Bill of Rights

In an extraordinary interview on the Today programme this morning the Prime Minister single-handedly announced the formation of a National Council for Democratic Renewal.

He did so in the way that it takes a magician only one hand to produce a rabbit from the hat. Only his legerdemain is showing.

"I advocated freedom of information twenty years ago and have been advocating the case for a written constitution for some time," he said. Well, no. As perhaps the person who did the most to persuade Brown to embrace the case for constitutional change twenty years ago, in his Charter 88 Sovereignty lecture, and who has talked with him on the topic since and followed his announcements carefully, I know of no instance when he publicly and unequivocally advocated a written constitution, or even ‘the case for one’ (that magician’s positioning again). He often showed a codified ankle to attract the following of those us who found it attractive. But it was flirt.

I always suspected that what he himself found most attractive about the idea was that he might sit down and write it, to be hailed as the father of Britain.

Along with a number of other people, I went along to Parliament’s Portcullis House last Wednesday. It was for a meeting on the government’s Green Paper on a Bill of Rights and Responsibilities hosted by the JCHR – the Joint (meaning Lords and Commons) Committee on Human Rights. Henry Porter and Guy Aitchison have both reported on it in their ways. Most members of the Committee were present, as were some key representatives of the three main political parties: Michael Wills, currently Minister at the Justice Department, whose name and picture adorn the Green paper alongside Jack Straw; David Howarth the Liberal Democrat shadow Minister of Justice, and Dominic Grieve the Tory shadow for Justice, a possible successor to Jack Straw. Each addressed us about the Green Paper and related issues.

Also in attendance were a number of people who had submitted evidence to the JCHR’s inquiry on a Bill of Rights, though those who stayed away - or who were denied admission - probably had the best of it. Only after leaving the meeting did I realize that neither the Chairman of the JCHR (Andrew Dismore MP) nor the Justice minister (Michael Wills MP) had answered my question about why trade union rights are not seriously addressed in either the JCHR’s own report on a British Bill of Rights based on the extensive hearings it held, or the government’s subsequent Green Paper. Most of us may have given up on the latter as Guy has blogged. But, as I explained in my intervention, the exclusion of this issue from the former is particularly remarkable; it is more than a silence, and is closer to a suppression in view of the facts that

• four of the 31 written submissions to its inquiry (by TULO (the Trade Union and Labour Party Liaison Organisation), TUC, Unite the Union, and Thompsons (the trade union solicitors) directly addressed this question;See HL 165-II, HC 150-II, Ev 168 - 175?

John Jackson (London, Mishcon de Reya): It would be niggardly and ungenerous to deny the Ministry of Justice any praise for its long awaited Green Paper, Rights and Responsibilities: developing our constitutional framework. The 64 page document is interesting, well written and reflects many hours of careful work. The discussion of rights is far more compelling than that of responsibilities. That latter could have been summed up in one quotation from Thomas Paine: ‘A declaration of Rights is, by reciprocity, a Declaration of Duties, also. Whatever is my right as a man, is also the right of another; and it becomes my duty to guarantee as well as to possess.' That thinking is reflected in the views of my American friends who regard the upholding of the US Constitution as their highest civic duty. To go beyond that and attempt to erect a ‘system' based on the duties of citizens to their state looks unwise.

In one or two places the Green Paper is also politically courageous. The statement  ‘Today, our constitution is a rich fabric of statute, common law and convention and our fundamental rights and freedoms are embedded throughout it. Inevitably these have been shaped by the beliefs and perspectives of the times in which they were created and new demands continually arise to create new challenges. - - - - The Government believes the time is right to explore the case for drawing together and codifying such rights in a new constitutional instrument.'. is an example. Leaving aside the point that the ‘fabric' is so ‘rich' as to be completely indigestible by the ordinary person, most governments, knowing that within eighteen months they would be facing a critical electorate, would have avoided opening up what their party political advisors will have been telling them could become the proverbial can of worms.

George Williams (Gilbert + Tobin Centre of Public Law, University of New South Wales): As the United Kingdom faces a possible national debate on the future of the Human Rights Act and a possible Bill of Rights - not to mention debate over the Northern Ireland Human Rights Commission advice to the UK government on a Bill of Rights for the province - it may be of value to keep eyes on the national debate that is beginning in Australia on whether to have its own human rights act.

It surprises many that Australia lacks a bill or charter of rights, but in fact it is the last democratic country in the world without such an instrument. This is not due to a lack of trying, with failed national attempts to bring about such a law in the 1970s and 1980s. The latest attempt represents a once in a generation opportunity to bring about national reform. It has been initiated by the newly elected Rudd Labor government that came to office in late 2007.

