Joint Committee on Human Rights Written Evidence

20.  Memorandum from Francesca Klug Professorial Research Fellow, Centre for the Study of Human Rights, London School of Economics


1.   How compatible is consultation on a British Bill of Rights with one of the main purposes of Bills of Rights: protection for minorities—of all kinds—on the principle that democracies value everyone equally even if majorities don't?

  I agree that the lack of consultation on the Human Rights Act (HRA) was one of the factors which led to the misunderstandings and lack of "ownership" which have dogged the HRA. I also agree that any consultation on a British Bill of Rights needs to thoroughly engage a wide spectrum of opinion of British society.

  But if Bills of Rights are not about the fundamental ethical values that define democracies, they are nothing. What if a wider engagement unearths what we all know already—that it is not the idea of rights that is unpopular as is sometimes claimed in the debate on the HRA—but some of the groups who lay claim to them? What if 95% of respondents say they believe in a right to a fair trial but not for terrorist suspects or people accused of child abuse. What if they support due process but not for travellers seeking planning permission?

  How have other jurisdictions that have consulted on bills of rights addressed this issue?

  Every post-war bill of rights—certainly in democracies—is based on a human rights treaty emanating from the UN (including the European Convention on Human Rights (ECHR) which is a creature of the Universal Declaration of Human Rights (UDHR); adapted largely by British lawyers). Canada, New Zealand, the various Australian states now introducing rights charters, have all based their bills of rights on international human rights treaties. None of the consultations I have ever looked at—and some have been pretty extensive—have started with a blank sheet, let alone a blank cheque.

  In the Australian state of Victoria the consultation process started with a "statement of intent". In Northern Ireland the terms of reference of the consultation on a Northern Ireland Bill of Rights—which has gone on for nearly a decade now—are established in the Good Friday agreement. These stipulate that any NI Bill of Rights will build on the ECHR; it will be ECHR plus. The Green Paper affirms that this approach will be replicated in the consultation on a British Bill of Rights which is to be strongly welcomed.

  In reality it is difficult to see how a domestic bill of rights could be anything else, if the UK stays within the Council of Europe and European Union. Contrary to some suggestions, a British Bill of Rights cannot be used to dilute the rights in the ECHR or provide a specifically British interpretation of well established case law on fundamental, non-derogable rights. If the government wants to change the treaty—and I'm not recommending this—that has to be done through intervening in a case at the European Court of Human Rights (which the UK government is currently doing[82]) or by negotiating a new protocol with the Council of Europe. As things currently stand, the ruling that has caused most controversy—that the courts should not deport people where they have evidence that there is a genuine risk they will be tortured or executed[83]—applied before the HRA was introduced and would continue to apply if it were repealed.

  In addition there are the foreign policy implications of such a stance. The message to the rest of the world—that a domestic bill of rights can be used to opt out of a global commitment to fundamental human rights—could be quite catastrophic. Any dictatorship would have carte blanche to do likewise. I have lost count of the number of people from all over the world who have said this to me in the last couple of years.

2.   So what do we mean by a British—or home grown—bill of rights?

  I have used these terms myself in the past; I was part of the group that advised the Labour Party under John Smith to follow the incorporation of the ECHR with a so-called "home grown" Bill of Rights.

  Given that we now already have what is effectively a bill of rights on the statute book, the HRA, and the intention is to build on the ECHR, what does a specifically British bill of rights signify?

  It might mean a Bill of Rights characterised by British pedigree rights—like the right to jury trial or stronger privacy rights that could reduce data sharing or prevent the introduction of ID cards (although I am not sure that is what the new PM has in mind exactly).

  Perhaps it means a modernised bill of rights—which would include independent living rights, children" s rights, carer's rights, a stronger equality clause and maybe some social and economic rights; this could certainly amount to a distinctively British Bill of Rights.

  However the Green Paper hints at another meaning. The terms British citizen and British society are used pretty interchangeably in the Green Paper. They are not the same thing and this confusion needs to be clarified in any consultation.

  Whilst election rights and access to many public services and benefits might be restricted to citizens or permanent residents, citizenship is not a signifier of fundamental civil and political rights in democracies.

  The US government built Guantanamo Bay so as to opt out of the due process protections that apply to everyone on US soil through the American bill of rights. Only citizens sit on juries, but everyone in the jurisdiction of the UK has a right to jury trial.

  It is one thing to use a bill of rights to clarify the rights of citizens that already exist (which are quite complex under British law); it is another to use one as a means to narrow the protections of people who are not citizens in the UK. This is obviously not the intention but given the designation of the proposed Bill of Rights as British, this needs to be clear from the outset.

