Joint Committee on Human Rights Written Evidence

11.  Memorandum from Jonathan Doyle

1.   Is a British Bill of Rights Needed?

  A bill to protect the rights of the citizen from the state is needed, as the gentleman's agreement between government and people is no longer working, as politics has changed over the past century, The respect the people in our government have for such informal arrangements has diminished, and will continue to do so in the future and we should act to safeguard those rights from further abuse by government. Constitutional change in Britain only ever happens just enough to solve the crisis of the moment laying down such rights now would pre-empt such a crisis and bring the UK into line with the rest of the free world.

  The key reason for a bill of rights is to limit the sphere of interest over which the government can exercise power, reserving certain rights and freedoms for the citizen and recognising that it is the citizen not the government that is the source of sovereignty in a democracy.

  The key difference between a Bill of Rights and the existing human rights act would not be in the content but the character, it should give the Judiciary the power to overturn laws that contravene it, thus giving priority to the liberty of the citizen rather than licence of the state.

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

  The bill of rights should first protect the citizen from the power of the state, and second guarantee those acts that are self regarding in nature from the inference of the state. In this way the rights contain would be negative rights, freedom from the state, requiring only the absence of action on the state's part, as opposed to positive rights such as healthcare or education which would require the state to take action. The reason such a bill should focus on our freedoms from government rather than on those which the state can provide, is three fold. First this bill should act as a shield from the power of the state and the inclusion of social and economic rights can weaken its effectiveness as such. On a practically level Freedom of Speech, Conscience and Assembly only requires the absence of action on the government's part. Whereas Education, Healthcare and Housing would require massive government action, especially to maintain equality to such rights, it is relatively easy to ensure that the residents of Plymouth enjoy the same free speech as the citizens of Newcastle, however it's another matter entirely to guarantee the same level of medical treatment. The scope of such right would open the government to many lawsuits simple because the quality was not universally uniform. This leads to the third reason; the inclusion positive rights would remove democratic choice since they would bind government to massive costs in perpetuate, whereas negative rights would protect the democratic system by limiting government action, positive ones would force policy on all parties regardless of their ideologically perspective, this country is a liberal democracy, that is at the core of our political values however if we are a social democracy also is to earlier to tell and the decision over such policies should remain within the democratic arena. There is however strong argument that social equality is vital to a fair democracy, particularly in regards to education since without it some will always have greater advantage than others. The statistics on Judges the majority of whom attend public school and went to university at Oxford or Cambridge is testament enough to this. The equal provision of such positive rights is simply unattainable in a capitalist economic as some will always have more resources to ensure their greater advantage. So you would be left with two options make it an unenforceable document of ideals or limit the scope of such rights to guarantee only a clearly defined minimum the complexities of which would lessen the impact of the Bill and prevent it from being future proof.

  If you were to include positive rights the key document in my opinion to use as the source for drafting such rights would be the Beveridge report its five evils translate into what could be consider the five basic positive rights, health, housing, employment, education and economic security.

  Many of the international documents on rights and those of other nations such as the constitutions of the USA and India are based on the British tradition. It is writers like Locke, Mill and Berlin that have shaped not only ours but the world's theory of rights. So many of those contain in both the bill of rights of others and in international law have their roots in this country. This does not mean we should disregard the elegance of the American Constitution or ignore the importance of the Universal Declaration, but the principles that they find to be self evident such as life, liberty and the pursuit of happiness are British principles already. One document I feel would be worth referring to would be the Atlantic Charter and the four freedoms it states are the birth right of all people, Freedom of Speech, Freedom of Worship, Freedom from Want, and Freedom from Fear. One aspect that could be taken from many countries practice but sadly no longer one of our is the requirement of warrants and reasonable suspicion for searches and arrests, in this country we demand greater efficiency from our public services when they fail to meet what is required, in the case of our polices and security services we do not we simple take more rights from the citizen to make their job easier, This would never be the case in other democratic countries. The rights and liberties of British citizen is scattered through a myriad of documents, from the Magna Carta to the Mansfield judgement, the English bill of rights to the Wilcock case. Two bills that are worth including are the Data Protection act and the Freedom of Information act since it is the government that should be accountable to the people not the reverse.

  The essential freedoms that such a bill must remove from the grasp of government interference are Habeas Corpus, freedom from being coerce, tortured or killed by the government, Fair and speedy trial by a jury, the right to privacy from government intrusion including warrantless searches, arbitrary arrests, and blanket surveillance, never to have to make account of yourself and your actions to anyone other than a jury of your peers. These rights would limit the power of government, once this is done we must limit the scope of government. Essential to this are the absolute rights, to freedom of Speech, Conscience, Assemble and Association. As without these absolute rights you can not have democracy. As they protect the ability of the citizen to dissent from the decision carried out in there name. There are some qualified rights which are also essential such as freedom of movement the right to participate in the government, to vote in a secret ballot without fear, and to hold those elected officials to account. Lastly the most important facet to all these rights is equality, they can be no qualification placed upon any free person in order to exercise these rights, regardless of wealth race gender or sexual preference.

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

  This bill should be the law of government limiting its action against any over who it exercises authority, so should apply to any person in this country. Britain liberal tradition has seen it as a refuge from those fleeing persecution for centuries a stalwart against oppression this bill should see to it that Britain remains as such, that those values we hold true are not the special reserve of the British but the preserve of all mankind. Protecting those seeking our protection in asylum as it does British citizens.

  In international regards it should be a guide to our nation's actions and set a clear example of what liberal principles mean, to the rest of the world. So our conduct in warfare or in UN and NATO operations as in Iraq and Afghanistan, it should be illegal for a soldier to follow any order that breaches this Bill.

  The Bill should supersede all previous legislation, so for simplicity sake in may be appropriate to include those rights that are in the current human rights act. As this bill should give British courts the power to overturn government legislation that does not comply with the bill it would no longer be necessary for the lengthy and costly ECHR appeals which has seen the British government become the most often judged against of any of the signatory nations.

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

  The Bill should finally establish a separation of powers in this country, giving the Legislature greater power to hold the Executive to account, and the Judiciary finally given the power to guard against the worst excesses of both.

  The main reason for such a bill is to protect the citizen from the state, since throughout human history it has been the state that has posed the biggest threat to the life and liberty of the individual. Such a bill would also remind government that sovereignty does not lie in the state but with the citizens.

30 August 2007

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2008
Prepared 10 August 2008