Joint Committee on Human Rights Written Evidence

23.  Memorandum from Claire Methven O'Brien[110]

  This submission strongly urges on the Joint Committee the view that a new articulation of constitutional aims, embodied in a British Bill of Rights and / or statement of values, could play a valuable role in renewing and strengthening democracy in 21st century Britain, and empowering the individuals and communities in its embrace.

  Achieving this purpose, however, would require at least the following four conditions to be met:


  The content of any new constitutional instrument must resonate with people's experience of living in Britain today. It will only succeed in doing this if it acknowledges the complex conditions of, and challenges to, the individual's exercise of autonomy, and full participation in community and society, in the here and now of British life—not its 1215, 1689 or 1950, or even its 1998, version.

  Crucially, this means that any 21st century Bill of Rights, or similar instrument, must journey beyond the domain of traditional civil liberties, and into the social and economic dimensions. Recent years have provided frequent reminders of the importance of the state's role in protecting physical security, whether in the context of terrorist activity, teenage knife crime, or human trafficking. But within an integrated global economy, of no less human rights importance is the state's role in enabling individual, family and, ultimately also our collective, economic security—for example, by ensuring access for everyone to advanced as well as basic education, and work-related training opportunity; and through measures allowing individuals to reconcile the demands of paid and unpaid work, such as the provision of essential care for children, the elderly or persons with disabilities or special needs.[111]

  Unlike post-colonial Bills of Rights,[112] recent discussion of British constitutional reform has all too often been silent on economic issues, and the close links between individual and family economic well-being, the enjoyment of human rights, and democratic participation.[113] Rather there has been a tendency, albeit unintentional, to portray individuals in passive terms, as either potential victims of state interference or recipients of state supports and benefits. People do, indeed, often require protection, from and by the state. Highlighting this is entirely legitimate and an integral part of the human rights agenda. However, a constitutional vision that fails to address the contribution of work and economic activity to human rights' enjoyment denies a fundamental dimension of people's individual and social agency. At best, this is unflattering. At worst, it is paternalistic and, in failing to acknowledge the social and economic value of unpaid work, still largely undertaken in Britain by women, it is chauvinistic.[114] As such, a menu of rights restricted to the civil and political realm is unlikely to attract higher levels of interest, loyalty and support from the population in general than has HRA 1998. If that is true, then the role of a Bill of Rights, envisaged in the Green Paper,[115] in galvanising the relationship between individual citizen and state in Britain can be expected to be nugatory.

  Any proposal for a new Bill of Rights, and certainly public consultation and deliberation about one, should therefore advert to, as possible elements of our constitution, goals including the following: universal access to the means of earning a decent standard of living for oneself and one's family; universal access to world-class primary, secondary, and higher education and lifelong skills training; full recognition and the fair reward of caring work, including parenting and with respect to the elderly and those with special needs. Ample authority for such goals can be found in international human rights materials, should that form of legitimation be considered necessary.


  Constitutions do not merely regulate the exercise of power. Whether explicitly or by implication, they also specify its ends and, in doing so, they help shape our collective political and ethical horizons.[116] Viewing historical constitutions and Bills of Rights in hindsight, it is easy to forget that, during their own times, they did not merely gather together and repeat aspects of the legal status quo. They encapsulated radical political aims. Their authors dared to imagine more just and more democratic futures for their respective countries than those they inherited, and they projected these ambitious visions through new constitutional texts. Bills of Rights, historically, have mapped where people wanted to go, not where they were at.

  The Joint Committee needs to recall this history. True, no tumultuous revolution has precipitated the current government's legislative initiative. Yet chronically declining interest and participation in formal politics, especially amongst younger age groups, make it imperative for the organs of formal politics in Britain and foremost Parliament, as its primary custodian, to act decisively now to reengage the public.

  Including broad aspirational goals in a Bill of Rights or statement of values, as an outline of, and set of signposts to, a fairer and more democratic British future, it is suggested, would in that context mark an important step forward. Certainly, some candidate goals for aspirational status can be derived from the enduring values that have found expression in Britain's political past: liberty, equality, tolerance and, indeed, democracy itself.[117] However, many of today's pressing social issues, such as climate change and environmental stewardship; inter-generational justice, in the context of sustainability and rising longevity; and social inclusion, community cohesion and integration, were beyond the contemplation of the earlier generations of parliamentarians, judges, and indeed of the jurists who drafted the post-World War II international human rights treaties. A contemporary Bill of Rights or statement of values recognising aspirations to such objectives explicitly, and articulating collective responsibility and commitment to address them, by bringing the horizons of formal politics into line with those of the people it today represents and whose interests it affects, would mark an important strengthening of our democratic fabric.


