Do we need a Bill of Rights?


2:26 pm - August 12th 2008

by Sunny Hundal    


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The Joint Committee on Human Rights seems to think so. On Sunday it said:

The government should adopt a Bill of Rights for the UK, a cross-party committee of MPs and peers has urged. The Joint Committee on Human Rights said the bill should go further than current human rights legislation. The bill should give greater protection to groups such as children, the elderly and those with learning difficulties, it said in a report.

The committee said the bill should include rights to housing, education and a healthy environment. Its report referred to a survey conducted in 2006 when more than three-quarters of the people polled agreed that “Britain needs a Bill of Rights to protect the liberty of the individual”. The report said the new Bill should include all the rights spelt out in the Human Rights Act and then enshrine others in law.

What we really need, I feel is a British Constitution, not just a Bill of Rights (and Responsibilities). The problem then is that a BoR will just kill off any hunger for a proper constitution. Either way, I think a better codification of our rights as citizens is good idea.

The full report is here. Thoughts?
(they sent the whole report to me for some unexplicable reason. If anyone wants it off my hands, just let me know)

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About the author
Sunny Hundal is editor of LC. Also: on Twitter, at Pickled Politics and Guardian CIF.
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Story Filed Under: Blog ,Equality ,Our democracy ,Westminster

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Reader comments


There’s a good response to this Bill of Rights over on Samizdata.

Point 96 under Section 3 is the key point in my view:

“A note of caution about this approach was sounded by Democratic Audit:

We believe that it would be detrimental to social cohesion in this country if it becomes a signal of rejection of “European” or minority rights or values, and profoundly wrong if it in any way reduces the universality of human rights for non-citizens resident here.[110]”

Citizenship can already be divisive and to attach more rights to it that resident non-citizens (some of whom might have lived in Britain all or most of their lives) are not entitled to would be even more divisive. Having a British Bill of Rights would make the European Convention on Human Rights seem irrelevant to most British people and might result in a future government withdrawing from it. In which case we could have a situation where the most basic rights like freedom of religion, expression etc were graduated and resident non-citizens partially entitled or even completely excluded.

Parliament may expressly declare in an Act of Parliament that the Act or any provision in it shall operate notwithstanding anything contained in this Bill of Rights and Freedoms.

Compare to “Congress shall make no law…”

We do not need a British constitution, there is no way you can write a constitution that will be completely relevant in 500 years time and legally it would probably still be in action. Very bad idea.

I find this an annoying example of political determinism which would provide relatively little practical help and more damage than good.

Littered throughout the document are pieces of language which undermine any legal arguments that a Bill of Rights is needed, primarily because we already have one – which means any move in this direction is overhyped as an actual legal change or likely to instigate trouble.

The statements of values would make contentious law considering that even I can see at least three major points of contradiction which open the door to an overzealous government undermining the state.

If it is proved that current arrangements are inadequate, then amendments to current arrangements are needed – that is all, nothing quite so irrational or radical as this.

Just a follow up, on your post about Right wing talking points. I was interested to see that Ian at Conservativehome said “nice to know we get under their skin so much.” I hope Labour and Liberal M’ps will remember that when Ian is trying to get them to contribute to his shitty new magazine backed by Ashcroft. Nobody on our side should co-operate with this enterprise, which Ian claims is about showing the positive side of politics. “Getting under their skin” is really positive Ian, and just shows the hypocrisy that drips off all Tory’s.

I’m happy enough with European HR legislation. I don’t know of any particularly “British” rights that would be useful additions. (Giving those detained for 42 days a cup of tea every week, perhaps?)

What we really need, I feel is a British Constitution, not just a Bill of Rights (and Responsibilities). The problem then is that a BoR will just kill off any hunger for a proper constitution.

We already have a British constitution. It isn’t even accurate to describe it as ‘unwritten’; it’s just that it has never been codified into a single document. I don’t think you’ll find much in the way of hunger for that. I’m increasingly of the view that there was a window in the 18th century for this sort of thing that we missed and if we tried to do it now, something horrible would happen. They’d probably enlist the sort of people who write ‘mission statements’ and motivational posters into a committee of other language criminals on the drafting process. The possibilities are truly horrifying.

Samizdata, typically there with its sense of proportion: “it is providing an apparatus perfectly suited to soft fascism.

Heh.

It isn’t even accurate to describe it as ‘unwritten’; it’s just that it has never been codified into a single document.

I’d like a single document. I think it has potential to become a good symbolic vision of British society. I like symbols.

The swastika was a good symbol, but that one has been taken. In fact it was so good it was taken several times.

Look, codified constitutions are just too rigid and continental for us – and when did the French and Germans ever get anything right? And the Americans, they just follow the crowd!

Constitutions are what you have in place of a vibrant and meaningful culture because you’re too scared of the complexity of it all and can’t deal with historical guilt calmly and sensibly. So let’s just forget about it, eh?

They acknowledge the Bill of Rights, but they’d like to ‘update’ it, or, in the words of the Human Rights Minister, “ensure the system works better to protect the individual against the powerful”.

