35. Letter from Michael Wills MP,
Minister of State, Ministry of Justice
In the Green Paper The Governance of Britain
the Government signalled its intention to embark on a radical
process of constitutional renewal, focussed on redistributing
and diffusing power away from the centralised state and forging
a new relationship between the citizen and the state. This process
continues the programme of radical reform the Government has undertaken
since coming to power. Devolution has transferred power away from
Westminster to the devolved legislatures and administrations in
Scotland, Wales and Northern Ireland and London and to local authorities.
The Human Rights Act has brought home fundamental rights of the
individual against the state, putting them at the heart of our
domestic legal culture. The Freedom of Information Act has established
transparency as a mechanism for empowering the individual against
the state.
The debate that we intend to undertake on the
Bill of Rights and Responsibilities is a crucial part of this
wider debate about the location of power in our society, and can
only properly be understood through this prism. The Bill will
set out fundamental principles which shape our democracy and which
should inform the decisions of government, parliament and the
courts. We are bringing it forward, not necessarily to add new
rights, but above all to ensure the system works better to protect
the individual against the powerful. Alongside this will be a
clear articulation of the responsibilities we owe to each other,
that are intertwined with the rights we enjoy, as members of our
society.
In the United Kingdom many duties and responsibilities
already exist in statute, common practice or are woven into our
social and moral fabric. But elevating them to a new status in
a constitutional document would reflect their importance to healthy
functioning of our democracy. We live in an individualistic, consumerist
age and that presents us with new challenges.
Profound social and economic change accelerated
by globalisation make the case for a new Bill of Rights and Responsibilities
in the UK. People are more independent, more "empowered",
but this can lead to rights becoming commoditised, yet more items
to be "claimed". This is demonstrated in how some people
seek to exercise their rights in a selfish way without regard
to others—which injures the political case for inalienable,
fundamental human rights.
Over many years there has been debate about
the idea of developing a list of the rights and obligations that
go with being a member of our society. A Bill of Rights and Responsibilities
could give people a clearer idea of what we can expect from the
state and from each other, and a framework for giving practical
effect to our common values.
There is not, and cannot be an exact symmetry
between rights and responsibilities. In a democracy, rights tend
to be "vertical"—guaranteed to the individual
by the state to constrain the otherwise overweening power of the
state. Responsibilities, on the other hand, are more "horizontal"—they
are the duties we owe to each other. But they have a degree of
verticality about them too, because we also owe duties to the
community as a whole.
In seeking to bring greater clarity and status
to the relationship between the citizen, the state and the community,
we agree with the words of former Lord Chief Justice Lord Bingham
(now the Senior Law Lord) when he said that the importance of
predictability in law must preclude "excessive innovation
and adventurism by the judges". That was echoed by Justice
Heydon of the High Court of Australia who suggested that judicial
activism, taken to extremes, could spell the death of the rule
of law.
If, for instance, economic and social rights
were part of our new Bill, but did not become further justiciable,
this would not in any way make the exercise worthless. There is
great power in symbols. As the jurist Philip Alston described,
Bills of Rights are "a combination of law, symbolism and
aspiration". What he makes clear is that the formulation
of such a Bill is not a simple binary choice between a fully justiciable
text on the one hand, or a purely symbolic text on the other.
There is a continuum. And it is entirely consistent that some
broad declarative principles can be underpinned by statute. Where
we end up on this continuum needs to be the subject of the widest
debate.
A Bill of Rights and Responsibilities could
give people a clearer idea of what we can expect from the state
and from each other, and provide an ethical framework for giving
practical effect to our common values.
A Bill of Rights and responsibilities will impose
obligations on government: but will also makes clear that the
citizen has mutual obligations. As to the extent of this `horizontal'
relationship, we can look more recently than Tom Paine to the
example of South Africa as to how this could work in practice.
Justice Kate O'Regan, Judge of their Constitutional
Court describes the operation of this idea of "horizontality":
"What is clear already is that when a court
develops the common law, for example, libel law, the court must
consider the obligations imposed by the Bill of Rights. In the
case of libel, this involves several rights: freedom of expression
on the one hand and the right to dignity and privacy on the other.
The court has to consider these rights in developing the rules
of common law liability"—she says, and crucially, she
goes on: "Our constitution does not carry a notion that one
forfeits one's rights entirely if one does not observe ones obligations".
We need to look at the lessons from South Africa
as from other jurisdictions, as to how they have applied a Bill
of Rights in their own national contexts and how this might apply
to the United Kingdom.
However, if specifically British rights were
to be added to those we already enjoy by virtue of the European
Convention, we would need to ensure that it would be of benefit
to the country as a whole and not restrict the ability of the
democratically elected government to decide upon the way in which
resources are to be employed in the national interest. For example,
some have argued for the incorporation of economic and social
rights into British law—as they have in South African law.
But this would involve a significant shift from Parliament to
the judiciary in making decisions that we currently hold to be
the preserve of elected representatives including decisions around
public spending, and implicitly, levels of taxation.
The Green Paper we will be publishing shortly
on a new Bill of Rights and Responsibilities will set out fundamental
principles which shape our democracy and should inform the decisions
of Government, Parliament and the courts. Alongside this will
be a clear articulation of the responsibilities we owe to each
other, that follow the rights we enjoy. As Lord Hope has said,
"Respect for the rights of others is the price we must all
pay for the rights and freedoms it guarantees." This needs
to be more widely recognised if we are to secure popular acceptance
of the importance of these rights in our constitutional arrangements.
This Bill will set out the rights we enjoy and
the responsibilities we owe as members of society. We are bringing
it forward, not necessarily to add new rights, but above all to
ensure that the system works better to protect the individual
against the powerful—and that it is recognised as doing
so. As citizens become more aware of their rights, so governments
become more sensitive to them. In a democracy, education can be
as important as litigation in protecting the individual. The greater
the cultural change, the less need there is for litigation to
secure it. In articulating the rights we enjoy and the responsibilities
we owe, this Bill will have a fundamental role to play.
6 March 2008
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