14. Memorandum from Carol Harlow,
Emeritus Professor of Law, London School of Economics
1. Is A British Bill of Rights Needed?
Britain already has a Bill of Rights: the European
Convention. To add something further would in all probability
merely be confusing, especially as the European Union has approved
a further text, which although not binding is likely to prove
influential: the ill conceived and badly drafted Charter of Fundamental
Rights and Freedoms (ECFR).
The main purpose of a specifically British Bill
of Rights would be to provide "ownership" of the document,
which would add something positive to the current debate about
the nature of British citizenship. Since the content would be
controversial (see below) the effects might, however, be less
positive than anticipated.
A further important function for a British Bill
of Rights would be to act as a defence against incursions by transnational
jurisdictions. A previous Lord Chancellor once argued that the
Strasbourg Court misunderstood and was unsympathetic towards the
unwritten common law. The absence in the United Kingdom of a Bill
of Rights at a time when the Convention was not incorporated created
a suspicion that the United Kingdom did not recognise human rights.
Steps were taken (of which arguably the Human Rights Act was one)
to remedy this problem. This was a strong underlying argument
for the Human Rights Act. A similar argument is mounted in respect
of Luxembourg, to the effect that the German Constitutional Court,
with firm footing in the widely respected Basic Law has been able
to argue with the European Court of Justice and has advanced the
cause of human rights (and German law) much more effectively than
the British House of Lords, with only a tenuous foothold in an
unwritten constitution and common law. A British Bill of Rights
would in this way strengthen the position of the United Kingdom
before international courts.
On the other hand, there is a very real danger
in a proliferation of texts on human rights (and more especially
of jurisdictions concerned to enhance their competence) that protection
will be watered down because signatories and the judiciary will
be able to "cherry pick" between the texts: see notably
Dame Rosalyn Higgins "The United Nations: Some Questions
of Integrity" (1989) 52 Modern Law Review 1. A similar argument
in respect of the ECFR was advanced prior to acceptance by Professor
Giorgio Gaja, an international lawyer of repute: G GAJA, "New
Instruments and Institutions for Enhancing the Protection of Human
Rights in Europe?" in P ALSTON (ed), The European Union and
Human Rights, Oxford University Press, 1999.
If we were to add a further text to what we
already have, the United Kingdom would be subject to the ICCR
and specific UN conventions; the European Convention as implemented
by the Human Rights Act and interpreted by the ECtHR and domestic
courts; the ECFR as interpreted in binding judgements of the ECJ;
and a British Bill of Rights as interpreted by our Supreme Court.
There is considerable variance between the texts.
2. What Should be the Content of a British
Bill of Rights?
This is very much a matter of opinion and is
likely to provoke considerable controversy. There are two main
bodies of opinion and two main fields of controversy:
(a) Economic and social rights:
Those who want to see greater protection of
economic and social rights argue that these are the rights with
which the public, when consulted by opinion polling, actually
engages. A right to healthcare, for example, would be very widely
supported, though arguably the constraints that such a right might
impose would not be widely understood.
Opponents argue that such a move would, on the
one hand, greatly curtail scope for political action by government
and, on the other, bring judges more directly into policymaking.
Several recent cases lend support to their argument, notably the
Herceptin case (R(Rogers) v Swindon NHA  EWCA Civ 392) and
the Watts case in the Court of Justice (Case C-372/04 R(Yvonne
Watts) v Bedford Primary Care Trust and Secretary of State for
Health  ECR I-4325), which is one of a line of cases imposing
an obligation on Member States to pay in certain circumstances
for citizens to travel for purposes of obtaining healthcare in
other European Member States. Whether or not this is desirable
is not the point; the point is whether or not the policy should
be introduced by judges.
