13. Memorandum from Professor C A
Gearty, Matrix and London School of Economics
1. Is a British Bill of Rights needed?
No. No such bill is required. The Human Rights
Act works perfectly adequately within Britain's parliamentary
system of government to guarantee freedoms and human rights to
an appropriate extent. The international human rights framework
rightly puts international obligations on the UK to secure compliance
with these international human rights obligations. Such compliance
is best achieved by a combination of executive enforcement and
precisely targeted legislative action—it is not best achieved
by a generalised bill of rights seeking to deliver such rights
via a judicially enforceable code of rights. This is too abstract
and question-begging to be of serious use. It also imposes too
many quasi-executive (indeed quasi-legislative) tasks on the judicial
branch, damaging its core mission (adjudication) while also at
the same time creating an increased risk of politicisation.
On the other hand, if the British bill of rights
is to be separate from the range of international human rights
to which the UK is already committed, what is to be its content?
How will such content be arrived at? Which forces in our culture
will succeed in translating their political goals into rights
and which will not? The very title of such a measure suggests
a flight from universalism into a parochial measure, offering
rights to the British but not others. While this may not be the
intention of many of those arguing for a British bill of rights,
there is a risk that this will be how the initiative is perceived.
If this were to happen, the bill of rights would be very damaging
to the universalism which is at the core of human rights. It might
also cause the important safeguards in the current Human Rights
Act to be diluted—without any compensation in the new Bill
for such dilution.
The Human Rights Act offers a very well-judged
compromise between the language of rights and the imperatives
of democratic government. Its system of declarations of incompatibility
allows judicial interventions in relation to legislation which
nevertheless do not strike such legislation down. This is exactly
as it should be. The system works well, as is evidenced by the
Belmarsh detention case (A v Secretary of State for the Home Department
[2004] UKHL 56).
The rights contained in the Human Rights Act
frequently involve judgments as to the proportionality of proposed
interferences with their substance. Very few of the rights in
the Convention are absolute. The test of proportionality provides
the means by which the interests of the community and the responsibilities
of us all as members of the community can be weighed against the
intrusion into rights which such interests and responsibilities
are said to warrant. There are also additional aspects to the
Convention system, which find expression in the Human Rights Act,
which allow for emergency action and which permit defensive action
against those who would destroy the whole system were they given
the chance. The notion of responsibility is already weaved into
the Human Rights Act in this way and requires no additional exposition.
Indeed generalised qualifications to rights rooted in vague notions
of "responsibility" would be subversive of the structure
of the Act. Such pseudo-contractual approaches to rights are battering
rams with which to undermine the universality of rights while
seeming to preserve their essence
To say that the Human Rights Act is all the
legislation on rights the UK needs is not to say that rights-talk
is not important. Of course there is still scope for the reliance
on broader rights in the course of parliamentary debate, rights
drawn from the international human rights framework as well as
rights deduced from the speaker's reflections on freedom and liberty.
Such language belongs in the political sphere, underpinning calls
for legislative action to realise rights in practice. It should
not be made the basis of a wide-ranging and judicially enforceable
bill of rights.
2. What should be in a British Bill of Rights?
See above. I do not think such a measure should
be enacted.
3. What should be the relationship with the Human
Rights Act and international human rights obligations?
It should be exactly as it is at present. International
human rights law carries its own enforcement mechanisms via international
(occasionally judicial/quasi-judicial) fora.
4. What should be the impact of a British
Bill of Rights on the relationship between the executive, Parliament
and the courts?
I am not sure about "should be" but
"would be" would include: (i) dilution of parliamentary
sovereignty; (ii) a move towards constitutional inflexibility,
making the rights decisions of the drafters of any such bill difficult
to override however long ago the drafting took place; and (iii)
a shift in power away from the elected to the judicial branch
of government, with more large-scale cases tackling issues of
what are perceived presently to be policy matters: eg resource
allocation; employment policy etc. What might also happen would
be a move to differentiate between types of persons resident within
Britain (eg British/non-British; EU/non-EU). While some distinctions
along these lines are inevitable, the enactment of a document
like this might introduce a hierarchy of rights-holders, with
Britons at the top and others further down the pecking order.
Such a hierarchy might even seep into the basic rights framework,
affecting what we now think of as universals. This would greatly
damage the equality of esteem of the person on which the idea
of human rights hangs.
14 March 2008
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