I’m interested by the claim that the bill would add “a clear articulation of the responsibilities we owe to each other, that are intertwined with the rights we enjoy”. This follows the information that the Jack Straw “blamed modern consumerism for encouraging a “selfish” approach to rights”.

I think that there’d be justified, and really rather heated, scepticism regarding who was going to “articulate” the responsibilities of the citizen, and how.

“They’d probably enlist the sort of people who write ‘mission statements’ and motivational posters into a committee of other language criminals on the drafting process. The possibilities are truly horrifying.”

“Britain – Passionate About Fundamental Rights”

Ben

What is up with you guys??

Nina: We do not need a British constitution, there is no way you can write a constitution that will be completely relevant in 500 years time and legally it would probably still be in action. Very bad idea.

Shuggy: I’m increasingly of the view that there was a window in the 18th century for this sort of thing that we missed and if we tried to do it now, something horrible would happen. They’d probably enlist the sort of people who write ‘mission statements’ and motivational posters into a committee of other language criminals on the drafting process. The possibilities are truly horrifying.

Thomas: : Look, codified constitutions are just too rigid and continental for us – and when did the French and Germans ever get anything right? And the Americans, they just follow the crowd! Constitutions are what you have in place of a vibrant and meaningful culture because you’re too scared of the complexity of it all and can’t deal with historical guilt calmly and sensibly. So let’s just forget about it, eh?

You are all falling for the old British ruling class trick of persuading the natives to think that they are too pathetic to rule themselves and must leave it up to the toffs to look after sovereignty. Thomas, do you think India could be vibrant without one of the world’s best constitutions (the first multicultural one)? Shuggy, ‘the 18th century for this sort of thing’? What planet are you on? You say, “They’d probably enlist”, the point is, it is about us enlisting ourselves. Nina, what constitution has lasted 500 years? Apart from Byzantium. The US codified constitution is very early, horrid, quasi monarchical, racially coded and inflexible. OK ours is worse and even older in its origins. If you are fatalistic about this, how can you hope to change anything for the better for any length of time at all? Obviously, a contemporary constitution would build in reassessment conventions, say every 35 years, because we know how fast things change. Constitutions are not straightjackets – they are shared framework of rules that allow sovereignty to be vested in the people.

On Rights:

The point is, a Bill of Rights should be about minimising the power of the state and maximising the freedom of the people. The trick is to have the legislators and their drafters – after all, they will be the people writing it, not us – supporting those interests.

You are kidding yourself if you believe the Labour Government will do that rather than what is politically expedient. What appears to be good will be done. Where there is conflict between our rights and their popularity, what will they choose to support? There is plenty of precedent to suggest the latter. That is, to be fair, a downside of democracy, but they don’t have to go with it – they could instead make an attempt to stand up for our rights and educate people, rather than (for example) moan about silly judges.

Again, there seems little point in having a Bill of Rights that can be overridden when its inconvenient (the point about the US Constitution is that it takes a bit of effort to amend it), or indeed rights / freedoms that aren’t justiciable.

On Responsibilities:

The somewhat amusing thing here is that the Government has us discussing Responsibilities, some of us getting up in arms about it, when it has produced, what, one or two examples of what such Responsibilities are, and handwaving saying, “oh no, we do not suggest the rights are not contingent on discharge of responsibilities” but on the other hand “an individual’s failure to carry out his or her responsibilities does have consequences for that individual’s rights.” It’s all very vague, and again seems more for the sake of appearance than for what is going to maximise our freedoms.

In addition, I suggest distrusting those who misinterpret Thomas Paine to the extent that Jack Straw has.

I think thomas is right, and I think there are wider issues here of education and the power of the Government within Parliament that need to be resolved.

Sunny, I see nothing wrong with Guy Herbert’s comment about “soft fascism”. Perhaps you and he have a different understanding of the term.

You say, “They’d probably enlist”, the point is, it is about us enlisting ourselves.

It’s only about ‘enlisting ourselves’ in your fevered imagination. The ‘peepul’ would have slightly less than FA influence in any drafted constitution. You won’t be enlisted – unless you’re the sort of person that writes mission statements or motivational posters, in which case you probably will be.

I don’t understand why you’re going on about us falling for some ‘ruling class trick’ when any codification of the British constitution is bound to be an elite project written by lawyers and bureaucrats. I don’t see how it could be anything other. It certainly wouldn’t be like those born out of the American or French revolutions – that was the point about the 18th century.

Anthony,

are you suggesting that India is a model of anything but bureaucratic heirarchy?

Doesn’t the continuing existence of the caste system and particularly those at the bottom of it expose the inconsistency of the idea of an open, multicultural society defended in its constitution.

Constitutions may be fine for the middle-classes, while wealth will always find a way round the law, but the poor, the downtrodden and the untouchable underclass still suffer and will continue to be constrained, stifled and oppressed by rigidity in social and societal structures.

So who is it designed to help?

Constitutions may be fine for the middle-classes, while wealth will always find a way round the law, but the poor, the downtrodden and the untouchable underclass still suffer and will continue to be constrained, stifled and oppressed by rigidity in social and societal structures.

