15. Memorandum from Tom Hickman, Blackstone
Chambers
1. In response to the Joint Committee's request
for evidence, I have briefly set out some thoughts in this subject
below in the hope that they may be of some interest. I have also
enclosed a short paper written for the LSE Student Law Journal
Obiter in Michaelmas 2006.
2. Although this is an issue of great interest
to me, I was prompted to respond to the request by the nature
of the questions that the Committee has chosen to pose. As a reflection
of informed thinking on a Bill of Rights they are not unsurprising
and they are the sort of questions that other bodies have asked
themselves when addressing this issue. Nonetheless, I find such
a focus concerning, and in particular the focus on (i) the legal
effects and benefits of a Bill of Rights (as contrasted with the
Human Rights Act 1998 ("HRA")), such as what rights
(and duties) should be included, and (ii) the mechanics of a Bill
of Rights,—how it would be related to the European Convention
on Human Rights ("ECHR") and so on. In my view, this
focus risks overlooking, or at least underplaying, the fundamental
importance of the prior questions: why do we need a Bill of Rights
and, crucially, how should we go about it?
3. The principal reason for having a Bill of
Rights is to set out the long-term values and commitments of society
at large, around which it agrees to be ordered for the foreseeable
future. It follows that questions about what a Bill of Rights
says and the manner that it says it are of secondary importance.
In general terms, the answer to these questions is: whatever society
chooses through an appropriate and properly informed process.
That process will, of course, require the secondary questions
to be asked and the issues resolved; but first of all we must
work-out what an appropriate process would be, and that in turn
requires a clear understanding of why we need a Bill of Rights.
If the issue is not approached in these stages, there is a real
risk that we will end up with a Bill of Rights in name only, which
suffers from the same infirmity of acceptance as the HRA.
4. For this reason (as well as for reasons of
time) I have concentrated my response on the first of the questions
asked, although I have touched on other questions in my response
to this question.
Is a Bill of Rights Needed?
5. A Bill of Rights is needed, but it is necessary
that the reasons why are carefully examined. In my view, a Bill
of Rights is necessary and desirable for two principal reasons:
5.2
to provide human rights with superiority over all
ordinary law that will provide a fully effective and appropriate
remedy for such abuses.
6. There are a number of reasons why the Human
Rights Act 1998 ("HRA") is deficient or could be improved
upon. However, few of these when scrutinised are truly arguments
for a Bill of Rights. They are arguments for amending or extending
the HRA. Of course, the process of conceiving a Bill of Rights
provides an opportunity to make improvements, but these are not
in themselves reasons for enacting a Bill of Rights.
7. So, for example, the HRA can be criticised
for not including a general equality or non-discrimination right.
This, however, is not a reason for introducing a Bill of Rights.
Introducing such a right by means of a Bill of Rights would have
the advantage of conferring an added constitutional status and
importance to such a right, but such a right could be introduced
by amendment to the HRA. The same point can be made about a number
of other deficiencies in the HRA: its restrictive application
to public authorities; the absence of children's rights; the absence
of any reference to access to basic health care, food, water and
a home (which when we reflect upon it we all probably regard as
more fundamental rights than the right to respect for our correspondence
or the right to be married).
8. This is not simply a technical point. It
clarifies thinking about a Bill of Rights by exposing what are
the true reasons for introducing such a measure. Put shortly,
the reasons are not those relating to the scope of rights protection,
but to the status of the rights in question.
State building
9. A Bill of Rights is legislation that sets
out the core principles around which society agrees that it should
be ordered. The use of the worded "ordered" must be
preferred to the word "governed" to take account of
the potential for Bills of Rights to apply to non-governmental
organisations and private persons as well as to Government.
10. A Bill of Rights is something more than
an ordinary piece of legislation. It is even more than a piece
of legislation that protects fundamental rights. After all, there
are plenty of those besides the HRA, such as legislation governing
racial and sex discrimination and legislation providing for "legal
aid". Moreover, to say that a Bill of Rights is legislation
which is especially firmly entrenched or which confers higher-order
power on the courts is also to risk missing the key point. This
is a lawyers' definition of Bill of Rights which puts the cart
before the horse. The reason why Bills of Rights prevail over
majority will expressed from time-to-time in legislation is because
of their special significance in society. Adherence to the protected
rights is considered to be overriding importance because they
represent the long-held values and long-term commitments of society.
