The debate over new Bill of Rights must include constitutional issues which need to be considered carefully, argues Roger Smith


All three major political parties want a Bill of Rights. The Tories want a ‘modern’ one, the Liberal Democrats want one to entrench the European Convention on Human Rights, and the government wants one with duties as well. If you came from Mars, you might think that this indicated a widespread political passion for extending human rights. Since this is manifestly not the case, the motivation seems somewhat mysterious.



Both major parties have high-level opponents of the Human Rights Act 1998. Two previous Labour home secretaries, David Blunkett and John Reid, expressed their frustration with it in no uncertain terms. A third, Charles Clarke, wanted to have a word with the judiciary about it and was only thwarted by the assertion of constitutional principle.



David Cameron is also not a fan, telling the Police Federation: ‘Over the last few years, we’ve seen a series of disgraceful incidents. Prisoners given access to pornography. Burglars given Kentucky Fried Chicken. One chief constable prevented from publishing “wanted” posters for murderers on the run, on the grounds that to do so would infringe their human rights… So a key part of our reforms to the criminal justice system will be to replace the Human Rights Act.’



Mr Cameron’s speech indicates the need for care. His three examples illustrate modern myths. The chicken-eating burglar was offered a meal by the police as a confidence-building measure to get him down from a roof. Dennis Nilsen twice applied for judicial review of the decision to get access to pornography and failed both times. The Metropolitan Police cheerfully publishes colour pictures of its 12 most wanted suspects on its website: no one prevents them from doing so.



There is considerable danger in proposing a new Bill of Rights in the current politically febrile atmosphere. The original Bill of Rights 1689 drew its force from consensus. The British ruling class, after a century of civil war and uncertainty, agreed on some fundamental issues: the established religion was to be Protestant; the monarchy constitutional, Parliament sovereign in financial matters, and civil liberties protected. Modern spin can degrade both the meaning of words and the resonance of history but anyone using the language of a Bill of Rights should intend constitutional reform of a major level.



Justice’s latest paper, A British Bill of Rights: Informing the debate, sets out the issues that are to be decided in any serious Bill of Rights. It is a deliberate attempt to lower the temperature and consider four major elements.



The first of these is content. Not the least surprising element of all this new interest is that no one seems to be driven by a burning desire to entrench a new set of rights. This is the usual motivation for this kind of constitutional exercise. It is what South Africa wanted in its 1994 constitution. It is even what the EU wanted in its Charter of Fundamental Rights and Freedoms – with which, again rather bizarrely, neither the Labour government nor Tory opposition want any part.



The three most popular candidates for inclusion as distinctively British rights are jury trial, legal aid and medical care. No problem with the Law Society or the British Medical Association then. But, actually, none of these three rights have been very secure under recent governments of either persuasion.



Further issues are the extent to which the rights in any Bill are protected – either by parliamentary procedure or the judiciary. The original Bill of Rights derived its power from the consensus behind it: any subsequent Parliament could have torn it up and, of course, it was developed. There is no way under our current constitution in which a Bill could easily be legally protected from amendment – save perhaps that the Parliament Acts could be disapplied and any reform, thereby, requires majorities in both Houses.



In relation to judges, the Human Rights Act actually sets up a balanced enforcement machinery. Judges can declare legislation incompatible with the European convention but they cannot actually do anything about it. It is difficult to see the attraction of any lesser powers. And the power to give a declaration derives from the common law anyway.



Finally, there is the issue of how a Bill might be agreed. Northern Ireland has been arguing about the content of the Bill of Rights promised in the Good Friday agreement for near on a decade. Once discussion gets going, any number of interest groups emerge to champion their cause. The process clearly runs the danger of getting stuck.



However, at least discussion is raging and there is a real attempt to get general agreement. A Bill that is rushed through by one political party in the face of opposition, particularly if it prompted the Welsh and the Scots to argue that they gave no consent to its alleged Britishness, would be a disaster. This is a constitutional issue which we should take slowly. That allows time to read Justice’s paper.

l A British Bill of Rights: Informing the debate is available from Justice, 59 Carter Lane, London EC4V 5AQ price £9.99 (£8.99 to Justice members), or is free to download from www.justice.org.uk.



Roger Smith is director of the law reform and human rights organisation Justice