Declaratory or aspirational?
64. The tone of many of the Government's initial
statements about a Bill of Rights suggested that it was intended
to be merely a consolidating measure: namely a list of the human
rights already held and the responsibilities already owed by citizens.[83]
65. Some witnesses, however, suggested that any
Bill of Rights should be an aspirational document which looks
to the future and does not merely encapsulate the present. For
example, as Claire Methven O'Brien, from the European University
Institute, Florence, contended:
Constitutions do not merely regulate the exercise
of power. Whether explicitly or by implication, they also specify
its ends and, in doing so, they help shape our collective political
and ethical horizons. Viewing historical constitutions and Bills
of Rights in hindsight, it is easy to forget that, during their
own times, they did not merely gather together and repeat aspects
of the legal status quo. They encapsulated radical political aims.
Their authors dared to imagine more just and more democratic futures
for their respective countries than those they inherited, and
they projected these ambitious visions through new constitutional
texts. Bills of Rights, historically, have mapped where people
wanted to go, not where they were at.[84]
66. Others, however, considered that they should
not have an aspirational role. Professor Vernon Bogdanor's view
was that:
One should not put aspirations in a Bill of Rights,
that a Bill should be concerned to
deal solely with what
is justiciable.[85]
67. The Justice Secretary accepted that a Bill
of Rights could play an aspirational role. Relying on Professor
Philip Alston's description of Bills of Rights worldwide, he noted
that they could fulfil:
"A combination of law, symbolism and aspiration".
One should not dismiss for a second the symbolic and aspirational
role that Bills of Rights and Responsibilities can play. They
can take on an iconic importance which goes beyond the explicit
legal protections afforded.[86]
68. During our visit to South Africa in November
2007, Justice Albie Sachs of the South African Constitutional
Court told us that Bills of Rights should be about "the sort
of society that you want to have - the values you want as a society."
We agree.
69. We recommend that any new
Bill of Rights should be both declaratory and aspirational. It
should state and make fully enforceable all those fundamental
rights which currently exist. But it should also look to the future
by setting out a clear vision of the sort of society to which
the country aspires. A preamble and an appropriate interpretive
provision referring back to the preamble could provide the aspirational
dimension which is missing from the HRA. We
give examples of both in our outline Bill of Rights and Freedoms.
Bills of Rights and historical
moments
70. Another recurring question in our inquiry
has been whether a Bill of Rights can ever emerge from a calm,
deliberative process, rather than being born out of some momentous
event such as a civil war, foreign occupation or other conflict.
71. It is certainly the case that many of the
best known examples of national Bills of Rights, such as the French
Declaration of the Rights of Man and the Citizen, the US Bill
of Rights and, more recently, the South African Bill of Rights,
were forged in the heat generated by momentous conflicts and upheavals.
The same could be said of the international bills of rights: as
is well known, the Universal Declaration of Human Rights and the
ECHR were both drafted in the aftermath of the Second World War,
driven by the desire to avoid a repetition of the then recent
horrors of war and genocide. The Northern Ireland Bill of Rights
process, which will lead to a sub-national Bill of Rights applicable
only in Northern Ireland, also came out of a peace agreement,
the Belfast (Good Friday) Agreement 1998.
72. It is fair to say that there is considerable
scepticism about whether a truly lasting Bill of Rights can ever
emerge from a deliberative process conducted in normal times.
However, there are examples of Bills of Rights which were the
products of such a process rather than some unique historical
moment. The adoption of the Canadian Charter of Rights and Freedoms
in 1982, for example, was principally the result of Prime Minister
Pierre Trudeau's attempt to initiate a process to bind the Canadian
federation together rather than any particularly momentous upheaval
in Canadian society at that time. Yet, as we observed during a
recent visit to Canada in connection with our work on Counter-Terrorism
Policy and Human Rights,[87]
the Canadian Charter of Rights and Freedoms is today one of the
best examples of a Bill of Rights adopted by a democracy which
has attained the status of a constitutional document in the popular
imagination.
