British Bill of Rights
British Bill of Rights – A rare opportunity for constitutional reform at risk of being wasted.
Rights are an indispensable virtue, rightly revered in our legal system and deserving of protection. Therefore, it is understandable proposals to replace the 1998 Human Rights Act have been consistently criticised, especially given many fear a Bill of Rights would undermine legal protection. Yet, whilst these concerns should not be dismissed, they rarely acknowledge the robustness of our common-law regime and risk creating a one-dimensional debate.
Ignoring the previous Lord Chancellor’s assurances that reform would not “derogate” from any substantive freedoms, even if the 1998 Act were repealed, without replacement, the UK would not be bereft of rights. Many substantive rights currently provided by statute, such as Articles 6 & 10 of the 1998 Act, are already protected under the common-law. Indeed, following 17 years of human rights jurisprudence, these principles will have inevitably been bolstered. Therefore, even without statutory recognition, the judiciary, who would hardly be ambivalent about weaker legal protections, could still utilise the common-law and ensure key principles such as proportionality remained valid.
The sanctity some seem to ascribe to the Human Rights Act is misplaced. Far from an exhaustive text, any opportunity to revisit its substantive rights should be seized upon, as rights are not static but rather responsive to new challenges. A Bill of Rights is a constitutional watershed because it would uniquely allow citizens the space to reflect, debate and lobby for additional rights currently lacking: enhanced data privacy, children’s rights, social/economic rights and the right to die, to name but a few. Although the merits of these rights are debatable, it is undeniable that the growing desire for their recognition requires some response and that judges creatively interpreting one would be inappropriate. A Bill of Rights would offer such an opportunity.
Alternatively, public engagement could not only extend rights but also create a sense of public ownership, enabling the judiciary greater legitimacy to protect them. Indeed, the significance of this popular sovereignty could be recognised by making a Bill of Rights the first article of the UK’s uncodified constitution. Mirroring jurisdictions such as Canada, our system of checks and balances could be vastly improved by conferring upon the judiciary additional powers to overrule any violations of absolute/limited rights, instead of merely declaring them incompatible as currently permitted. Indeed, given the UK disturbing concentration of executive power, the significance for constitutional rebalancing which a Bill of Right could represent, cannot be overstated.
Obviously, this case for a Bill of Rights is highly dependent upon its substance and the elephant in the room might be the UK’s current political climate. However, this politics of identity crisis, which overshadows the UK, must at least be partly informed by an uncertainty over the rights our nation values. Hence just as other nations have successfully used moments of great constitutional significance to engage with citizens and reflect upon the principles underpinning their community, a discussion of the values intrinsically British and within a Bill of Rights, might overcome our own crisis and enable our increasingly fragmented country to rediscover some unity.
Far from the fears that reform would mark the end of rights protection, a British Bill of Rights could provide some much-needed teeth. The risk is that this opportunity will be wasted.
This article was written by Keiron McCabe (2nd year, LLB Law), in conjunction with Dicta 2017.