11. In my view the most significant argument
for a Bill of Rights is the social benefit that would come from
setting out society's core values and long-term commitments. Of
course, this means that the principal reasons in favour of a Bill
of Right are sociological, political and cultural, rather than
legal. And they are multifaceted. At risk of oversimplification,
the following general and overlapping considerations seem to me
to be of particular importance (but not necessarily in order of
importance):
11.1 First, there is generally an extraordinary
lack of awareness and education as to the workings of the state
and in particular of the constitution. This is clear to anyone
who has taught constitutional law to first-year undergraduates.
My own limited experience suggests that that most school leavers—even
those with straight As at A Level who choose to study law at university—cannot
explain the basic workings of Parliament and the courts, still
less do they know anything much about the HRA. The constitution
is the bedrock of society. It is the basis on which power is exercised
legitimately. It is one of the most important things that everyone
in society shares. It constantly amazes me that so little is known
about its workings and its importance. A Bill of Rights has a
vital educative role, not only in making people aware about the
importance of civil and human rights, but also the importance
of the constitution and the separation of powers more generally.
It also provides a unique opportunity for people to engage with
the constitution through an exercise of state building.
11.2 Secondly, the past ten years has witnessed
one of the most significant periods of constitutional reform (Professor
Bogdanor has identified fifteen separate reforms with constitutional
significance since the Labour Government took office in May 1997:
"Our New Constitution" (2004) 120 LQR 242). These reforms
have not been accompanied by any significant engagement with society
generally. A Bill of Rights offers such an opportunity as well
as the opportunity to take stock and set out the core constitutional
principles that should form the basis of our new constitution.
11.3 Thirdly, since 11 September 2001 numerous
statutes have been passed which have seriously encroached upon
basic human rights, and there has been a concerning transfer of
power to the executive. One only needs to refer to indefinite
detention of foreign nationals; police powers to stop and search
without reasonable suspicion; laws against public protest; ASBOs
and control orders. The HRA has had some successes in court in
defending human rights in the face of such legislation. Even where
legislation has not been declared incompatible with the ECHR,
the courts have blunted some of the worst excesses by robust interpretation.
The key point that I want to make, however, is that whatever its
legal effects have been, the HRA has not provided society at large
with a set of rights and basic values against which Government
projects are held up to critical examination in the press, in
Parliament and in society at large. On the contrary, the HRA has
successfully been portrayed as the enemy of the people rather
than their guardian.
11.4 Fourthly, the past few decades has seen
Britain transform into a multi-ethnic, pluralistic society. Traditional
cultural and religious norms have been replaced by a huge diversity
of different ways of life. The state has assumes a secular role.
There is an obvious need for disparate ethnic and cultural groups
in society to identify commonalities, and to do so in a way that
affirms a mutual respect for individuals and groups making up
society. A Bill of Rights is not only capable of expressing common
values and principles but the exercise of drawing-up a Bill of
Rights is in itself a way of engaging disparate groups in a common
enterprise of state building.
Process
12. It is apparent from these reasons for enacting
a Bill of Rights that the process by which we get there may be
as important—and is possibly more important—than what
it actually says. It is only through an adequate process of engagement
with society at large that politicians can hope to produce a document
that will satisfy the needs set out above and that will command
a sense of ownership throughout society as a whole.
13. Contrast the ECHR. This document does not
benefit from any sense of ownership or association on the part
of the British people. No amount of pontificating about Britain's
instrumental role in framing the ECHR can alter this. After all,
the ECHR is the product of a quintessentially executive act: the
Government's treaty making power. It was drafted by people who
more ninety percent of the population have almost certainly never
heard of, in terms that they have never read, and at a time unknown.
Much the same can be said for the HRA. For most of society, had
they thought about it at all, people would have been considered
the proposal something of an obscure manifesto commitment which
little concerned them. It was drafted and enacted in much the
same way as any other piece of legislation without any exceptional
process of community participation and consultation.
14. Put simply, the ECHR and the HRA do not
fulfil the role of that is fulfilled by modern Bills of Rights
from the US Bill of Rights onwards, and they may not ever be able
to do so. The HRA does not establish rights as totems, as the
foundations and the guardians of British civic society. This is
a function that a Bill of Rights cannot fulfil unless society
feels a sense of association and ownership with the document.
The best way for this to be achieved is for them to be involved
in its conception.
15. The Committee has not asked about how we
should go about framing a Bill of Rights. Every country and every
situation calls for a different response.[65]
It would be possible to establish a major constitutional project
designed to reach out to different sections of society, especially
young adults. It would involve society learning about, considering
and making proposals for a future constitutional document. It
could be part of a wider effort to achieve a written constitution.
There is no reason why we need to aim to achieve such a goal in
one step. A Bill of Rights would be a good start.
