There was a mini conference on a new bill of rights at Westminster on Wednesday hosted by the Joint Committee on Human Rights. It was pretty uninspiring, so I’ve been putting off writing about it. Henry Porter’s description is about right: “a room full of about 40 decent, experienced, intelligent people – academics, lawyers, campaigners and politicians – treating each other with the utmost courtesy while they traded points about a new bill of rights and responsibilities. It could not have been more removed from the reality of Britain today or the attack on rights and liberties that our society has suffered under this morally and financially bankrupt regime.”
The government have said they’re not going to be introducing any legislation on the bill of rights this Parliament so the consultation they launched with the green paper last month will no doubt be a huge waste of time given the near certainty of a Tory victory at the next election.
[whoops - see below!*]
It’s an unfortunate situation because however you dress it up there’s something deeply sinister about the state disciplining the population by means of a constitutional list of responsibilities. Nearly everyone who spoke on responsibilities at the conference explained why they are undesirable, superfluous and legally confused. The best intervention on the issue of responsibilities, however, was by Keith Ewing who drew our attention to the Soviet Union Constitution of 1977 and the responsibilities it contains, including the responsibility to combat “anti-social behaviour” at all times. I hope Grieve was listening. It’s a point I’d heard Ewing make before at a lecture in March last year. We’ve since had the government’s green paper but a lot of the questions Ewing posed then still haven’t been answered. In particular, how are we supposed to believe the government that the responsibilities will simply act as a “reminder” and that the courts will pay no regard to them even though they are written into an act of Parliament? The reason I keep banging on about these resonsibilities is that I'm concerned that with both the Labour and Tory proposals we're about to enter the historically unheard of territory of a bill of rights being enacted in a democracy with the aim of giving more and not less power to the state. Anyway, here is the relevant passage from Ewing’s lecture which is well worth reading.
What is clear, however, is that when the government is talking about responsibilities it is proposing to make a qualitative leap in terms of the protection of rights and duties. For what seems to be contemplated is that the citizen will have duties to the State - or Society or the community as a whole - in the words of ministers, terms which in this context are synonymous with the State - and perhaps to each other. What these duties will be is not yet clear. Will they include: a duty to work (if you are on invalidity benefit or if you are a young single parent); a duty not to behave in an anti-social way (particularly if you live on an estate); and a duty to be a responsible parent and to ensure that your children go to school? What about the duty of drug companies to behave ethically; the duty of utility companies not to rip off the poor; and the duty of all companies not to exploit agency workers? How these duties will be enforced is also unclear. Are they duties that will be directly enforceable against those who owe the duty, and if so by whom? Will they be only indirectly enforceable in the sense that they are to be taken into account by the courts in adjudication under the Human Rights Act, in which case will they be seen to dilute existing rights? Or will they have no legal status whatsoever, beyond being a showcase of existing rights and duties, as the British government tried to negotiate at Nice in 2000 in relation to the EU Charter of Fundamental Rights (which was to have the same legal status as the Beano, according to the then Minister for Europe)?
But just as it has been impossible to deny the EU Charter of 2000 any legal status (even before Lisbon), so it seems implausible that an Act of Parliament will contain measures to which the courts will be prohibited from having regard. Responsibilities of this kind are not something we normally associate with liberal democracies, one possible explanation being that it may involve a measure of re-ification of the State. If we scratch around for long enough, however, it is possible to find a few examples of duties owed by citizens to the State, though they are typically limited in scope, to matters such as the duty to provide military service. Thus, the Charter of Rights and Responsibilities introduced in Victoria in 2006 states in the preamble that ‘human rights come with responsibilities and must be exercised in a way that respects the human rights of others’, but does not appear otherwise to include anything of substance. In Spain – however – there are constitutional duties on citizens to pay their taxes, to provide military service, and to work. Similarly, in Italy there is a duty to pay taxes, a duty to provide military service, and a duty of loyalty to the State. In France there is a duty to work in the preamble to the Constitution of the Fourth Republic. But the most famous example of a Constitution dealing with the ‘Basic Rights, Freedoms, and Duties of Citizens’ is the 1977 Constitution of the USSR. Articles 39 – 69 dealt with matters such as the duty to work conscientiously, the duty to preserve and protect public property, the duty to respect the rights and lawful interests of other persons, and to be uncompromising towards anti-social behaviour, the duty to be concerned with the upbringing of children and to train them for socially useful work, and a duty of children to provide for the welfare of their parents. The Constitution also famously dealt with social and economic rights, as well as less famously with freedom of conscience and religion, freedom of association (albeit in accordance with the aims of building communism), and freedom of assembly and expression (albeit in accordance with the interests of the people and in order to strengthen and develop the socialist system).
*It has been brought to my attention that the meeting was under Chatham House rules, which I wasn't aware of having arrived late. I shouldn't have tried to quote the minister Michael Wills and so I've removed the paragraphs in which I did.
