Joint Committee on Human Rights Written Evidence

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:


    as an exercise in state-building; and


    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.


  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.


  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.


  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.


  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.


  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

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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