The historical context
14. We think it is important at the outset to
refer briefly to the historical context in which today's debate
takes place, because this throws some light on current disagreements
about what Bills of Rights are for.
15. The focus of the classic Bills of Rights,
from Magna Carta in 1215 to those of the 17th and 18th
centuries (the English Bill of Rights of 1689, the French Declaration
of the Rights of Man and the Citizen of 1789 and the American
Bill of Rights of 1791), was the protection of the individual's
liberty against the intrusive and interfering power of the overweening
state. Liberty was conceived as negative liberty, the absence
of restraint. It remains the view of many today that the protection
of human rights by Bills of Rights should be confined to this
set of broadly Enlightenment values, and that this is the only
legitimate purpose of a Bill of Rights.
16. In the second half of the 20th
century, however, conceptions of human rights began to change.
In 1941, US President Franklin D. Roosevelt made his famous "Four
Freedoms" speech in his State of the Union address to Congress,
at the height of the Second World War:
In the future days, which we seek to make secure,
we look forward to a world founded upon four essential freedoms.
The first is freedom of speech and expression …
The second is freedom of every person to worship
God in his own way …
The third is freedom from want …
The fourth is freedom from fear …[9]
17. The inclusion of freedom from want and freedom
from fear in this list of the four essential freedoms, from the
mouth of the President of the country with the most cited of the
classical Bills of Rights, was a significant moment in the history
of human rights protection. It redefined freedom to include not
merely absence of restraint but absence of want and fear. These
freedoms went beyond the traditional American constitutional values
protected in the American Bill of Rights to embrace security as
a foundational value, including economic security.
18. In 1944 President Roosevelt made his equally
famous "Second Bill of Rights" speech, in which he suggested
that America had now effectively accepted a second Bill of Rights,
embracing freedom from want and freedom from fear:
This Republic had its beginning, and grew to its
present strength, under the protection of certain inalienable
political rights—among them the right of free speech, free
press, free worship, trial by jury, freedom from unreasonable
searches and seizures. They were our rights to life and liberty.
As our Nation has grown in size and stature, however—as
our industrial economy expanded—these political rights proved
inadequate to assure us equality in the pursuit of happiness.
We have come to a clear realization of the fact that
true individual freedom cannot exist without economic security
and independence. "Necessitous men are not free men."
People who are hungry and out of a job are the stuff of which
dictatorships are made.
In our day these economic truths have become accepted
as self-evident. We have accepted, so to speak, a second Bill
of Rights under which a new basis of security and prosperity can
be established for all regardless of station, race, or creed.
Among these are:
- The right to a useful and remunerative job in
the industries or shops or farms or mines of the Nation;
- The right to earn enough to provide adequate
food and clothing and recreation;
- The right of every farmer to raise and sell his
products at a return which will give him and his family a decent
living;
- The right of every businessman, large and small,
to trade in an atmosphere of freedom from unfair competition and
domination by monopolies at home or abroad;
- The right of every family to a decent home;
- The right to adequate medical care and the opportunity
to achieve and enjoy good health;
- The right to adequate protection from the economic
fears of old age, sickness, accident, and unemployment;
- The right to a good education.
All of these rights spell security. And after this
war is won we must be prepared to move forward, in the implementation
of these rights, to new goals of human happiness and well-being.
[10]
19. Roosevelt's "Four Freedoms" were
explicitly incorporated into the preamble to the Universal Declaration
of Human Rights (UDHR):
Whereas disregard and contempt for human rights have
resulted in barbarous acts which have outraged the conscience
of mankind, and the advent of a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and want
has been proclaimed as the highest aspiration of the common people.[11]
20. The UDHR itself was given binding legal force
in the two subsequent UN treaties, the International Covenant
on Civil and Political Rights ("the ICCPR") and the
International Covenant on Economic, Social and Cultural Rights
("the ICESCR"), which, together with the UDHR, comprise
the so-called "International Bill of Rights".
