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by Martin Howe QC

Why a Bill of Rights?

The experience of the last few years has shown that the British constitution does not have enough checks and balances to prevent a powerful government machine with a Commons majority from trampling over the liberties of individuals.  We are no longer in the gentlemanly days of the past when non-binding constitutional “conventions” were enough in practice to safeguard our liberties from an over-mighty executive.

Nor should we think in terms just of laws passed by Parliament when it comes to threats to our liberties.  The vast majority of laws made nowadays are not actually debated in Parliament.  Instead,  they are made by government departments by ‘statutory instrument’ or by the European Union’s convoluted legislative processes.  There is no direct democratic accountability in these law-making processes,  and one suspects that often the politicians involved do not even read through the complex regulations to which they give their approval.  These processes make it too easy for bureaucratic machines to trample over liberties when it suits them.

So we believe that we need a mechanism which will lay down some clear lines which cannot be crossed by secondary legislation.  Under our constitution,  Parliament itself cannot be stopped from passing any law if it chooses to do so,  but it is possible to require that Parliament should take an explicit and conscious decision if it chooses to depart cross those clear lines.

Why not just keep the Human Rights Act?

The Human Rights Act 1998 gives effect under British law to the European Convention on Human Rights.  There are a number of problems in relying on the Act and Convention as an effective protection for our liberties.

First,  the Convention does not necessarily give sufficiently effective or any protection to some liberties which we regard as particularly important from our own history and legal tradition.  For example,  it does not protect the right to trial by jury either from direct attack or from indirect erosion by putting quasi-criminal powers into the hands of special courts or tribunals.  The Convention was drafted so that it would accommodate the very different historical traditions and legal systems of non-common law countries and it is inevitable that it cannot fully reflect some of the liberties which are important to us.

Secondly,  the Convention is framed in terms of a very broadly defined set of rights, such as the rights to life, liberty, religion,  freedom of expression, private and family life, etc.  However,  these rights are not absolute and so the Convention states that they are subject to exceptions of one kind or another.  Both the rights themselves and the exceptions to them are defined in very general terms and so the text of the Convention itself gives little guidance on how many practical situations are to be resolved.  Frequently,  one Convention right can conflict with another (such as the right to privacy of one person and the right to freedom of expression of another).  Or  a Convention right can conflict with the need to protect society generally,  such as the need to protect society against crime or terrorist violence.

Deciding where the correct balance lies in these situations inevitably involves a large element of political value judgement:  for example,  the question whether or not an interference with private and family life,  or a restriction on freedom of expression,  is justified under the Convention as being “necessary in a democratic society”.  This is a quite different type of decision from the task of interpretation and application of statutes and common law legal principles which our courts have traditionally carried out.

Placing decisions of this kind in the hands of the courts has been shown to have a number of potential and actual drawbacks:

(1) Political decisions taken without democratic accountability:   If decisions of this kind - involving an exercise of political balance - are taken  by judges instead of by politicians,  there is no accountability to the electorate for way they are taken.  However unhappy the electorate are with the way the judges balance these rights and interests against each other,  they cannot vote to change that balance in elections.  This conflicts with the fundamental right of the people to be governed according to laws to which they have consented.

(2)  Politicisation of the courts:  As a consequence of taking these kinds of decisions,  judges become embroiled in political controversy whether they like it or not.  The present government has thrown out of the window the long standing and important constitutional convention that the executive did not attack decisions of the courts.  We now have regular and intemperate attacks by ministers from the Prime Minister downwards on individual decisions by judges.  If present trends continue,  it may be inevitable that we should move towards a system in which the political views of judges are taken into account when they are appointed and the courts will inevitably become ever more politicised.

(3) Erosion of important freedoms under guise of protecting Convention rights:  Because of the utilitarian nature of the balancing act which often needs to be carried out in applying the Convention,  there is a danger that,  under the guise of protecting or extending one Convention right,  the courts will actually damage another and possibly more important right.  For example,  by invoking Article 8 of the Convention which protects private and family life,  the courts have created a new judge-made law of privacy which restricts the freedom of the press.  If such a law had been introduced by Act of Parliament,  it would have been widely debated and it would,  for example,  have contained detailed safeguards specifying what matters can be published in the public interest.  The judge-made law has neither the authority of democratic consent nor the clarity of statute law.

Not only does the Human Rights Act require the courts to interpret and apply Convention rights,  but it also places this duty on every public authority.  Correctly performing the complex exercise of judgement under the Convention - balancing one right against another or against wider public interests - is often beyond the abilities of public bodies when carrying out their day-to-day tasks.  For example the police are wrongly terrified of publishing ‘wanted’ posters because it might interfere with the Article 8 (privacy) rights of the fugitive,  and parole boards have been criticises for bending over backwards for fear of human rights litigation from the criminals they are dealing with.  Even the courts can get it all completely wrong:  the Court of Appeal was castigated by the House of Lords in the Moslem dress case for setting the school concerned “an examination paper” which the Court of Appeal itself would have failed.

A better way of protecting our liberties

Most of these problems arise from the vagueness of the European Convention on Human Rights and the way it requires political rather than legal value judgements to be made when interpreting it and applying it.  There is nothing wrong in principle with the broad set of rights which the Convention enshrines:  the real problem is working out how to apply them.

We think that there can be a better way of protecting our liberties.  First and foremost,  a new British Bill of Rights should strive to be much clearer to interpret than the Convention,  and should avoid as far as possible placing upon the courts the function of performing the kind of political and utilitarian judgements which they are required to perform under the Convention and the Human Rights Act.

Secondly,  the new Bill should strive hardest to protect those rights which our historical experience has shown to be of key importance.  Thus,  an important part of the Bill can be to give special status and protection to existing common law legal principles and statutes.  It can re-entrench and clarify those parts of the Bill of Rights of 1689 which are still relevant today, and give special status to other statutory principles,  such as the right of immediate access to a court to challenge detention created by the Habeus Corpus Act,  and the independence of the judiciary created by the Act of Settlement.

If the Bill is as far as possible built upon an existing body of statute and common law principles,  the existing case law will be available to assist in its interpretation,  so improving the clarity of its interpretation and application.

The new Bill must of course move beyond the issues of the past and should also seek to tackle the new problems of the modern age.  Issues need to be tackled such as the interception of electronic communications,  and the storage and use by the State of vast and ever-increasing quantities of personal information about individuals which it now collects.

But the Bill of Rights should leave Parliament and elected politicians to decide those issues which should be subject to democratic accountability.  It is entirely compatible with our membership of the European Convention on Human Rights that many of the decisions under the Convention which require one right to be balanced against another or a Convention right to be balanced against other interests, be taken by our politicians and legislators rather than by our courts.

As the European Court of Human Rights at Strasbourg has made plain,  states are entitled to a ‘margin of appreciation’ when taking such decisions.   The Convention does not dictate when and in what circumstances it is the courts or the legislators who should be exercising that ‘margin of appreciation’.  The key mistake made in the Human Rights Act was a failure to address this question properly.  With careful and detailed work,  it should be possible to produce a solution which eliminates many of the problems of the Human Rights Act but is actually more effective in protecting our liberties.

Copyright Martin Howe QC, 9th July 2006


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