31. Memorandum from Unlock Democracy
Is a British Bill of Rights needed?
Charter88, now joined with the New Politics
Network as the new organisation Unlock Democracy, has campaigned
for a written constitution, the primary purpose of which would
be to set out the limits of what governments may and may not do
in our name. We have argued that a written constitution must contain
a Bill of Rights, thereby granting every citizen a legal remedy,
should they need it, if their rights are infringed by the State.
There are a number of reasons why we feel a
Bill of Rights is essential for the UK.
1. Checking the power of the Executive
The need for citizens to have the power to limit
the actions of government is as great now as it has ever been.
The modern experience of politics is one that has a House of Commons
dominated by one political party. The power of the Party ensures
that the government gets its legislation through the Commons.
The House of Lords, fatally weakened by the lack of any democratic
legitimacy, is then browbeaten into accepting this legislation
and the Crown automatically gives assent.
Far too often, therefore, the checks and balances
placed on the powers of the Executive are too weak to be effective.
This not only leaves the citizens out of the picture, it also
leaves them vulnerable to repressive legislation. The limits placed
on the right to silence by previous Conservative Governments are
a case in point, as is the restriction on trial by jury that the
current Labour government keeps trying to enact. So too is the
detention without charge of alleged terror suspects.
2. Creating a new Britain
The constitutional reforms that have taken place
since 1997 have made the need for a Citizens' Constitution even
more urgent. The Labour Party in government has continued the
process of centralisation. Most of those things which used to
characterise the British constitution have either now been removed
or are irreparably damaged:
we no longer have a unitary state;
the sovereignty of Parliament has
been undermined by the Human Rights Act;
Cabinet government is no more than
a convenient fiction;
the move towards politicisation of
key sections of the civil service has continued; and
the monarchy no longer commands immediate
respect nor does it play its once unifying role.
With the exception of the rule of law, all that
is left of the old constitution are its least desirable elements:
winner-takes-all elections and Prime Ministerial powerthe
latter is, of course, greater than ever.
Constitutional reform has taken place in a piecemeal
fashion in the UK. Radical change there has been, but with no
overall sense of the kind of country that these reforms were designed
to help build. Each reform seems to have been enacted in isolation
without a real idea of how it would impact on the others. So,
for example, we have had:
devolution to Scotland, Wales and
London whilst the England question has remained dangerously unanswered.
The result has been a destabilising sense of unfairness in England;
a welcome Human Rights Act which
the Government insists does not impact on the sovereignty of Parliament,
but has yet to capture the public imagination and which few see
as having relevance to them;
reform of local government that may
actually reduce its openness and accountability; and
top-down reform which has helped
to foster growing voter disenchantment and cynicism with politics
in a period of unprecedented constitutional change.
If voters are to become citizens they must have
a fundamental document. Without one, they remain powerless to
exercise control over those who govern in their name between general
It has become very fashionable to talk about
British values and yet we have no shared understanding or document
to outline what these values are. A citizen-led formulation of
a Bill of Rights would be one way of starting that discussion.
However when passed, it must be entrenched within the constitution.
As a member of a European Union, which with
the Charter of Fundamental Rights has continued the process of
constitutionalising itself, the need for Britain to be clear about
its self-definition is all the greater. The process of creating
a Bill of Rights would help to foster this.
For all these reasons the time has come for
a new constitutional settlement. That is why Unlock Democracy
wants to see a citizen-led Bill of Rights.
What would a Bill of Rights add to the protection
for human rights already provided by the Human Rights Act?
Charter 88 was instrumental in campaigning for
the Human Rights Act. It was a significant constitutional development,
an important first step, and we are concerned that it is currently
under attack. However this does not mean that we believe it should
be preserved in aspic.
There are a number of flaws in the Human Rights
Act, which is one of the reasons we believe the need for an entrenched
Bill of Rights is particularly urgent.