21. Today one of the central questions for any
parliamentary democracy considering whether to adopt a Bill of
Rights is whether that Bill of Rights should seek to reflect,
so far as possible, both of these human rights traditions
in the international human rights instruments. The response to
our inquiry has certainly demonstrated that there is considerable
support in the UK for both of these conceptions of the purpose
of bills of rights. In our inquiry we have sought to explore the
scope for agreement, across the political divide, that a Bill
of Rights in a modern parliamentary democracy should attempt to
combine these two traditions, by including both strong
protection for traditional civil liberties as well as appropriately
recognising the fundamental importance of the more recently recognised
economic and social rights, such as the right to education and
health.
How much consensus?
22. The contentious nature of a Bill of Rights
also leads us to consider how much consensus is required in order
for constitutional change of this kind to be successful. The HRA
was passed with cross-party support. The Justice Secretary, who,
as Home Secretary at the time, was responsible for piloting the
Human Rights Bill through the House of Commons, told us that he
was "anxious to achieve a situation where we had a consensus
so far as was possible between the parties".[12]
We welcome his recognition that:
Whilst constitutional changes may well be contentious
… they are more likely to endure if you achieve a broad measure
of agreement and should not be partisan tools for any one party.[13]
23. The Human Rights Minister showed the same
commitment to proceeding by consensus as far as possible: "Any
constitutional change as far as possible ought to be consensual
in basis."[14]
24. The Justice Secretary elaborated a little
on what he meant by consensus:
By consensus on this I do not mean unanimity any
more than there was unanimity over the Human Rights Act, but we
moved by a careful process of deliberation to a much broader consensus
than we had started with.[15]
25. We agree with those who
say that a high degree of consensus is desirable. We do not, however,
think that there need be unanimity about every aspect of a Bill
of Rights. There needs to be sufficient consensus across party
lines to make the process of adopting a Bill of Rights a truly
constitutional event, rather than a party political one.
In this Report we seek to identify those areas on which we detect
a sufficient consensus to proceed, however cautiously, to the
next stage of consulting about the detail of a Bill of Rights.
We hope that our outline of a Bill of Rights and Freedoms will
not only help to focus the discussion but also make it easier
to identify the areas in which the necessary degree of consensus
already exists.
1 The Governance of Britain, Cm 7170 (July 2007)
(hereafter "Governance of Britain"). Back
2
Prime Minister's statement on constitutional reform, HC Deb 3
July 2007 col. 815 at col. 819. Back
3
The Prime Minister's interest in the issue was foreshadowed in
a number of speeches before he became Prime Minister: see e.g.
speech of Gordon Brown, Chancellor of the Exchequer, to the Fabian
Society, "The future of Britishness", 14 January
2006, and at the launch of his campaign for leadership of the
Labour Party, 11 May 2007. Back
4
See e.g. speech of David Cameron , Leader of the Opposition, to
the Centre for Policy Studies, "Balancing freedom and
security - A modern British Bill of Rights", 26 June
2006; speech of Dominic Grieve, shadow Attorney General, to the
Conservative Liberty Forum, "Liberty and Community in
Britain", 2 October 2006. Back
5
See e.g. Liberal Democrat Policy Paper 83, For the People,
by the People, August 2007 at para. 4.2.4. Back
6
State of the Nation 2006, Joseph Rowntree Memorial Trust
(poll conducted by ICM between 21st and 30th
October 2006). Back
7
See para. 99 below. Back
8
Annex 1. The outline Bill only contains the most significant substantive
provisions and omits many of the more detailed but largely technical
provisions that would also be necessary in any Bill of Rights.
Annex 2 contains Explanatory Notes to the outline Bill. Back
9
Annual Message to the Congress on the State of the Union,
6 January 1941. Back
10
Annual Message to the Congress on the State of the Union,
11 January 1944. Back
11
General Assembly Resolution 217 A (III) of 10 December 1948. Back
12
Q 420. Back
13
Ibid. Back
14
Q 470. Back
15
Q 499. Back