(b) Civil liberties, especially those traditional
liberties recognised by the common law:
For many, the main objective of a British Bill
of Rights should be to stop the erosion of "traditional"
civil liberties, which they see as a feature of government in
the era of supranational terrorism. It is widely felt that freedom
from arrest, stop-and-search and detention without trial, freedom
of association and expression of political opinion are not strongly
enough protected by the unwritten common law and cannot be protected
by Parliament in face of a determined executive. While the European
Convention does cover much of this subject area, it is felt to
give insufficient protection to non-citizens and where it does
give protection, as in the widely publicised A cases: (A(FC) and
others v Home Secretary  UKHL 56; A(FC) and others v Home
Secretary  UKHL 75), Chahal v United Kingdom (1997) 23 EHRR
27 and the recent House of Lords decision on extra-territorial
application of the Convention (Al-Skeini v Ministry of Defence
 UKHL 26), it is too easy for politicians to present the
law as "foreign" interference with British policies
and institutions. The very strong argument presented by Lord Hoffmann
in the first two cases that the rights involved spring not only
from the Convention but primarily from the common law is at the
same time a strong argument for a British Bill of Rights as a
more visible codification of common law rights. But what these
rights actually amount to is less than clear. Many see the main
objective of a British Bill of Rights as being both to "domesticate"
this body of due process law and formulate it.
My personal opinion is that protection of the
rights of suspects and the rights of the defence has been eroded
rather than merely updated (as successive Home Secretaries suggest)
and that further protection is necessary. I am less clear as to
how this could best be done. As matters stand, it is easy to present
the case for procedural due process rights first as a self-interested
preoccupation of lawyers and secondly as something alien to British
law imposed on us by Strasbourg. Protection would undoubtedly
be enhanced if such rights could find their way into a British
Bill of Rights. This step would, for example, have precluded ongoing
arguments over the retention/abolition of jury trial and possibly
have prevented statutory dilution of the common law "right
to silence'. As argued later, however, I cannot see much scope
for consensus on these issues.
On the other hand, there is much evidence that
this area of civil liberties law is not particularly cherished
by the public or the main political parties. Indeed, the present
debate over a British Bill of Rights began with statements from
both party leaders (Blair and Cameron) to the effect that a British
Bill of Rights was necessary precisely to curtail these rights
and more particularly to overturn the decision of the Strasbourg
Court in Chahal. As was pointed out at the time, to cut down on
the protections of the Convention would mean either wide derogations
(not necessarily easily achieved) or withdrawal from the Convention,
with obvious negative repercussions on the reputation of the UK.
This suggests that, on the one hand, it would be difficult to
insert new and enhanced guarantees into a British Bill of Rights
but, on the other, that the Convention rights are a useful "floor"
with which it would be difficult to dispense. It might indeed
be easier to upgrade due process rights via Strasbourg than through
a British Bill of Rights.
Rights and freedoms contained in legislation,
notably those to which the Committee makes reference such as freedom
of information; data protection; and discrimination, should certainly
find a place in a Bill of Rights. It has to be borne in mind,
however, that we are not entirely free to regulate in these areas.
Much anti-discrimination law, for example, comes from the European
Union and has to be negotiated at that level.
We are also bound by the Data Protection Directive
(Regulation No 45/2001/EC of the European Parliament and Council
of 18 December 2000 on the protection of individuals with regard
to the processing of personal data by the Community institutions
and bodies and on the free movement of such data  OJ L/8,
p.1) and about to be bound by the Prum Convention, which contains
inadequate protections for data held on EU police and judicial
databases, and the EU freedom of information legislation (Regulation
EC 1049/2001 of the European Parliament and the Council of 30
May 2001 regarding public access to European Parliament, Council
and Commission Documents, 2001 OJ L 145/43). We are only free
to regulate these areas to the limited extent that we are permitted
to take action by the Commission and Court of Justice (see, eg,
Case C-105/03 Criminal Proceedings against Pupino  ECR I-5285.)
there is a very strong case for topping up protection and access
to information rights through a British Bill of Rights. Competence
in the areas is shared; accountability for policy-making is limited;
and the Court of Justice has limited jurisdiction. A British Bill
of Rights would certainly help to underwrite the rights of British
citizens in the sensitive matters of data protection and due process
in criminal trials.
We should, however, realise that much of our
most progressive legislation, such as the Abortion Act, Race Relations
Acts or Equal Opportunities legislation, might not have been possible
in the context of a Bill of Rights: compare for example, the protracted
battles fought over abortion and the complexity of the case law
in the United States Supreme Court; or the negative attitude to
abortion law reform shown by the German Constitutional Court.
These examples do not suggest that "rights" are "better"
protected under a Bill of Rights though they do raise the perennial
question "whose rights?" They merely demonstrate a transfer
of power in each case from a representative and reforming legislature
to "unelected judges'.
