Does Britain need a bill of rights? Of the constitutional dilemmas facing Britain today, this is a tricky one for Labour. Its Human Rights Act 1998 incorporated the European Convention on Human Rights and heralded a new era for fundamental rights in Britain. The HRA has enabled groundbreaking decisions in favour of disadvantaged groups (the disabled, the elderly, gay couples, foreigners illegally detained without trial) but its success in the courts has not been reflected in popular support.
Gordon Brown has talked of a new constitutional settlement, emphasising the notion of Britishness. Could his leadership be the opportunity to codify the values most important to this country in a new constitutional document? Before its enactment, many in the Labour party saw the HRA as ‘stage one’, paving the way for a home-grown bill of rights. The lord chancellor recently mounted a campaign to insist that human rights are ‘common sense’ and that the HRA has not, in fact, inhibited the fight against crime and terrorism. ‘Stage two’ now seems optimistic at best.
Yet there is competition. Last June, David Cameron proposed a British bill of rights to replace the HRA. Ironically, some human rights campaigners who also favour a domestic bill of rights supported him, though not through contempt for the HRA. Nine months later, Cameron has announced his long-awaited bill of rights commission – when their findings materialise, they will find it hard to gain consensus on such a complex issue.
Content is the first obstacle. The bottom line is that a British bill of rights cannot afford less protection than the ECHR. Nor can it help us evade decisions of the European Court of Human Rights. Arguments that a home-grown bill will allow us more flexibility from Strasbourg under the ‘margin of appreciation’ are misinformed. Many are uncomfortable with Strasbourg’s decision that individuals posing a risk to national security cannot be sent back to countries where they risk being tortured. Yet this is the compromise we live with in a civilised society where even (especially) unpopular minorities share equal human rights.
As for additional rights, there is scope for updating the ECHR and tailoring it to British culture. Opinion polls suggest that a British bill of rights might include trial by jury, as well as certain social and economic rights, such as free healthcare on the NHS. The right of access to justice is also a contender – currently only the very wealthy or very poor qualifying for legal aid can afford to go to court, and rights are meaningless unless they can be enforced.
The legal status of a bill of rights must be addressed. According it special status (necessary to prevent repeal after another ‘seven-year itch’) will require some form of entrenchment. Some constitutional inventiveness is needed to modify the doctrine of parliamentary sovereignty and bind successive parliaments so that special procedures are required for amendment.
A further point of tension will be whether to give judges new powers. While some supreme courts, most famously in the US, can strike down legislation, many see the advantage of the HRA model as being that our elected representatives have the final say. Parliament has so far re-legislated following every judicial declaration of incompatibility, but one day it might choose not to.
The final piece in the jigsaw is process. Cross-party and popular consensus will be crucial for a domestic bill of rights. The difficulties are real, especially if some wish to sabotage the process. But the experience of the Australian state of Victoria last year and its charter of rights and responsibilities shows how an extensive public consultation can inform and influence a bill of rights and secure much needed public support.
If consensus can be achieved on a modern set of fundamental rights, we will be on our way to achieving a new constitutional settlement in Britain. Labour must decide whether to champion its HRA or join the other parties in shaping a bill of rights fit for a 21st century democracy.