Australia, a federal state, does have charters of rights at the state and territory level. The first to be enacted was the Australian Capital Territory's Human Rights Act 2004, followed by the Victorian Charter of Human Rights and Responsibilities 2006. Community-based inquiries in Tasmania and Western Australia have recommended like reform. These processes, like the just announced national inquiry, were based upon that undertaken in Victoria. I was the Chair of the Victorian inquiry which proved to be extremely effective in giving Victorians a say, with over 2,500 submissions, over 100 meetings around the state that produced a sense of reform being built from the ground up. The success of the Victorian process has recently been recognised by the UK's Joint Committee on Human Rights.

Australia's national human rights consultation is being run by an independent committee of four people chaired by Father Frank Brennan. It is seeking submissions by 29 May 2009 and has been asked to report back to the federal government by the end of August 2009. The inquiry has already attracted considerable media attention, and grassroots and other committee organisations mobilising to have their say.

Stuart Weir (Cambridge, Democratic Audit): You may well believe that everyone in this country enjoys the basic human right not to be thrown out of their home without a court order. They don't. In October last year, the High Court ruled (in a case involving Horsham Properties) that lenders-banks, building societies and investment companies-were entitled to sell properties, including people's family homes, without having first to go to court for an order, following just a single default on a mortgage payment.

That objective has been achieved as a consequence of the mortgage small print- according to the judge, "conveyancing shorthand"-that is in practically every mortgage deed, and that has a devastating effect on a householder's position.  The new owner, possibly an investment company or someone seeking a home, is then entitled to a summary possession order against the householder who is rendered by law a trespasser in his or her own home, which they no longer own. There is no defence in law against that claim.

The potential for grave social and economic distress is huge.  Home repossessions resulting from defaults on mortgage repayments are rising dramatically. According to the Council of Mortgage Lenders, 45,000 homes were expected to have been repossessed by the end of last year, and 75,000 this year. Some 168,000 people are in mortgage arrears. The Financial Services Authority (FSA) and the Council of Mortgage Lenders report that more than one million households are likely to default on a mortgage payment in the next year.

James Graham (Quaequam Blog!): Anyone who thinks our civil liberties will be any better protected by a Conservative Government should think again. Speaking in Bangor (the Northern Ireland flavour) on Friday, the News Letter reports Shadow Home Secretary Dominic Grieve saying:

… there is “a rights culture” which is “out of control”, not just in Ulster, but throughout the UK.

It did not help that “the undeserving in society” can often use rights legislation for personal gain, he added.

The Conservatives, he suggested, intend to create a UK Bill of Rights which would have in-built safeguards to prevent those “whose own behaviour is lacking” from abusing the powers.

I’m used to people from across the political spectrum differentiating between the “deserving” and “undeserving” poor when it comes to welfare but not when it comes to fundamental rights. This rhetoric even goes beyond the talk about “rights and duties.”

Damian O'Loan (Paris): Northern Ireland's Human Rights Commission has delivered its report advising the Labour government on the content of a NI Bill of Rights. Acting on recommendations from a cross-party and civic society Forum, It has done well to reduce an unfocussed report into this clear document. It is important for a few reasons:

The Conservatives have pledged to repeal the Human Rights Act, leaving the ECHR protections. This would reduce sovereignty in that judges in Brussels would take decisions, based on EU legislation, now taken in London on Westminster legislation. In any case, if they are true to their pledge to hold a referendum on EU membership outright, we could be left with neither.

Patrick Corrigan, (Amnesty Blogs: Belfast and Beyond): Today is international Human Rights Day and, ten years after the Multi-Party (Belfast/Good Friday) Agreement, we will finally see the advice on the shape and content of a Bill of Rights for Northern Ireland handed over by the NI Human Rights Commission to the Secretary of State, Northern Ireland Office Minister Paul Goggins.

I’ll be in Castle Buildings at Stormont (venue for the negotiations which led to the historic Agreement) this afternoon for the official handover. Even before this event, there is already news that the two Commissioners (out of ten) with connections to Northern Ireland’s main unionist parties, are withholding their support for the otherwise agreed advice.

John Jackson (London, Mishcon de Reya): Here in California, eight hours behind British time, I have only just got round to reading Henry Porter’s excellent article in last Sunday’s Observer.