Superiority
16. In terms of its legal effects, what distinguishes
a Bill of Rights from an ordinary statute protecting rights (and
even a so-called "constitutional statute" as the HRA
has been dubbed) is that it has a significant degree of superiority
over ordinary law and legislation. This is a reflection of the
fact that it is a product of a "constitutional moment"
in which society has itself set out the principles around it must
be ordered. Since these include the activity of legislating for
society, it follows that fundamental rights should prevail over
the will of the majority from time to time (still more so, as
is usually the case, a minority commanding a Parliamentary majority).
17. This usually manifests itself in two ways:
(a) by a degree of entrenchment, and (b) by conferring power on
the courts to override ordinary legislation. In my view, these
characteristic features of a Bill of Rights are necessary to give
adequate protection to basic rights. It is important to stress,
however, that it need not be the case that majority will ultimately
be displaced. For example, section 33 of the Canadian Charter
of Rights and Freedoms 1982 allows for provincial legislatures
and the national Parliament to enact legislation notwithstanding
a breach of the Charter. Importantly, however, the courts have
the power to strike down such legislation in the first instance.
Entrenchment
18. The need to secure human rights principles
from a determined Parliament is a separate and independent argument
in favour of enacting a Bill of Rights because a Bill of Rights
would confer a greater degree of protection on such rights in
broad terms than is afforded by the HRA. In today's Guardian,
David Cameron has again called for the HRA to be abolished. It
is clearly precarious. It is quite wrong that the rights that
it sets out should be capable of repeal by a simple Parliamentary
majority (usually representing a minority of the population) for
party political capital. Such rights must be put beyond party
politics by making any amendment or repeal subject, at least,
to a supermajority requiring cross-party support.
19. Again, it is important to be clear about
this argument. The argument is not that it is necessary to entrench
rights in order to ensure that Parliament does not abolish the
state's obligation to observe human rights. It is difficult to
conceive of a situation in which the UK would renounce its international
obligations under treaties such as the ECHR. The argument is rather
that entrenchment is necessary to protect the jurisdiction of
the UK courts to adjudicate upon claimed violations of human rights.
This is not a mere formality, it is fundamental to making rights
practical and effective for those living in the UK.
Ability to quash/declare unlawful primary legislation
20. The compromise adopted by the HRA by which
courts have been given the power to make a declaration of incompatibility
with the ECHR does not go far enough. A declaration of incompatibility
is neither effective nor appropriate, in that, (a) a declaration
of incompatibility does not guarantee a person with an effective
remedy for the violation of their basic rights, and (b) it does
not appropriately reflect the fact conformity with basic rights
is a condition of governing.
21. To elaborate briefly. There can be no doubt
that a declaration of incompatibility does not provide an effective
remedy in itself. An individual may obtain an adequate remedy
in certain cases and they may achieve this by first obtaining
a declaration of incompatibility. But the declaration is not itself
the effective remedy that they obtain. It is simply the means
by which the individual has managed to obtain such a remedy from
Parliament or the Government. It is not however true to say that
a declaration has no legal effects: it does. A declaration triggers
the fast-track amendment power in section 10 of the HRA. However,
because a declaration triggers a power rather than a duty to change
the law to make it ECHR compatible, an effective remedy is not
guaranteed.
22. Furthermore, even where Parliament or the
Government does act to remove incompatibility, this does not itself
usually provide a fully effective remedy in any event. It may
not erase the injustice or alter the legal position of the individual
concerned, most obviously because legislation is not generally
retrospective. Thus, whilst Mrs Bellinger's victory, in obtaining
a declaration that the Matrimonial Causes Act 1973 was a violation
of her rights under Article 8 of the ECHR (Bellinger v Bellinger
[2003] 2 AC 467), may have hastened the enactment of the Gender
Recognition Act 2004, it had no effect whatsoever on her petition
that her marriage to her husband (in 1981) was valid. The marriage
was invalid and her petition had to be dismissed.
23. The injustice is even more stark in a situation
where primary legislation denies an individual a defence to a
claim or prosecution brought against him or her. In such a case,
it is quite unacceptable that that person should be prevented
from relying on the incompatibility as a defence to the proceedings.
For this reason the courts have been forced to go to extreme lengths
(some commentators have suggested too far) to interpret such legislation
in a way that is renders it compatible with Convention rights:
see R v A (No 2) [2002] 1 AC 45 in which the House of Lords
held that a prohibition on leading evidence about a complainant's
sexual history had to be read subject to the right to allow an
accused to present his defence.