I would like to make specific reference to international
treaties. To many it seems intolerable that the state should set
its name to treaties that it is prepared not properly to implement
or even to violate (arguments set out cogently by Philippe Sands
in Lawless World). There is, however, an equally strong argument
that international treaties have an important normative function.
They set standards to which peoples aspire even when they cannot
yet be reached. It is not always appropriate therefore to crystallise
them as, or grant them the status of, rights. There is too a danger
of trivialisation through over-inclusiveness: "when everyone
is somebody, then no one's anybody'. There is also some evidence
to suggest that, where treaties contain provisions making them
legally enforceable, states tend to opt out of these procedural
provisions or fail altogether to ratify. Domesticating treaty
obligations by giving them the status of "rights" might
in the end prove counter-productive, especially for classes of
person seeking entry to protected status (eg, in the area of discrimination,
In sum, I should regret a change from a "dualist"
legal system or any provision such as Article 55 of the French
Constitution, which incorporates international law directly into
the national legal order. Thought needs to be given as to when
the provisions of international treaties are incorporated into
the domestic legal system. It follows that a domestic Bill of
Rights would, like other UK legislation, take precedence in domestic
courts over international treaties other than the Convention,
for which the Human Rights Act makes special arrangements.
3. Constitutional Relationships
Although in theory a Bill of Rights strengthens
the hand of the judiciary against the executive, in practice much
depends on culture and the relative power of the two institutions.
Whether the judges possess a "strike down" power is
also a significant factor (see, eg, per Lord Steyn in Jackson
v Attorney General  UKHL 56). This is certainly the Canadian
In the British constitution, the primacy of
parliamentary legislation necessarily raises the question of entrenchment,
the legal niceties of which are too complex to deal with in this
short response. Assuming, however, that a Bill of Rights could
be entrenched, would this really be desirable? Serious problems
arise with updating entrenched Bills of Rightssuch as the
argument in the United States over "gun law". (See T
Macklem, "Entrenching Bills of Rights" (2006) 26 Oxford
Journal of Legal Studies 107).
I have already referred to the argument that
the European Convention is "outdated"; it is certainly
very weak in Article 14, which deals with anti-discrimination.
Changing the Convention would not be easy; topping it up through
the medium of domestic law is much easier as we can see from the
experience of anti-discrimination legislation, easily amended
to take inside (eg) religious discrimination or with abortion
law to take on board medical progress. To put this differently,
the common law method combines with parliamentary sovereignty
to make law much easier to update. The argument of those who favour
an entrenched or semi-entrenched Bill of Rights is, of course,
precisely that rights may be swept away too easily, as they have
been recently in a series of criminal justice and public order
measures; to put this differently, updating is not always what
it seems. Which risk can more safely be taken is largely a matter
of opinion. (Consider the debate between Lord Lester of Herne
Hill and Professor Keith Ewing: K Ewing, "The Futility of
the Human Rights Act"  Public Law 829; A. Lester, "The
Utility of the Human Rights Act: A Reply to Keith Ewing"
 PL 249).
What appears to be emerging in the common law
countries of Australia, New Zealand and the United Kingdom is
a more nuanced position in which legislature, courts and administration
all feel obligations and join in the attempt to strike appropriate
balances between individual human rights protection and interests
of the collectivity. A useful academic literature on the subject
is beginning to emerge, discussing the respective roles of the
institutions and, in particular, the strengthened role of parliamentary
committees, particularly the Joint Committee and the House of
Commons and Lords Constitutional Committees. (See: D Nicol, "Law
and Politics after the Human Rights Act"  Public Law
722; D. Feldman, "The Impact of Human Rights on the UK Legislative
Process', (2004) 25 Statute Law Review 91; J Hiebert, "Parliamentary
Bills of Rights: An Alternative Model?" (2006) 69 Modern
Law Review 7 and "Interpreting a Bill of Rights: The Importance
of Legislative Rights Review" (2005) 35 British Journal of
Political Studies 235 and "A Hybrid-Approach to Protect Rights?
An Argument in Favour of Supplementing Canadian Judicial Review
with Australia's Model of Parliamentary Scrutiny" (1998)
26 Federal Law Review 115; C. Evans and S. Evans, "Legislative
Scrutiny Committees and Parliamentary Conceptions of Human Rights"
 Public Law 785. Danny Nicol has argued that Parliament,
arguably the most representative forum for the discussion of human
rights, deserves its own "voice" independent from government.