His call for a Bill of Rights with entrenched privacy laws may well be echoed strongly during the important Convention on Modern Liberty to be held next February and, hopefully, echoed with the rider that the protections we already have under the Human Rights Act should not be trimmed away.

John Jackson (London, Mishcon de Reya): The texts of Nick Herbert's public speeches sometimes give the impression of having been drafted first by a well informed assistant, with a sound knowledge of our constitutional history, and then given a ‘going over’ by Herbert to provide a (Conservative Party) politically correct gloss. The result can read in an oddly disjointed – almost Palinist -  way. This is a pity: it diminishes the value of serious attempts to discuss serious questions in a serious way. The public lecture commenting on a decade of the Human Rights Act, sponsored by the British Institute of Human Rights and delivered by Herbert yesterday at the site of the British Library’s Taking Liberties exhibition is a striking example of this.

Despite the disjunctions, some good, and some bad,  points emerged clearly from  Herbert’s lecture.

He was right to:-

• Warn against the dangers of judicial activism;
• Emphasise that human rights cannot have meaning, or exist, without popular consent;
• Say ‘ – in society we have responsibilities to one another.’ and ’- there is a danger that rights become not tools for protecting the individual within society, but advancing the individual against society.’

But wrong to:-

• Argue that judicial activism has been accelerated by the Human Rights Act which has undermined parliamentary sovereignty and the separation of the powers;
• Imply that popular consent can only be expressed through parliamentary representation;
• Suggest that the best way for our society to ‘re-balance’ rights and responsibilities is via a British Bill of Rights and Responsibilities proposed by a (Conservative) government and, following debate, converted by a (Conservative) government dominated parliament into an Act ‘preventing judge-made law’ and restoring ‘the place of parliament’.

Damian O'Loan (Paris): Amidst the problems at Stormont, nationalist Mark Durkan has given a reminder of the need to move towards voluntary coalition. The SDLP leader suggests eventually replacing the Nationalist/Unionist “designation” system of the Good Friday and St Andrew's agreements with the forthcoming NI Bill of Rights, alongside a weighted majority, as the basis of government.

Andrew Blick (London, Democratic Audit): The UK Parliament has a dubious record as a protector of human rights. The Commons vote on 42 days is only a recent example. For instance there is a long history of governments of various parties implementing large-scale internment programmes on spurious security grounds while meeting little in the way of significant resistance from the legislature. The malign impact of this poor performance is magnified because under UK constitutional arrangements, Parliament is theoretically supreme, with the judiciary lacking the power always fully to uphold freedoms.

For these reasons we should congratulate the efforts of a parliamentary body which, since its instigation in 2001, has in effect acted as a lobby group within Parliament for the human rights cause, namely the Joint Committee on Human Rights (JCHR).

There is discussion by Claire O'Brien and Guy Aitchison below on the content of the recent JCHR report on a bill of rights. While the proposals should be subject to scrutiny and they are not all as far reaching as I would like, it is important to get a perspective on them.

In the latest contribution to the OK debate on Labour after Brown, Guy Aitchison looks at proposals for a progressive new Bill of Rights for Britain.

You can find the rest of the Labour after Brown series in the box on the left of the site.


The Joint Committee on Human Rights report (pdf) on a UK Bill of Rights was released on Sunday. It was in August when Parliament was not sitting. Nonetheless, it is an important reminder that somewhere, amidst the slow train wreck of Brown's Government, the Governance of Britain agenda with which he launched his premiership limps on.

The Joint Committee is made up of 11 MPs and peers from the Tories, Labour and the Lib Dems with one cross-bench peer. Understandably, much of the media reaction has focussed on their recommendations that social and economic rights be included in any new bill. This is the second JCHR report that has shown itself open to movement on social and economic rights; membership was different last time. That Parliament is now prepared to think seriously about a Bill of Rights containing welfare rights as well as other rights outside the "classic" list of liberal rights in the European Convention is something to be welcomed. The new report signals a remarkable positive shift in the attitudes of parliamentarians since the advent of the Human Rights Act ten years ago. The Tory peer Lord Onslow, for example, started out on the Committee as something of a human rights sceptic. Today he is amongst the first to raise "Convention points" in the Lords and has contributed to a report which may serve as a landmark in the development of our constitutional discourse.

In what follows I try to set out in some detail what the parliamentary proposals are and what they might mean in practice.

Tom Griffin (London, OK): Parliament's Joint Committee on Human Rights has today published a report on the prospect of a UK bill of rights.

Committee chairman Andrew Dismore argues that the report's recommendations offer a solution to the thorny question of how such bills should deal with social and economic rights.