Well, it depends on what it contains. People like Samizdata are calling it ‘soft fascism’ because it contains the sort of economic and social rights that the libertarians would hate to incorporate into any constitution.

On the other hand if it does strongly feature human rights, and its something people come more to grips with, then it will most help the downtrodden that thomas is waxing lyrically about – because they are the ones the legal system craps on.

PLus, as UK Liberty points out above on his blog, the report is already suspicious of the govt’s motives – which shows the system isn’t exactly wholly run by those out merely for themselves.

I don’t understand why you’re going on about us falling for some ‘ruling class trick’ when any codification of the British constitution is bound to be an elite project written by lawyers and bureaucrats.

Well, it depends how they go about it. The Canadians and the South Africans did it well.

Sunny, I think the point is that any constitution would be written by an elite – it’s not necessarily a bad thing, but it is the case that it won’t be written by the downtrodden.

Nor do the downtrodden seem likely to be helped by the JHCR’s proposals – there is no mechanism by which an individual can enforce his right to an adequate standard of living, for example, even if he could afford to go to court. This is a job left to Parliament, to enforce it for a group. But why aren’t they already doing it?

It seems a dreadful muddle. I think there are wider issues here.

OK, forget Guy Herbert’s characterisation of the proposals as “soft facism”. But I think Wikipedia has a fair criticism of social and economic rights:

Libertarians and others to the economic right see second and third generation human rights as an attempt to cloak political goals in the language of rights, thus (a) granting certain political goals inappropriately positive connotations; (b) advancing the power of governments and NGOs while (c) diminishing the legitimate negative rights of individuals who are coerced by state power into funding or otherwise providing certain services (for example, a “right to employment” necessarily means that individuals may be forced to provide employment to others, and/or may be forced to pay additional taxes to governments to monitor and administer programs.)

What is the point of all this? At the centre, it’s about management of perceptions and satisfaction of ego.

Some different points here:
Constitutions provide a floor, framework or platform for politics, not the outcome. Written or uncodified, how they are lived is always more important. This is not an argument against having them written down.
All countries (good, bad and terrible) have a codified constitutions except, as far as I can make out, for Britain, Israel and Saudi Arabia. All three are partial theocracies with an established religion which may have something to do with it. Perhaps we should ask, is Britain’s exceptionalism in this respect something that makes us especially happy, comfortable and self-confident (as it once did)?

On Shuggy about the people being without influence – it is the process that counts. How we get a written constitution is more important than what is in it. Unlock Democracy has, rightly, moved on from Charter 88 in this respect. It does not demand a written constitution it demands a citizens constitutional convention.

It is useful to look at Scotland. It is moving towards a constitution and its new parliament’s origins lies in the Scottish Constitutional Convention and its Claim of Right (pre-web, I’m afraid). It got buy in from major representative forces like the trade unions and the church as well as the political parties (except the SNP, oddly enough). It has not abolished poverty or created a revolution – it has moved Scotland towards a healthy, slightly less cynical normalisation, within which better policies can be delivered.

As for India, see Rajeev Bhargava
http://www.opendemocracy.net/arts-multiculturalism/article_2204.jsp
It could be so much worse!

“I like symbols.”

Explains a lot.

Remember, Guy Herbert is in the vanguard of the No2ID campaign, something that even the “liberal” left support. So I think he is worth more than dismissal when he speaks of “soft fascism” which this proposed bill reeks of.

OK, I’ll make a case for British exceptionaism.

We won the war.

OK, not enough?

We won every major war and have emerged victorious to set the template of design for the world according to our [liberal] pattern – even when it has been against the will of our [illiberal] representatives.

Why? Because the methods by which we won were based on necessity – we forged alliances of greater coherence and unity which overpowered the tyrranical inequality of the domineering absolutists and totalitarians: our constitutional format has evolved, has continued to evolve and will continue to evolve.

Any attempt to fix our pattern in stone is therefore to destroy the strengths of it and destroy the prime model on which the relatively peaceful and prosperous world order is based.

Full partnership and participation is the essence of teamwork, but that is a lesson which must be continually relearnt, it’s not something that can be taught or imposed. There will always be those who selfishly oppose pooling stengths to overcome common weaknesses in an attempt to gain a temporary advantage, but it’s hard to argue that to do so isn’t to work against shared interests.

Scotland’s Claim of Right was integrated into the Acts of Settlement and Union and is part of our shared constitution.

The Scottish independence movement works against this principle and therefore against the movement for global order. Consequently to write a constitution without connection to any ‘moment in history’ (ie war) is to create a new phase of war. And I’m not sure the SNP want to instigate outright war in Ukraine by justifying Russian aggression with a legal precedent for unbalanced relations.

British exceptionalism is universal unity based on equality; our exceptionalism is our commonality.

And if we forget our history we will prove it again.

Who would write this important document? We need people with a deep and profound knowledge of our history and customs combined with a superb grasp of the English Language. Anyone of any stature is dead -Orwell, Tyndall, Kipling , Churchill , Gladstone, Lloyd George,etc. Probably Michael Foot is the only person with the historical knowledge and erudition to be part of the drafting team. A constitution drafted by G Brown would have the appeal of an under cooked suet pudding.


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