  If it is going to have any chance of being viewed as legitimate, people and elected politicians in Britain must be directly involved in the drafting of any new Bill of Rights or statement of values.[118] A number of consequences follow.

  Firstly, it militates against the appointment of a constitutional convention comprised exclusively of experts. The specialist knowledge of academics is valuable, and there may be scope for an advisory role within a broader consultation process. NGOs can serve the vital purpose of articulating the viewpoints of disparate, socially less powerful groups. But constitution-making is at root a political exercise: it can proceed on the basis of accurate fact or misinformation, but the ultimate decision is a value-driven one, in which none of us can be truly "objective". There can therefore be no substitute, in terms of democratic legitimacy and accountability, for the direct participation in constitution-making of "ordinary" citizens and their representatives.

  Second, the need for public authorship extends to agenda-setting. This means that, instead of merely being asked for an opinion on a set of pre-determined questions, lay people should be able to raise issues, both at the outset and repeatedly during the course of any consultation or deliberation, for inclusion in a Bill of Rights. There should also be mechanisms to allow them, if they secure an adequate level of support from others, to get those ideas onto the agenda for wider discussion.

  Some have expressed concern that an open agenda approach would yield outcomes undermining existing human rights protections in Britain. However, there are means of avoiding this risk, while preserving the bottom-up democratic quality of a consultation process. For instance, proposals with any negative human rights implications could be identified by an independent moderator, and be made subject either to immediate exclusion from discussion on that basis, or following a vote. Alternatively, a special majority, or consensus, of participants could be required for any such proposal to be included on the meeting agenda, and again amongst the forum's conclusions. Adoption of any final Bill of Rights text, it seems likely, would in any case require the approval of both Houses of Parliament, probably by special majority. Undeniably, there is a greater likelihood, with an open agenda approach, of genuine and heated disagreement amongst participants. Nonetheless, it is submitted, the gains, in terms of the greater "buy-in" that goes with at least partly-devolved control over deliberative agenda, and the demonstrably stronger commitment that attaches to the outcomes of processes in which people feel procedural fairness has been observed,[119] exceed those costs.

  Third, in the abstract, legitimacy is directly related to the quantity of participation: the greater the number of people involved in debating and deciding a constitutional framework, other things being equal, the greater its normative authority. In reality, in a country of 60 million inhabitants, there are practical constraints on the scale of exercise that can be undertaken without simultaneously compromising the quality of discussion. Some balance must be struck between the two. Certainly, whatever the scale of consultation, it will require the allocation of substantial public resources to be effective and to ensure equality of access to it. Resources should be available on a grant basis to local government and third sector organisations to support the contributions of people from less powerful socio-economic groups.

  All this leaves open the question of the precise mechanisms of public deliberation about a Bill of Rights or statement of values. There is no magic bullet here, and whatever approach is taken will not be perfect. The point is therefore to maximise, as far as practicable, the extent to which consultation about a democratic constitution is itself injected with democratic values.[120]

  With this in mind, the preference of this submission would be for consultation at local level (but at least at regional level) through a network of mini-conventions; meeting repeatedly over time, rather than on a one-off basis; according to a flexible agenda over which participants could exercise some control; and to reach conclusions to a final deadline within two years of commencing the process. Arrangements for appointment of delegates to participatory budgeting processes, for instance, as developed in Porto Alegre, may provide some useful templates for local citizen involvement.[121]


  Public authorship is clearly one way of generating a sense of public ownership over a Bill of Rights. It may be the main one. But as the experience of the Human Rights Act 1998 has shown, if it is going to have significant impact on the conduct of politics and the making of law and policy, and enjoy broad public understanding and support, political discussion of a Bill of Rights, little "p", cannot be a one-off event, nor can it be confined to the constitutional cognoscenti. Simultaneously, political discussion of a Bill of Rights, big "P" must go far beyond that provoked by contentious arguments made in court and the specious observations of hostile news media. Neither can adequate public awareness and interest be sustained by the inquiries of a single dedicated Parliamentary committee, however assiduous it might be in the pursuit of its mandate.

