Joint Committee on Human Rights Written Evidence


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 power—the 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 elections.

  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 the UK.

  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, living inheritance.

  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 Britain—not 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 acceptable—for 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 responsibilities—some 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 represent them.

  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 entertainment—videos 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 alone.

  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 insufficient—the assembly has to be seen to be independent and have the power to propose change.

  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.

June 2008





 
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