20. Memorandum from Francesca Klug
Professorial Research Fellow, Centre for the Study of Human Rights,
London School of Economics
GOVERNANCE OF BRITAIN GREEN PAPER—FOUR
QUESTIONS CONCERNING THE PROPOSAL TO CONSULT ON A BRITISH BILL
OF RIGHTS AND DUTIES
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 Italy. Back
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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