24. An often overlooked facet of this problem
is that there is no incentive for individuals to litigate human
rights cases because there is no opportunity of overturning the
law in question. It is impossible to say how many claims have
never been brought or defended or have fallen by the wayside.
Even high-profile "human rights cases" may not, for
this reason, actually be about the rights of any particular claimant
because they will have no direct interest in the proceedings.
Take for instance Wilson v First County Trust (No 2) Ltd [2004]
1 AC 846, a leading case on Article 1 of the First Protocol and
Article 6, as well as on judicial review of primary legislation
more generally. The issue in the House of Lords was whether the
Consumer Credit Act 1973 breached these articles. However, neither
the claimant nor the defendant had sought a declaration of incompatibility
and the question of compatibility was of no significance to either,
since it would not affect the dispute between them (whether sums
paid to recover a pawned car had to be repaid). The Court of Appeal
raised the issue of its own motion and the point was argued out
in the House of Lords in the absence of the parties by various
Insurance companies, the Secretary of State for Trade and Industry,
Counsel for Houses of Parliament authorities and the Finance and
Leasing Association. In my view, this underscores the fact that
a declaration of incompatibility is not an effective remedy to
protect individuals from violations of their human rights: It
provides a means for legislation to be tested against the Convention
in the context of a concrete dispute but with no bearing on the
dispute itself and offers no remedy to the victim.
25. As noted above, declarations of incompatibility
also do not appropriately reflect the fact that conformity with
basic human rights is today regarded as a condition on which state
power is exercised. Despite the fact that the courts do not have
power to strike-down legislation, the wider legal and political
context increasingly reflects the idea that the state must always
act consistently with basic human rights and its international
obligations to observe human rights principles. The idea is embodied
in the devolution statutes which make clear that the Scottish
Parliament and the Northern Ireland Assembly—both of which
have power to enact primary legislation—have no power to
act in breach of the ECHR. Even the power to make declarations
of incompatibility reflects and reinforces the idea that legislation
which breaches the ECHR lacks legitimacy. If laws that breach
the ECHR are not legitimate then the courts should not be required
to enforce them.
26. Lastly, it is worth emphasising that maintaining
the bar on the courts invalidating Acts of the Westminster Parliament
is becoming increasing anomalous when considered alongside the
superiority of human rights principles under the Scotland Act
1998 and Northern Ireland Act 1998 as well as under EC law. Take
legislation banning fox hunting as an example. This was introduced
in England and Wales by the Hunting Act 2004 and in Scotland by
the Protection of Wild Mammals (Scotland) Act 2002. Looking at
the matter from the perspective of individual rights, it is quite
anomalous and unjustified that a successful challenge in Scotland
would have led to the law being held void whereas the English
2004 Act would have stood even if the challenge had succeeded.
The position is more absurd when one considers that the courts
could have declared the 2004 Act unlawful on essentially the same
grounds as a violation of EC law if the ban had had a more direct
inhibiting effect on European trades that are associated with
hunting with dogs: see R (Countryside Alliance) v A-G [2006]
3 WLR 1017; Adams v Scottish Ministers 2004 SC 665.
Conclusion
27. In this note I have attempted to set out
some of my views on the question whether or not we need a Bill
of Rights and why.[66]
I have suggested that a Bill of Rights is desirable as, (i) an
exercise in state building, and (ii) in order to confer on human
rights norms superiority over ordinary legislation. Most importantly,
a Bill of Rights provides an opportunity for the country to renew
the social contract—the unspoken pact between citizens themselves
and between citizens and the state. It follows that significant
attention must be paid to the process by which a Bill of Rights
is conceived and questions of content and mechanics are of secondary
importance. The process must be inclusive and wide-ranging. It
cannot be rushed. Bills of Rights are commonly the result of great
constitutional disruptions or crises. We are not in this situation.
We need a Bill of Rights project that will educate, excite, and
engage all sections of society. Only in this way will we produce
a document deserves to be called our Bill of Rights.
REFERENCE
Tom Hickman MA, LLM, PhD, Barrister. Publications
include "Constitutional Dialogue, Constitutional Theories
and the Human Rights Act 1998" [2006] Public Law 306-345.
Full CV available online at http://www.blackstonechambers.com
22 August 2007
65 Many options are canvassed in Chapter 6 of a recent
JUSTICE report on a Bill or Rights for Britain and I believe the
question is also being considered by a working group at the LSE. Back
66
I have not referred to a Bill of Rights "for Britain"
because difficult issues arises as to whether we ought to have
a Bill of Rights for Britain, the UK, the British Isles or even
just England. Back
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