The Human Rights Act is a parliamentary model of human rights protection. Courts have an important role, but parliament has the final say.

Our new bill of rights could build on this unique relationship between the courts and legislature. It could provide, for example, that economic and social rights are not directly enforceable by individuals against the government, but make it the government's duty to achieve the progressive realisation of those rights, with a limited role for the courts to review the measures taken. 

Guy Aitchison (London, OK): There's an interesting article by Unity on the Bill of Rights debate over at Liberal Conspiracy. He argues that since all three main parties are now promising a Bill of Rights they should be clear about what it is they are proposing in their next manifestoes so voters aren't forced to sign a "blank cheque." I think this is an important point though I would add that the parties should also be clear about the process they are proposing to arrive at such a Bill. I responded to Unity's article in the comments with a few thoughts on the Government's current thinking based on my time at the Compass conference last week. I wasn't going to blog this since it's similar to other stuff I've written about the Governance agenda recently, but seeing as people are now talking about it here's a tidied up version of the comment I left which may be helpful to people:

At the Compass conference last week I attended an Unlock Democracy seminar on a Bill of Rights and Responsibilities at which Michael Wills, Minister for Constitutional Renewal, was speaking (along with Francesca Klug and Trevor Phillips). I asked the minister whether including "responsibilities" in the Bill wasn't really about "disciplining" the population (It was only half tongue in cheek when I suggested a model here might be the USSR Constitution, Articles 60 through 69 of which defined the Soviet citizen's duty to work and observe labor discipline; to protect socialist property and oppose corruption and to be "uncompromising against anti-social behaviour"). He assured me that it wasn't about this at all and that rights would not be "contingent" on the performance of duties. He implied it was partly a tactical move to keep the Right on board by emphasising that the enjoyment of rights does not absolve one of social responsibilities.

Billy Bragg (Dorset, musician): The Government are constantly talking about the idea of Britishness yet seem unable to come up with a clear definition of exactly what that means.

I'm proud of our diversity but I admit there is a hole at the centre of our multicultural society - what we need is something to bind us together as citizens.

While it's right there should be recognition when you become a full member of society at 18, asking teenagers to take a pledge of allegiance is little more than a sticking plaster for a larger problem. I support giving young people incentives to volunteer and get involved in communities - by paying tuition fees, for instance. That's a practical way to express your membership of society. It would earn you respect as an individual, and everyone needs that kind of recognition.

Debbie Moss reviews Keith Ewing's IALS lecture on Constitutional Reform.

Ewing makes a convincing case that Parliament and not the courts ought to guard our liberties.

Guy Aitchison (London, OK): Yesterday evening Michael Wills gave the annual Constitution Unit lecture to a packed out room in UCL's School of Public Policy. Its title was "Kick-Starting a National Debate on a Bill of Rights and Responsibilities" but Wills took the opportunity to speak more broadly on the whole Governance of Britain agenda. The Government, he said, recognises that debate on a British Bill of Rights and Responsibilities "can only make sense in the context of the wider debate about power in our society." And so a BBRR will form part of the ongoing "struggle" to distribute power so it "flows freely" and does not become concentrated and used arbitrarily.

Suzy Dean (London, The Manifesto Club): Last Thursday, while visiting George Washington University, Jack Straw declared that the proposed Bill of Rights and Responsibilities would involve a mixture of symbolic and declaratory principles on cultural and social issues as well as justiciable rights.[1] Going beyond the traditional scope of a Bill of rights, such as the US bill which stops at outlining those rights that are political, the impending here is set to build on the Human Rights Act[2] by covering social, economic and environmental rights, along with responsibilities.

Guy Aitchison (London, OK): It went largely unnoticed last week, but Justice Minister Michael Wills gave a short speech at Lincoln's Inn on how the constitutional reform programme is shaping up and what the government hopes to achieve.

He sets out in a clear fashion the three main processes entailed by the Green Paper. Some points of interest. It's encouraging that Wills says he will "explore the case for economic, social and cultural rights and so-called third generation rights", although, he stresses, these would not be enforceable by judges since this would "put them in the uncomfortable position of having to make decisions about the allocation of scarce public resources" disempowering "elected politicians". The Green Paper seemed to all but rule out the prospect of a BBOR containing anything over and above the standard civil-political rights, despite the fact 88% of Britons, when asked, list free access to healthcare as one of the most important rights. (To my knowledge, South Africa is the only country to have a constitution giving judges powers to order government to redistribute resources when an individual's basic welfare is not being met.)