  So, the formal status and character of a new Bill of Rights must make it amenable to ongoing, widespread and spontaneous citizen engagement.[122] This leads to four further points, that may be counter-intuitive to anyone whose thinking about a Bill of Rights has been framed with reference to the high-profile legal models of HRA 1998 or the US Constitution.

i)   Constitutional diversity

  Save in the most technical legal terms, the HRA 1998 incorporates into law in Britain the text of an international treaty signed by the United Kingdom of Great Britain and Northern Ireland. Accordingly, its function is to ensure universal coverage across that territory of the ECHR's protected human rights. Yet, on top of pre-existing legal (not to mention political, linguistic and cultural) heterogeneity within the UK, the 1997 devolution package triggered a process of constitutional differentiation which, it seems, has grown legs of its own and will continue marching. As a result, a federal UK, and /or formal devolution to English regions, are no longer unthinkable scenarios. Any new Bill of Rights or statement of values must engage with these possible future realities. At minimum, that means contemplating different bills of rights, with variable, or "asymmetric" content (eg linguistic rights) across devolved jurisdictions, as is the case in Canada.[123] Maximally, it might mean that rights and processes of secession are included in a Bill of Rights. At any rate, in terms of the relevance requirement state above, and unfolding political events, such issues should certainly be put on the agenda for consultation.

ii)   Home-grown rights

  As we in Britain know well, constitutional laws, rights, and values have a range of avatars. They need not emanate from a single formally binding legal document. Nor do they necessarily originate in statute or court decisions, or international human rights treaties. In addition, there are political and ethical principles and values that are constitutive of Britain, and which many of us feel strongly committed to, that are not written down anywhere in positive law, but are instead embodied in the institutions, conventions and practice of government, politics, public services and collective life, and in people's relationships with, beliefs and expectation about them. Think, here, of: the gradual abolition of the death penalty, slavery, cruel and unusual punishments, bonded labour and servitude, child labour; the extension of the franchise; the regulation of hazardous working conditions; the right to form and be part of trade unions; gradual recognition of the equal rights of women; the establishment of unemployment and sickness insurance; the prohibition of employment discrimination; due process of law, including the right to defence counsel in criminal proceedings; and access to basic education and health care free at the point of delivery. All these developments it is suggested, embody constitutional values that, nowhere explicitly identified as such, are nonetheless sunk within British institutions.

  It is important that a Bill of Rights/statement of values, as well as the preceding consultation, draw attention to this indigenous constitutional and human rights heritage, and offer scope for their formal recognition as such, along with the content of international human rights instruments, for three reasons.

  First, these precious and proud achievements provide a solid basis for an inclusive constitutional patriotism in which everyone in Britain has, and can see themselves to have, a stake—instead of the atavistic ethnic and cultural patriotism to which social exclusion and divided communities can occasionally lead. Second, in light of public disinterest and cynicism, already noted above, flagging up that these precious political advances were hard-won historically, through former generations' collective engagement in democratic politics and activism, would give a much needed boost to the public image of our formal politics.

  Third, drawing attention to the close alignment of Britain's constitutional heritage with the content of international human rights standards, and that, in fact the former provided precedent for much of the latter, would counteract the misapprehension, following from inaccurate media coverage of HRA 1998, of human rights as "foreign impositions", alternatively, as non-sensical rules dreamt up by lawyers.

iii)   Dynamism and revisability

  It is a human impulse to hold on to something good. This explains the desire to "nail down for all time" Bills of Rights through entrenchment. On the other hand, all things, including constitutions, must change. Relationships between individual, state and community are not immutable: they continue to be influenced by technological, economic, social and cultural trends—and constitutions and the political institutions they govern must find ways of updating themselves to reflect the positive aspects of such evolution.

  As a consequence, it is suggested, though on one hand, a Bill of Rights must not in any way diminish the UK's existing duties under international human rights law, on the other, it must be invested with the qualities of dynamism and revisability. As constitutional characteristics, moreover, these are endogenously British: dynamism and revisability are the very essence of the principle of Parliamentary sovereignty, the lifeblood of British constitutionalism and democracy for at least a few centuries.

  In keeping with that tradition, Parliament and other democratically elected bodies should be appointed to the role of principal guardian of a Bill of Rights. And Parliament, and devolved bodies, as well as the people, through referenda, should be able to add to or amend the Bill of Rights, with appropriate safeguards in place—but not to the extent that it would be fixed in stone.

iv)   Justiciability

  The courts, for their part, should retain all their existing responsibilities for constitutional and human rights adjudication under the common law, HRA 1998 and other international human rights treaties. Were it decided a Bill of Rights should ground additional rights of action, it would certainly be one option to allocate their oversight to the courts, too.