3.   What does the Green Paper mean by duties?

  Consulting on a bill of rights and duties could be a means of clarifying that human rights can only be protected if we all treat each other with dignity and respect, as reflected in the UDHR Article 29 and the preamble to the UN International Covenants. This could go some way to countering the misconception of the HRA, promoted by much of the tabloid press, as a charter to protect those who break the law.

  The proposed duties might take the form of a non-enforceable declaration for use in citizenship ceremonies and schools or as a preamble to a bill of rights [or even the HRA].

  It is rare, but there have been a few bills of rights [notably the Soviet Bill and African UN Charter] which do enunciate legal duties. This is conceivable, although caution is required, if restricted to what the green paper describes as "civic responsibilities" like jury trial or paying taxes, which are already established in law.

  However, if the reference to duties is taken to mean only the dutiful and deserving are eligible for rights—quite a popular idea—this would effectively mean using a British bill of rights to overturn human rights values now accepted by the whole of the democratic world. It was the philosophy of the undeserving or untermenchen—the idea that some people fall so low they are entitled to no rights at all—that bills of rights were partly designed to counter in the first place; from the US bill of rights to the UDHR. It is precisely because the responsibilities and duties of individuals and citizens are established in a raft of other legislation that bills of rights were conceived as a counterbalance.

  This is not to imply that human rights are absolute; with a couple of exceptions, they clearly are not. Modern bills of rights everywhere recognise legitimate and proportionate limits to rights, to protect the rights of others and the common good. This is quite different from limiting categories of people who are ineligible to claim rights in any circumstance.

  The exercise of every right implies a duty on some individual or body. Often the duty bearer is the state, sometimes other individuals, as with the responsibility of parents and carers to children in the UN Children's Convention or the requirement that all of us exercise free speech responsibly under the ECHR, Article 10.

4.   How will a British bill of rights be used to establish a "stronger shared national purpose"; one of Gordon Brown's stated aims?

  Bills of rights throughout history and throughout the globe have been used for this purpose. But there are different pulls at work in addressing the "national question" and the government's so-called "hearts and minds strategy".

  Although they can overlap, nation building—the forging of a national identity—is not the same as society binding or creating a greater sense of common purpose.

  The 1982 Canadian Charter of Rights and Freedoms failed as an exercise in nation building—Quebec is still secessionist—but was very successful as an exercise in society binding. Over 80% of Canadians consistently point to Charter values as signifying what it means to be Canadian—even though the Charter is based on an international human rights convention, as virtually all post war bills of rights are.

  If the South African and American bills of rights—admittedly introduced in very different circumstances to ours—have, by contrast, helped to nation build as well as society bind, this is because they are based on common values not kith and kin. They are an attractive signifier of what it means to be part of those nations and they have played that iconic role without denying rights to non citizens or claiming that the rights they uphold have a specific nationality.

  The Green Paper refers to a British statement of values not a statement of British values. I think that is absolutely the right way of putting it.

  Jack Straw, Secretary of State for Justice, acknowledged in a recent Chatham House essay that values like freedom, fairness, and tolerance are not exclusively British or western but are the values common to humanity. They are drawn from all the great religions and philosophies, east and west, and are reflected in the human rights charters of the UN.

  Former South African minister, Kader Asmal, who spent many years in the UK, made a similar point in a Chatham House lecture last year. He said "a shared vision of national identity" could, if based on a "mythical past", rather than the future, bring with it "the alienation of many immigrants and communities" whose experience belies the "imagining" of a Britain "that has always held dear the values of liberty, tolerance and social justice".[84]

  The strongest case for consulting on a British bill of rights in this period of ongoing debate on our national identity, is that we have no iconic equivalent to the American or South African bills of rights to turn to at times of national tension. The Human Rights Act has not achieved this status. A bill of rights can provide a unifying force in a diverse society but it will not do this if the process of adopting such a bill is used to suggest that liberty has a nationality or if it ignores the contribution of many nations, and most religions and cultures, to the human rights values recognised throughout the world today.[85] Britain's role has been formative and crucial but it must be placed in a context that makes sense to all the people of Britain.

24 July 2007

82   Ramzy v the Netherlands and more recently Saadi v ItalyBack

83   Chahal v UK, 1996. Back

84   Chatham House, 10 November 2006. Back

85   The UDHR reflects the insights and values of all major religions and cultures and directly spawned the ECHR, in spite of its European designation. Back

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