10. Memorandum from Democratic Audit
Democratic Audit failed to notice that the Joint
Committee on Human Rights had issued a call for evidence on proposals
for a British Bill of Rights. We apologise for the lateness of
this submission which we have kept short to facilitate the Committee's
Democratic Audit is a research organisation
attached to the Human Rights Centre, University of Essex. Our
primary function is to "audit" the quality of democracy
and human rights in the United Kingdom against a democratic framework.
This framework has been adopted by the inter-governmental International
Institute for Democracy and Electoral Assistance (IDEA), and by
the UNDP, governments, universities and civil society organisations
in 24 countries around the world for the purpose of evaluating
their democratic arrangements. Professor Paul Hunt, of the Department
of Law, Essex, and the UN Rapporteur on the Right to Health, is
chairman of the Audit Board; and Dr Todd Landman, of the government
department at Essex, and head of the joint Essex-IDEA "State
of Democracy" programme, is deputy chair.
1. Is a British Bill of Rights needed?
Yes. In our experience, the Human Rights Act
has in practice been bedding down satisfactorily, except that
both media and political comment have distorted public perceptions
of its role. We also understand that research for the Equality
and Human Rights has found that the idea of "human rights"
is unpopular while there is public backing for the substance of
the rights that the Act protects.
It is established that the real protection of
human rights, or civil liberties, depends ultimately on having
the support of the public. Civil society organisations can of
course act to promote and protect human rights, but they do not
have the purchase on public opinion sufficient to counter ill-informed
and biased commentary in popular sections of the media.
The HRA was introduced almost by stealth. The
then government shirked the task of explaining and popularising
its contents, let alone consulting the public in advance and engaging
their participation. Thus it never commanded sufficient popular
support to withstand media campaigns and misrepresentations, nor
the political view that it represents an alien curb on the UK's
There is therefore in our view an urgent need
to create an informed and involved public engagement in framing
a "Bill of Rights" so that it commands popular support;
and the use of the familiar title, "Bill of Rights",
and what it stands for in the popular imagination should facilitate
this engagement. Opinion polls repeatedly show high levels of
popular support for a "Bill of Rights". But it is important
that there should be no dilution of present protections under
the Act and that these protections should primarily be enforced
in the British courts and not at Strasbourg.
The purpose of a British Bill of Rights would
be two-fold; in the first instance to gain public support for
such an instrument through inclusive and extensive consultation;
and secondly, through free and deliberative debate in Parliament
to consider and act upon the wishes of those consulted in respect
of the rights and freedoms that such an instrument should protect.
Any future Bill of Rights should be a genuinely popular document
that entrenches certain principles and values that Parliament
cannot alter and yet affords the democratically elected legislature
a key role in establishing the rights it contains.
Democratic Audit has been "auditing"
democracy in the UK since 1992 and has come to the conclusion,
through three successive audits and a series of specific research
reports, that the United Kingdom requires a written constitution.
We therefore see an additional value in establishing a Bill of
Rights as a major component of a written constitutional settlement
in this country, especially if the measure were given a higher
status than that of an ordinary statute.
Democratic Audit has reservations about aspects
of the government's approach. We are not sure how we should construe
the addition of "British" to the rubric. We would be
reassured if it is merely advanced as a way of giving an inclusive
sense that the new measure is "owned" by the various
publics and communities of the United Kingdom. However, we believe
that it would be detrimental to social cohesion in this country
if it becomes a signal of rejection of "European" or
minority rights or values, and profoundly wrong if it in any way
reduces the universality of human rights for non-citizens resident
Equally, the addition of "responsibilities"
or "duties" to he putative title gives rise to concern.
Once again, if this is a way of signalling the significance of
responsibilities in the existing Act and the European Convention,
then so be it. Better still, it could encourage government to
spell out the state's responsibilities to citizens and residents.
However, though vaguely, the intention seems to be to go beyond
the responsibilities inherent in the approach of the HRA and in
human rights instruments generally and to set out the duties of
citizens to "society" or in effect to the state. How
such duties will be enforced is quite unclear. As Professor Keith
Ewing has recently asked, Will they be directly enforceable against
those who owe the duty, and if so by whom? Ewing reviews some
examples of citizens' duties to the state, the most striking of
which are set out in Articles 39 to 69 of the 1997 USSR Constitution.
2. What should be in a British Bill of Rights?
A British Bill of Rights must obviously continue
to protect the civil and political rights set out in the Human
Rights Act and not seek to resile from any of them through qualifications.
But there are ways in which it could go further:
(a) Traditional and common law rights
As JUSTICE suggests in Informing the Debate,
the right of access to the courts could be made more robust, given
the differences between continental and British legal systems,
and this right ought also to give protection to the legal aid
scheme that is being dangerously undermined. Trial by jury is
an archetypal "British right" that is not fully protected
under the European Convention's provisions for "fair trial".
It is of course the case that the great majority of criminal cases
are heard by magistrates without juries, but parliamentary and
public opinion strongly support trial by jury in serious cases
(see, for example, the Rowntree State of the Nation poll, 2006).
(b) Social, economic and cultural rights
Democratic Audit's framework for assessing the
quality of democracy in any country includes include social and
economic rights, such as to health, housing and education, on
the grounds that they are integral to modern liberal and inclusive
democracy. This framework has been adopted by the International
Institute for Democracy and Electoral Assistance and two dozen
nations around the world. Civil and political rights, the building
blocks for democratic engagement, require the existence of social,
economic and cultural protections to be workable. The UK government's
position is that "all human rights are universal, indivisible,
interdependent and interrelated", but alas, it is a position
for export only.