  However, that should not be a foregone conclusion. There is no obstacle to the adoption of a variable geometry for protection of constitutional rights in Britain. Indeed, given that some constitutional protections sound only in the common law, and not under HRA 1998, and vice versa, and some do not operate via the courts at all,[124] a patchwork regime is what we already have.

  In conclusion, this means that full consideration should be given, in addition to the option of a Bill of Rights litigable before the courts, to the following: a Bill of Rights grounding actions before a non-judicial constitutional body[125]; a wholly or partly non-justiciable Bill of Rights, with oversight via Parliamentary Committee or other Parliamentary body, and through similar bodies at the level of devolved regions. A final implication is that the non-justiciability of specific rights or values presents no ground whatsoever for their exclusion from a new constitutional instrument. Even in a text in general devoted to the establishment of justiciable rights, non-justiciable goals could, according to the reasoning advanced above, be usefully and legitimately included in a dedicated chapter, or a wide-ranging Preamble.

June 2008

110   Doctoral Candidate, Law Department, European University Institute, Florence. Back

111   More detailed argumentation on this point, and in general in relation to the need for recognition of social and economic rights in Britain's constitutional arrangements, is presented in C Methven O'Brien, "Entrenching social citizenship: the case for social and economic rights", 16 Renewal 1 (2008), 45-57. Back

112   See, for instance, Constitution of Ireland (1937), Chapter XIII, Article 45 (Directive Principles of Social Policy, which include eg the right of all citizens to "an adequate means of livelihood" and the responsibility of the state to protect the economic interests of the weaker in the community); Indian Constitution (1949), Part IV; South African Constitution (1996), Chapter II, Section 25 (establishing the public interest in the distribution of property, including but not limited to land, on an equitable basis), and Section 22 (freedom of occupation and trade profession). Back

113   S. Weir (ed.), Unequal Britain: Human Rights as a Route to Social Justice (London: Politico's, 2006) marks an exception. Back

114   See further, Montre«al Principles on Women's Economic, Social and Cultural Rights, 26 Human Rights Quarterly (2004), 760, and UN Committee on Economic and Social and Cultural Rights, General Comment No.16, The equal right of men and women to the enjoyment of all economic, social and cultural rights, UN doc.E/C.12/2005/4 (11 August 2004). Back

115   Ministry of Justice, The Governance of Britain (London: TSO, 2007). See further Citizenship: Our Common Bond. Lord Goldsmith QC Citizenship Review (London: Ministry of Justice, 2007). Back

116   J Dunn, The Cunning of Unreason: Making Sense of Politics (London: HarperCollins, 2000), 258. Back

117   The Governance of Britain, above n.5, para.204 presents further suggestions. Back

118   See, for general support of the arguments made in this section, A. Fung, "Recipes for Public Spheres: Eight Institutional Design Choices and Their Consequences", 11 The Journal of Political Philosophy 3 (2003), 338, and A Fung & E Olin Wright (eds.), Deepening Democracy: Institutional Innovations in Empowered Participatory Governance (London: Verso, 2002). Back

119   Fung, above n.8, at 344. See further, "Toward justice fall all: procedural justice and the review of citizen complaints", in W. Geller and H. Toch (eds.). Police violence : understanding and controlling police abuse of force (New Haven: Yale University Press, 1996), 234. Back

120   For consideration of various participatory decision-making designs, see contributions in B. de S. Santos (ed.), Democratizing democracy : beyond the liberal democratic canon (London /New York: Verso, 2005), Part IV: Participatory Democracy in ActionBack

121   B. de S Santos, "Participatory Budgeting in Porto Alegre: Towards a Redistributive Democracy", and L. Avritzer, "Modes of Democratic Deliberation: Participatory Budgeting in Brazil", Ch.12, in Santos, supra n.10. Back

122   Note: the term citizen is not used in its technical legal sense in this submission. Back

123   Constitution Act 1867 (UK), 30 & 31 Vict., c.3, reprinted in RSC 1985, App.11, No.5 ("British North America Act"). For discussion, see G. A. Beaudoin and E. Mendes (eds.), The Canadian Charter of Rights and Freedoms (Toronto: LexisNexis/Butterworths, 2005). Back

124   Eg Ombudsmen, complaints and investigations in relation to public authorities, and of private organisations under anti-discrimination legislation. Back

125   As is France's Conseil ConstitutionnelBack

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