejects the idea of entrenching a Bill of Rights against subsequent amendment or repeal and argues against any system of judicial review which would confer on the courts the power to strike down legislation. Rightly in my view, the Committee prefers the parliamentary model of human rights protection contained in the HRA which seeks to recognise the disputed theoretical nature of rights (no one nowadays thinks they're "self-evident", at least not in their concrete application) and prevent rights-violations occurring before legislation is enacted rather than simply relying on post facto judicial review to remedy violations. Ideally parliamentary oversight of protected rights ensures that the scope and content of rights is, in the final instance, decided on by democratic processes with the judicial "declaration of incompatibility" serving as a political, rather than a legal check, on the power of Parliament.
The problem, as OK readers will be aware, is that Parliament has become - in Diane Abbott's memorable phrase - a "bazaar" incapable of checking the abuses of Government. That a proposal on 42 days pre-charge detention - a huge human rights and civil liberties breach - was passed through the Commons on a tiny majority and could be forced through the Lords through use of the Parliament Act, shows how inadequately human rights are protected in the UK under the current regime.
The Committee makes some useful recommendations on how to strengthen Parliament's role in rights-protection vis-a-vis the executive, though I fear they do not go far enough. They suggest, for example, that ministers introducing a bill into Parliament should be required to give reasons for their belief that the bill is consistent with protected rights and, if it is not, why they propose to legislate inconsistently. They also recommend that when the judiciary rules that legislation is incompatible with protected rights, the Government should be required to bring forward a formal response to Parliament within a defined timetable and initiate a debate on its response. These proposals would strengthen parliamentary oversight and should be adopted for that reason, but they would not address the real problem of the executive being able to guillotine parliamentary debate and force draconian measures through the Commons with its whipped majority. If Parliament is to truly act as the guardian of liberty then far-reaching democratic reform is needed to make the executive accountable to it.
Process
Finally, to arrive at the new Bill of Rights, the Committee proposes an open and deliberative process which takes into account similar processes run successfully in Northern Ireland and Victoria. This, of course, has the potential to be a profoundly radical idea as such processes only work when the deliberative body - which would be a large, representative cross-section of members of the public - can actually take decisions. It would have to be empowered by Parliament but this would also introduce another principle of sovereignty.