Unlock Democracy believes that the process is
as important as the outcome. The Human Rights Act is an excellent
case in point. It was developed by lawyers and passed with very
little in the way of public deliberation or education. The public
have never really understood what is in it and therefore have
never owned it as something that protects them and should be defended.
This has been easy for the tabloid media to portray the HRA as
a criminals' charter or the preserve of celebrities. In each example
cited it was possible to refute these charges but only if you
knew what was in the Act. The government often talked about the
need to embed the HRA but this was always in the context of public
authorities who had responsibilities in terms of the Act not the
citizens whose rights it protects. This has begun to change but
more must be done to ensure a real culture of respect for human
rights emerges across Britain.
To be clear we do not want to repeal or undermine
the rights we have; we see the development of a citizen led Bill
of Rights as building on the Human Rights Act certainly not diminishing
it. Under no circumstances should the HRA be repealed as a result
of a Bill of Rights process.
What should be in a British Bill of Rights?
We believe that for the citizens to possess
a constitution they need to have built it themselves. When the
new South Africa wanted to write a constitution following the
end of apartheid it embarked on a wide-scale process of public
discussion, debate and participation. This is what we want for
For this reason we believe that it is not the
place or role of Unlock Democracy to predefine what should be
in the Bill of Rights. We are confident that a democratic process
would lead the country to a creative resolution of the problems
of representation, legitimacy and accountability. But we can offer
a set of principles which will help to describe what we think
citizen-led Bill of Rights would be like. It should:
be created with maximum public involvement;
guarantee political equality and
help society aspire towards social equality;
protect democratic representation
in and authority over government and public affairs;
provide a framework for the stable
rule of law;
ensure that individuals can claim
and protect their rights;
empower citizens as individuals and
members of communities of all types, defending every citizen's
right to be free from discrimination;
define being a "good citizen"
as exercising the power to say "no", to hold authority
of all kinds to account, and to resist as well as endorse and
assist elected authority; and
describe what citizens share and
protect the differences we enjoy; indeed, it should map and enable
differences and help to ensure they are protected as a common,
We also believe it is important to have a debate
about social and economic rights and whether they should be included
in any new Bill of Rights. By incorporating the European Convention
on Human Rights into British law, the government accepted that
we have basic civil and political rights, which should be legally
protected. Yet, it did not incorporate the European Social Charter,
which would have afforded the same status to our social and economic
rights. This, in effect, says that some rights are more important
than others, and that the rights of some people are more important
than those of others. We recently produced a pamphlet exploring
whether incorporating civil and political rights is enough or
whether we should also be looking at social and economic rights.
"A Human Rights approach to social Justice" is available
on our website (http://www.unlockdemocracy.org.uk/?p=724) and
the Stuart Weir article in particular may be of interest.
Other concerns about a British Bill of Rights
We believe a Bill of Rights should protect everyone
in Britainnot just those with formal British Citizenship.
To exclude people on this basis would render the Bill of Rights
discriminatory and fatally undermine ideas of the universality
of human rights that we believe should be at the heart of any
Bill of Rights. That some of those most vulnerable in society
would be excluded if the Bill of Rights was limited in scope to
citizens surely cannot be acceptablefor example refugees
and asylum seekers.
We are also concerned that Northern Ireland's
relationship with any process is unclear at this point, given
their own ongoing Bill of Rights process, and think that it would
be vital to ensure that the people of Northern Ireland are empowered
to decide their own role in any process.
We do not believe that rights should in all
instances be attached to responsibilitiessome rights should
never be breached, regardless of the failure of an individual
to adhere to their responsibilities.
Public Involvement in creating a Bill of Rights
Unlock Democracy believes that it is essential
for the public to be involved in the process. There are a number
of ways that this could be achieved, for example through citizens
assemblies, citizens juries or broader engagement techniques such
as those used in Northern Ireland. Whichever approach is used
the process has to be deliberative, open, representative, and
most importantly independent of Government and political parties.
