1. Memorandum from Professor Robert
Blackburn, PhD, LLD,
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 purposethe
aims behind such a measurewould 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
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 Rightsand its most interesting intellectual
aspectwill 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
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
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 denominatora "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 documentindeed, effectively
a part written constitutionand 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