It is increasingly recognised in this country
that social and economic rights are vital to democratic well-being;
the JCHR's report on compliance with the United Nations Covenant
on Economic, Social and Cultural Rights made an important contribution
to this growing recognition. We do not mean here to travel again
on the roundabout of argument in the face of the government's
intransigence on their incorporation into British law (see Unequal
Britain, Politico's, 2006 for our full statement). But we do wish
to make several comments:
A series of ICM polls for the Joseph Rowntree Reform
Trust's State of the Nation have shown public support for the
inclusion of social and economic rights in a Bill of Rights; and
the experience of consultations in Northern Ireland on a Bill
of Rights for the province has borne these indicative findings
out in practice;
It is said that social and economic rights are not
"justiciable", but this is evidently not the case:
Some social and economic rights
are already guaranteed in the UK by EU laws and directives, with
the European Court of Justice as the final arbiter; and a range
of domestic statutes and the HRA itself provide limited protection
to such rights in the public sphere;
Certain social and economic rights,
especially those relating to trade union and workplace matters,
do not engage major issues of provision (ie, state investment
in education or housing) are not fully protected currently in
the UK, although they are equally as "justiciable" as
protected civil and political rights;
As under the UNCESCR doctrine
of progressive realisation, employed in South Africa, the courts
are not asked to issue immediate orders that would usurp the government's
role, but instead pass judgment on the seriousness of government
plans over time to provide for housing, education, health care,
etc. This provision encourages the type of "dialogue"
between the executive and courts that is developing slowly under
the HRA; and
It is said that judges do not
have the knowledge or expertise to rule on often complex and costly
public programmes for housing, education, etc. The South African
judge Albie Sachs has one answer to such argumentsthat
is, they are experts on human "dignity", the law and
human rights; and they can of course develop judicial review to
hear expert evidence.
It is argued that giving the courts the power to
review and protect social and economic rights would replace the
democratic rule of elected government with rule by unelected judges.
This is a crude and wrong-headed argument. The point of giving
people social and economic rights is to give them some power over
public decisions that affect their lives. Our imperfect electoral
and other arrangements tend to deny the majority of people any
such power or influence. At best it may be said that the most
vulnerable groups in our societythose who most need social
and economic provisionhave to rely upon the good will of
the governing party at any one time. The recognition of social
and economic rights may empower the judiciary, but more importantly,
it would empower citizens, who may be in need of redress; or sufficient
state provision, to use the courts to assert their rights to housing,
education, health, care, etc; or simply to the basic necessities
Debate about the effects of the HRA and its extension
into social and economic rights concentrates almost wholly on
what happens in the courts and in Parliament. The British Institute
for Human Rights has demonstrated in practice that the HRA's provisions
can be used outside the court-room to protect the dignity and
rights of vulnerable people (see the BIHR report, The Human Rights
The right to a clean and healthy environment has
become an increasingly important social and economic issue that
affects not only the current population of the United Kingdom,
but through the phenomenon of global warming and pollution, the
citizens of nations around the world; and it is of course an issue
that affects future generations as well as our own. France and
South Africa are two nations that have given constitutional protection
to the environment.
(c) Children's rights
The JCHR has already addressed the question
of children's rights in a report on the UJN Convention on the
Rights of the Child (CRC). The European Convention, and hence
the HRA, and gave support for the CRC's incorporation into British
law. As the JUSTICE report, cited above, states, the current legal
framework in the UK fails to protect children's rights adequately.
(d) Weaknesses in the HRA
Judicial rulings have in part weakened the beneficial
effects of the HRA. Two rulings are of particular significance
and their negative effect could be remedied in any revision of
the HRA. First, the law lords held in the case of Marper and LS,
July 2004, that the inclusion of innocent people on the national
DNA register does not violate their right to privacy, as the "interference"
is "very modest indeed". The "interference"
is made worse by the fact that an unspecified may be able to access
the database over time. This is one aspect of privacy that is
of far greater importance than media reports on the lives of the
rich and famous. In our view the CHR ought to initiate a debate
on how far Article 8 of the Convention is able to protect the
privacy of the individual in relation to surveillance and data
protection. Secondly, in Southern Cross Nursing Homes, June 2007,
the law lords ruled that the Human Rights Act does not apply to
private care homes in England and Wales, even when they are performing
a public function. This ruling leaves unprotected large numbers
of people requiring care who are placed by public authorities
in private care homes.
Finally, there is the issue of derogation. Most
bills of rights and international human rights instruments give
executives the power to suspend certain human rights obligations
in a national emergency. Such a time is also of course when civil
liberties are most at risk. Most bills of rights therefore lay
down strict conditions and safeguards in the derogation process.
In the UK, the government can turn to its royal prerogative powers
to derogate from its obligations under the European Convention
without any form of parliamentary control, as it did in its derogation
from Article 5, the right to liberty, after 9/11 (the only Council
of Europe member state to have done so). The government's green
paper, The Governance of Britain, recognises that this anachronistic
hang-over from monarchical rule is in need of reform. A British
Bill of Rights should strengthen protections against amendment
of its provisions and set in place a parliamentary process for
the acceptance or rejection of proposed derogations with clear
rules for the conditions in which derogation may be permissible.
But we also urge the JCHR to take up this issue in relation to
the European Convention and Human Rights Act in any consultations
about the royal prerogative.
13 March 2008