Deliberative techniques such as citizens' juries
have been used at all levels of governance to involve citizens
in evaluating service delivery or to develop priorities for an
organisation. These mechanisms are effective because they allow
participants to learn about the subject, quiz experts and develop
an informed opinion rather than simply capturing an immediate
view in an opinion poll or referendum. They recognise that different
views and interests have to be balanced in society, and also enable
people to change their minds.
One of the criticisms made of involving citizens
in complex or controversial topics is that they won't understand
the subject, or will make reactionary judgments based on populist
headlines. The evidence on mechanisms such as citizens' juries,
panels and assemblies suggests that this isn't so. The experience
of the British Columbia Citizens' Assembly on Electoral Reform
shows that citizens are able to work through complex policy issues.
We have also found when running community panels to assess views
on Europe that listening to other views and debating the issues
influences participants' opinions even when they don't feel their
views have changed.
The openness of the process, selection of participants
and availability of opportunities for people to contribute, are
key factors in whether the public buys into the process. One of
the limitations of deliberative mechanisms is that to be effective
they have to involve a relatively small number of people. If groups
are too large people become passive audience members rather than
engaged participants. Citizens' juries typically involve 10-12
people and while citizens' assemblies such as those held in British
Columbia and the Netherlands can involve hundreds, this would
still be a tiny percentage of the UK population. If this process
is going to be genuinely national, individuals must believe that
they could have been selected to take part and that the participants
This is partly about ensuring the selection
process takes account of the UK's regional, gender and ethnic
diversity. But it's also about creating a relationship between
the participants and the public; a key factor in the British Columbia
experience was that the members of the Citizens' Assembly felt
that they were participating on behalf of all Province citizens.
This helped create high levels of commitment among Assembly members.
Public meetings can assist, as the public can debate the issues
facing the participants and quiz them on their experiences of
being part of the process. In British Columbia they also published
materials that were given to participants on the Assembly website
and videoed the evidence session so that anyone could follow exactly
the same process as the participants and then submit their own
views. While many people would be content to not be involved,
it is crucial that those who would, can.
The Northern Ireland Bill of Rights Commission
used a slightly different approach to engage citizens in the debate.
Rather than having an event, such as a citizens assembly, as a
focal point of the public engagement process they used "cascading",
"piggy backing" and entertainment, to stimulate debate.
Cascading involved training just over 500 facilitators to go out
into the community and talk about the Bill of Rights process,
while piggy backing involves using existing community organisation
and networks to publicise the process for you. They also used
entertainmentvideos and drama workshops to highlight the
process and explore the issues. This was a very innovative process
and certainly succeeded in involving people in the process. However
it is important to recognise that the Northern Ireland has a much
smaller population that the UK as whole. If we were to replicate
this process and scale it up for a UK Bill of Rights there would
need to be approx 15,000 facilitators for the cascading element
The process, assembly or convention must be
genuinely independent of government, and have a clear outcome.
Citizens' assemblies succeed when there are defined stages to
the process and it's known from the outset what will happen to
the findings. This could be going straight to a referendum or
reporting to Parliament before being put to a referendum but the
process itself has to be independent of government. The British
Columbia experience succeeded because once the Premier and legislature
had agreed the terms of reference and appointed the Chair, their
involvement ended. The Assembly made recommendations and they
were put to a referendum. Political parties were able to campaign
on the proposals before the referendum, and did not have to agree
with them. Even when the proposals failed to pass one of the two
thresholds for the referendum the process was still seen as beneficial.
The assembly was perceived as independent and consequently the
public and media engaged with it.
Where it is unclear what the outcome will be
the assembly is dismissed as a talking shop. This was certainly
the case with the Citizens' Assembly on Electoral Reform in the
Netherlands, where the only outcome was making recommendations
to Parliament. As there was no expectation that anything would
change as a result of the Citizens' Assembly, the process was
largely ignored. Deliberative techniques alone are insufficientthe
assembly has to be seen to be independent and have the power to
Involving citizens in constitutional reform
can be hugely beneficial both for the participants and in terms
of developing public policy; but it needs to be done well.