Arguably, recent institutional changes, including the emergence
of new Select Committees is bringing about this effect. The number
of committees that now scrutinise draft legislation with human
rights in mind is increasing.
This "dialogue model" of human rights
is the one which I am firmly convinced best fits common law countries.
We have a powerful media and civil society organisations are already
able to join in the media debate and by giving evidence to select
committees. It is very desirable that new machinery should be
set in place to encourage ordinary people to join in, if only
electronically, through "blogs" and so on (see Report
of PASC Public Participation: Issues and Innovations 6th Report
of 2000/2001, HC 373). The taking of evidence from the public
by parliamentary general committees is another step forward.
4. The Human Rights Act and other rights
texts, including a British Bill of Rights
As indicated earlier, the primary purpose of
a Bill of Rights would be to make the rights more visible and
allow them to be "owned.".
An alternative worth considering is to bring
the substantive rights protected into the text of the Human Rights
Act. This simple change would make them more visible and allow
a greater sense of "ownership" to be developed. However,
since any attempt to make such a change would almost certainly
bring into issue the text of the Convention, often argued to be
old-fashioned, outdated and overly weighted towards civil liberties,
it may be wiser to let sleeping dogs lie. Change might just as
easily provide an opportunity to weaken the protection of civil
liberties as strengthen it. Arguments formulated in terms of human
rights protection are already being advanced for weakening the
protection of unpopular minorities, notably prisoners, suspects,
Roma gypsies. To open the question of substantive rights would
give these arguments a new forum in which they might easily prevail.
This could, of course, be seen as an advantage, as a full debate
could occur of issues that at present crop up on an ad hoc basis,
and may even pass entirely un-debated or even unnoticed. The outcome
might then be seen as representing a negotiated consensus to which
for the time being governments might feel obliged to adhere.
More fundamentally, what should that forum be?
The present legislation originated in the manifesto of a political
party and followed the normal pattern of parliamentary debate
and legislation. Whether this would have been thought sufficient
had substantive rights been in issue is very questionable: the
current dispute, short-circuited by Downing Street, over a referendum
for an EU Constitution or Constitutional Treaty suggests otherwise.
Would a document drafted by a parliamentary committee, such as
the Human rights committee, or a group of committees, possess
sufficient legitimacy, even if it/they could agree? A Royal Commission
is another and more magisterial traditional answer, giving an
impression of greater objectivity. Royal Commissions have been
used to handle similar issues, as for example, the closely related
issue of police powers. We should, however, bear in mind that
the Philips Commission on Criminal Procedure, Cmnd. 8092, 1981,
did not manage to achieve consensus.
The matter is now complicated by devolution.
Human rights are not, of course, a devolved issue, a division
of functions that perhaps remains largely uncontroversial so long
as the matter is governed by the Convention and our shared heritage
in that respect. Were this to change and more particularly if
a proposed new text were to penetrate deeply into economic and
social rights, devolved areas would be involved. A British Bill
of Rights might then become Bills of Rights for Scotland, Wales
and England and Northern Ireland; there is of course already a
move for devolution coming from the Northern Ireland Human Rights
Commission, interested in promoting a regional Bill of Rights.
Whether further regionalisation is desirable and what the relationship
of regional texts could be with the ECHR and Strasbourg courts
are very difficult and delicate questions.
In conclusion, I believe that the Human Rights
Act is working relatively well and should be left to "bed
in". It is by and large an adequate basis for the protection
of human rights in what is inherently a "political constitution'.
There are of course grave weaknesses but where the weaknesses
lie is a contentious issue. In recent years, it has been the areas
of pre-trial and trial procedure, sentencing and treatment of
prisoners and asylum-seekers that have stimulated the loudest
calls for reform: but whether the liberties in issue are to be
maintained, extended, shored up or curtailed are hotly contested
and very political questions. Human rights are not written in
stone. They are as controversial as any other area of politics
and have, if they are to be truly effective, to be fought for
in the same way as all political and social rights. In our political
system, discussion tends to crystallise around projected laws
or focus on high visibility court cases. Whether a Bill of Rights
would change this situation is, I feel, unlikely.
20 June 2007