Anthony Barnett (London, OK): For the second time running the Lord Chancellor has called me "Anthony" in public. Third time lucky and he will agree with me? Or will it be time to emigrate? Perhaps the first time didn't count as "Charlie" Falconer is a facile barrister and it was at a Prospect round table where I'm not sure he knew me from Adam (it's closed to subscribers but I get a peak in at the top followed by Geoffrey Howe.) This time it was at an interesting launch on Monday of a weighty new report by Justice called A British Bill of Rights - Informing the Debate. You can get a pdf here. It was held at the Guardian, Alan Rusbridger chaired, the Lord Chancellor (aka Jack Straw spoke), and Roger Smith of Justice responded. I've been waiting for them to put the speeches up on the web (I'll link when this happens).
What emerged is that the government is going ahead with a Bill of Rights and Responsibilities under Straw's direction and also, in parallel, with a citizens summit on a British statement of values. A key question is whether the government is going to try and make our responsibilities justiciable (or, in plain language, tell us what we must do). The question was put forcefully by Joshua Rosenberg. I think the answer was 'no'. This is what Straw said in the speech,
Let me say here that I fully understand that 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, to our “neighbour” in the New Testament sense. But they have a degree of verticality about them too, because we owe duties to the community as a whole.
Make of that what you will. What happens when the vertical and horizontal intersect? In the discussion Straw explained that he wanted a document "That can have ethical force" and can fulfill a role of helping say "who we are, what holds us together." He is especially alarmed by the way 'rights' are being seen as a commodity that people are greedy about and compete for - the press have played a role here in making rights divisive. When talking with some of his constituents, Straw said, "it would be nice to be able to point to a text and say you have obligations."
Roger Smith made it clear that the professional human rights campaigners such as himself at Justice, Liberty, and the BIHR, want to make what we already have work - and do not looking forward to the opening of a political "pandora's box" in the name of rights. He stressed the possible impact of the national question, "The Scots will use rights for difference not harmony." As for Northern Ireland, which already has its own framework of constitutional rights in the Good Friday agreement, Justice felt it had to digitally expand the cloud cover in its satellite picture of the UK to obscure the six counties in the picture it used on the pamphlet's cover!
The Lord Chancellor and Secretary of State for Justice didn't take up the national question.
Peter Facey from Unlock Democracy, followed by Robert Hazell from the Constitution Unit, asked about the role of the planned Citizens Summit. Hazell said how the Ontario experience shows that if there is a clear political need and a well set out objective then a citizens' deliberative process could decide on something of overarching importance like a Bill of Rights. Why not take this route instead of asking citizens to summiteer over a vague statement? Straw was polite. His blunter answer, I suspect, was the one given to the House of Lords Committee I blogged a while back.
it is for ministers to propose and for Parliament to dispose – that is called democracy... We should not pretend that we are subcontracting out our decision-making to some kind of Athenian democracy because that cannot work.
I took a different angle. I support an aspirational statement of the kind Straw describes but its proper place, I suggested, is in the preamble to a constitution. It is not something that can be carried by an Act of Rights. Roger Smith ended his response by pointing out that the European Charter of Rights (pdf) is a fine, clear and attractive statement and it is a great pity Britain has not signed up for it. Take a quick read and see what you think. It shows what a modern set of rights looks like, and it would prevent the use of the national database in the way that the government intends. But precisely because rights are universal in their nature how can they be the foundation for a national, or in Britain's case multinational, statement of historic meaning and obligation?
Comments
It might just be that one way forward on a bill of rights is to expand on the idea of what Jack Straw called the 'continuum' between aspirational and enforceable rights. There is nothing to stop a bill having a number of rights in various categories. So, there could be one category for judicially enforceable rights - that would a mimimum of those in the European Convention plus any we wished to add; another category might be rights in relation to democracy - rights about voting and representation (this would have the advantage of bringing together two discourses that tend to be separate - rights and democracy); and a further category(ies) of aspirational or social and economic rights such as to effective medical care that might be enforceable only collectively as effective programmes rather than individual rights. This would meet the fear of groups like ours that this process might dilute enforceable rights and also allow a widening of the debate.
I too attended the Bill of Rights shindig at the Guardian, and actually the Lord Chancellor addressed me as "Stuart", that being my name as "Anthony" is Anthony's. The thing is that Jack Straw is a companionable sort of person. He is also very conservative and content to live with contradictions. So when he was asked how the government might entrench a new Bill of Rights - not an abstract question as the Tory leader means to abolish the Human Rights Act and its fate is not necessarily out of the woods on Straw’s side of the fence - he gave an airy assurance that it would be ok if it was loved, like habeas corpus, which no government could scrap. Cell me a sceptic, but what is the government up to with its lottery of 28 days, 90 days, 42 days and …. [fill in your guess] … if it is not doing away with habeas corpus? A death by successive cuts is still a death.
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