Joint Committee on Human Rights Written Evidence


1.  Memorandum from Professor Robert Blackburn, PhD, LLD,[1] Professor of Constitutional Law, King's College London

  In response to the questions in the Call for Evidence, my views are:

1. Is a British Bill of Rights needed?

  1.1 A new British Bill of Rights would benefit the country and its people, so long as it was constructed in a manner that was compatible with other constitutional and legal arrangements operating at the same time. Its purpose—the aims behind such a measure—would be to assist in controlling oppressive acts of state agencies and commercial bodies, and strengthen the means of remedying individual grievances against such bodies.

  1.2 A Bill of Rights would enhance the existing state of affairs by providing a higher standard, and more sophisticated version, of a British citizen's fundamental rights and freedoms to those drafted for the international purposes of the European Convention on Human Rights (incorporated in the Human Rights Act 1998).

2. What should be in a British Bill of Rights?

  2.1 Enacting a Bill of Rights will be an opportunity to articulate a British statement of citizens" rights and freedoms more closely attuned to our national circumstances, the indigenous traditions of our legal and political systems, and the progressive values our society and people seek to espouse.

  2.2 The traditional or core civil liberties of Britain must be written into the document. British constitutionalism as it has evolved has placed special emphasis on tolerance and free speech, absence of arbitrary official conduct, due process and fair trial, freedom from inhuman or degrading treatment, freedom of political and religious expression, and equality of treatment. These and the other fundamental principles which are already expressed in the ECHR (extending in its subsequent protocols to matters including protection of property, right to education, and free elections) should be prescribed by the Bill of Rights in a manner compatible and complementary to the Convention.

  2.3 The real challenge for those drafting the Bill of Rights—and its most interesting intellectual aspect—will be to identify and articulate those further rights and freedoms which are, or shortly will be, of fundamental importance to the dignity and quality of human life in the future. In order to express these principles, it is essential to focus on the problems and threats that lie ahead in the future.

  2.4 For example, two of the greatest threats to our freedoms, dignity, and quality of life, are posed by runaway new technologies and the potential for their misuse, and by environmental degradation. Coupled with this is the fact that those who govern us and control our lives, both in the state and commercial sectors, are increasingly institutionally motivated by overriding factors of administrative and financial convenience.

  2.5 In some cases, human rights already recognised need considerable further articulation and adaptation in Britain. For example, the field of equality and non-discrimination should extend its range from gender and sexual matters to age and genetic make-up. Freedom from degrading treatment should be elaborated in diverse areas such as interrogation techniques, care of the elderly, and surveillance of employees. The right to life should address issues of human cloning and voluntary euthanasia of the terminally ill. In other cases, new principles must be articulated, for example providing standards of environmental impact by which commercial and governmental bodies must operate.

  2.6 The precise drafting or wording of particular rights should reflect awareness of good models in existing international treaties or foreign Bills of Rights; for example, respectively, the EU Charter of Fundamental Rights and the South Africa Bill of Rights.

  2.7 In my view, the British Bill of Rights should not be a Bill of Rights and Duties. It should not seek to instruct citizens by way of a list of state approved public responsibilities owed to society and the state, as suggested in the government green paper The Governance of Britain, CM 7170, 2007. There are already responsibilities and obligations inherent in the concept of human rights, expressed for example in the provisos to many of the articles of the ECHR. These public interest factors are the other side of the same coin that stipulates our fundamental human rights and freedoms.

  2.8 The key question here is on what side of the coin do you wish to place the primary emphasis? In a free society the emphasis must be on the side of the rights and freedoms of the individual. If the government wants to promote ideas or obligations of civic responsibility and active citizenship, especially if they are to be compulsory ones, this must be done by way of some document or initiative other than through a new British Bill of Rights. Its proposed content would need to be carefully scrutinised by the Joint Committee on Human Rights and other civil liberties watchdogs.

3. What should be the relationship with the Human Rights Act and international human rights obligations?

  3.1 The content of a Bill of Rights, and the way it is interpreted and applied, has to be consistent with Britain's international human rights obligations, including those arising from our membership of the Council of Europe, the European Union, and the United Nations. Any inconsistency would be tantamount to repudiation of our membership of those important international bodies. Such consistency and harmonisation of national with international law will become increasingly important as time goes on and we continue to move towards more structured forms of global governance.