73. More recently, a number of Australian states
have adopted state-level Bills of Rights following consultation
processes which were also the product of political debate about
the desirability of a Bill of Rights in a modern democracy rather
than any particular upheaval in Australian society. Victoria,
for example, enacted the Victorian Charter of Rights and Responsibilities
in 2006. The Australian Capital Territories, Western Australia
and Tasmania have adopted Bills of Rights, and there is now a
debate at the federal level about the possibility of a federal
Bill of Rights. Although it is too early to judge the durability
of these state-level Bills of Rights in Australia, they do demonstrate
that Bills of Rights are
capable of emerging from deliberative processes conducted in settled
democracies in normal times.
16 Governance of Britain, at paras 204-210. Back
17
Ibid, para. 209. Back
18
Ibid, para 210. Back
19
Ibid, para 209. Back
20
Mackenzie-Stuart Lecture, University of Cambridge Faculty of Law,
25 October 2007 (hereafter "Mackenzie-Stuart Lecture"). Back
21
Mackenzie-Stuart Lecture. Back
22
Ev 180. Back
23
Qs 423-4. Back
24
Q 424. Back
25
Thirty-second Report of Session 2005-06, The Human Rights Act:
the DCA and Home Office Reviews, HC 1716, HL Paper 278; Sixth
Report, Session 2007-08, The Work of the Committee in 2007
and the State of Human Rights in the UK, HC 270, HL Paper
38, paras 3-4. Back
26
Ev 181. Back
27
See para. 312 below. Back
28
See para 198 below. Back
29
Ev 131. Back
30
Ev 139. Back
31
Ev 167. Back
32
Ev 153. Back
33
Ev 131. Back
34
Ev 125 & 173. Back
35
Ev 95. Back
36
Ev 143. Back
37
Ev 147. Back
38
Ev 135. Back
39
Ev 135. Back
40
Ev 147. Back
41
Ev 102. Back
42
Q 236. Back
43
Ev 148. Back
44
Ev 102. Back
45
Ev 135. Back
46
Ev 165-166. Back
47
Balancing freedom and security - A Modern British Bill of Rights,
Centre for Policy Studies, 26 June 2006. Back
48
Towards a Bill of Rights and Responsibilities, 21 January
2008. Back
49
Mackenzie-Stuart Lecture, 25 October 2007. Back
50
Q 10. Back
51
Q 236. Back
52
Ev 130 & 131. Back
53
Ev 135. Back
54
Ev 99. Back
55
Ev 110 & 151. Back
56
Ev 134. Back
57
Ev 132. Back
58
Ev 150. Back
59
Ev 97-98 & 150. Back
60
Q 236. Back
61
Governance of Britain, para. 210. Back
62
Thirty Second Report of Session 2005-06, The Human Rights Act:
the DCA and Home Office Reviews, HL Paper 278, HC 1716. Back
63
(1997) 23 EHRR 413 which prevents a state from deporting an individual
to a country where there is a real risk that s/he will suffer
torture or ill-treatment on return. Back
64
Ev 106, 130, 132, 145 & 153. Back
65
Ev 145. Back
66
Ev 106. Back
67
Ev 99, 109, 150 & 148. Back
68
Ev 96. Back
69
Q 442. Back
70
Q 10. Back
71
Q 420. Back
72
Ev 184. Back
73
Q 420. Back
74
HRA s. 6(1). Back
75
HRA s. 3(1). Back
76
HRA s. 4. Back
77
Q 422. Back
78
Q 421. Back
79
Q 1. Back
80
R (Ullah) v Special Adjudicator [2004] UKHL 26 and R
(Al-Skeini) v Secretary of State for Defence [2007] UKHL 26. Back
81
See chapter 7 below. Back
82
JUSTICE, A British Bill of Rights: Informing the Debate,
November 2007, p. 21, para. 2. Back
83
See e.g. Governance of Britain, para. 209. Back
84
Ev 154. Back
85
Q 276. Back
86
Q 444. Back
87
See Twenty-fourth Report of Session 2005-06, Counter-Terrorism
Policy and Human Rights: Prosecution and Pre-Charge Detention,
HL Paper 240, HC 1576. Back