Joint Committee on Human Rights Written Evidence

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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