  3.2 The ECHR (and therefore the Human Rights Act) seeks to provide a common denominator—a "safety net"—below which the legal and administrative practices of each member state will not fall. Its expectation is that the laws and practices of individual member states will in fact reflect human rights standards significantly higher than those guaranteed by the Convention and its enforcement machinery. Most of the other 46 Council of Europe member states already possess, and operate, their own national Bill of Rights or statement of basic citizens" rights and freedoms in their constitution alongside their international human rights obligations.

4. What should be the impact of a British Bill of Rights on the relationship between the executive, Parliament and the courts?

  4.1 The impact of the new Bill of Rights on the balance between the three major branches of government will depend on the document's status in law. One key factor is to disentangle which human rights are capable of judicial enforcement from those which are not. A second is the need to create a scheme of legal priority for the judicially enforceable rights in the Bill which work and fit in with the operation of the British constitution and legal system as a whole.

  4.2 Most jurists recognise that the freedoms and rights most capable of being actionable and enforceable through the courts are those of a civil and political nature, similar or closely associated to the type of rights in the European Convention. However, even if human rights relating to the workplace, housing, social security, health and the like are accepted as not being amenable to the legal process of judicial enforcement under a Bill of Rights, consideration could be given to drafting a statement of social and economic rights to serve as an authoritative declaration of principles on which government policy should be conducted.

  4.3 This declaration of social and economic rights could appear in a separate part of the Bill of Rights, making reference also to the relevant international covenants and charters to which the UK is a treaty signatory, such as the Council of Europe Social Charter and the UN Covenant on Economic, Social and Cultural Rights. The value of this declaration would therefore not lie in the realm of actionable legal remedies but as a point of public and parliamentary reference and to assist in judicial interpretation of unclear statutory measures. It might also form part of the responsibilities of the Commission for Equality and Human Rights in preparing advisory reports on the compatibility of legislative and administrative developments with the social and economic principles expressed in the Bill.

  4.4 A Bill of Rights would necessarily have a significant impact on the relationships between executive, Parliament and judiciary, elevating the roles of Parliament and the courts over the executive and public administration. A Bill of Rights would be a genuinely constitutional document—indeed, effectively a part written constitution—and it would be a nonsense if it were not "entrenched" in some form or other.

  4.5 Such entrenchment would involve the Bill of Rights having a higher status and priority over ordinary Acts of Parliament, and amendments to the Bill of Rights being subject to some special parliamentary process. There are various options for entrenching the Bill of Rights, which are discussed in my book Towards a Constitutional Bill of Rights for the United Kingdom (London: Pinter, 1999), "Methods of Entrenching a UK Bill of Rights" at pages 55-67 and 700-744.

  4.6 A Bill of Rights would require judicial review of primary legislation by the superior courts, a process regarded as normal in other jurisdictions. The judiciary already has experience of such a task. For although section 4 of the Human Rights Act does not enable the courts to invalidate a statutory provision in an Act of Parliament, its "declaration of incompatibility" procedure requires the courts in substance to go through a similar process of judicial review of primary statutory provisions.

5. Are there any other issues not covered by the above questions?

  5.1 Yes, the integrity of the process through which the Bill of Rights is prepared and implemented.

  5.2 It is of real concern that, particularly since 2001, the government has taken upon itself a forceful self-asserting role with respect to constitutional reform. The truth is that governments of all persuasions have a vested interest in moulding our constitutional arrangements in a manner that suits their own political or managerial convenience.

  5.3 Indeed this explains why some present opposition to a Bill of Rights comes from surprising quarters among the civil liberties lobby. For whilst in principle they may be enthusiastic supporters of a Bill of Rights, in practice they are worried the government will misuse its legislative power to construct a measure that actually facilitates draconian activities by the state. Nothing is more dangerous and Orwellian than corrosions of liberty dressed up as constitutional safeguards.

  5.4 The construction of a British Bill of Rights should be referred to a commission that is genuinely independent, though one that is set up with a membership having the confidence of the political parties represented in Parliament. Its recommendations with an accompanying draft Bill of Rights should be presented directly to Parliament.

14 January 2008







1   See Robert Blackburn, Towards a Constitutional Bill of Rights for the United Kingdom (Pinter, 1999); Robert Blackburn & Jrg Polakiewicz, Fundamental Rights in Europe (OUP, 2001) esp. Ch 36 "The United Kingdom"; Robert Blackburn, "Legal and Political Arguments for a Bill of Rights" in Human Rights for the 1990s, ed Blackburn & Taylor (Mansell, 1991); Robert Blackburn, "A British Bill of Rights for the 21st Century" in Human Rights for the 21st Century, ed Blackburn & Busuttil (Mansell, 1997). Back


 
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