UK Bill of Rights
28th January 2014
UK Bill of Rights
A Bill of Rights is not a modern invention. Indeed, next year we celebrate the 800th anniversary of Magna Carta, which was agreed not too far away from here and is the root of so much that then followed. The need to enshrine our basic rights against arbitrary executive power is just as necessary and just as resisted as it was all those centuries ago. It was not until after the English civil war that, in 1689, the expression “Bill of Rights” was first used, in an important statute passed to define the role of the Crown. One hundred years later, it was used not for a separate list but as the beating heart of the constitution of the United States. These days, the expression is used to refer to a document that has some degree of constitutional status and that declares the fundamental rights of all people by virtue of their common humanity. A Bill of Rights is the human engine of our democratic settlements, without which our constitutions, written or not, are just hollow organisational charts.
Those rights are described in different ways: basic, fundamental, inalienable, inherent or natural rights, the rights of man or, in a limited context, constitutional rights. We know that the expression “human rights” was probably first used in Tom Paine’s translation of the French Declaration of the Rights of Man. If I may, I will wish Thomas Paine a happy 277th birthday for tomorrow. He was England’s greatest political philosopher and democratic export, and I dedicate this debate to him.
The United Kingdom added to that rich vein in the 1940s by gifting to the rest of Europe its convention on human rights, to enshrine the inalienable rights that Tom Paine first put into words in 1791. That convention was written by British lawyers and British politicians, and has been adopted by 43 countries and over 800 million people. The United Kingdom then ratified the convention in 1951 and with the introduction of the Human Rights Act 1998, the European convention on human rights was repatriated into UK law, allowing UK citizens to seek redress in UK courts for human rights offences covered by the ECHR.
Of course, that is not the end of the story. As someone involved in this field on the Front Bench in the early 1990s, I can personally testify that the intention was to build on the ECHR and move forward to a British Bill of Rights. However, the Executive power of today is just as anxious as King John to avoid constraint and definition of its power. Our failure to put in place that fundamental of democracy, a separation of powers, means that the Executive have a control of Parliament that even Charles I could only have dreamed about. The Government who should be held to account by citizens are the very body who authorise the rights of those citizens. That contradiction presents its own danger. As Professor Robert Blackburn wisely said:
“The truth is that governments of all persuasions have a vested interest in moulding our constitutional arrangements in a manner that suits their own political, financial, and administrative convenience...Nothing is more dangerous than corrosions of liberty dressed up as constitutional safeguards.”
None the less, in March 2011 the Government established a Commission on a Bill of Rights that would
“investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.”
Sadly, the commission was unable to agree on a way forward. That has allowed the short-termist nature of our daily media and daily politics to wash over and, to some degree, trivialise the rights agenda.
Today, I want to rebalance that, to look past the immediate squabbles and restate why our rights are important, and why we would want to continue to have them written down and ensure that they remain so in future. Anthony Lester, as always, finds the right words. He says that
“the Human Rights Act gives necessary protection to the civil and political rights of everyone, and not only unpopular or vulnerable minorities—the right to life, and freedom from torture or other ill-treatment, to liberty without arbitrary arrest or detention; to freedom of speech, assembly and association, fair trials by independent and impartial courts respecting the presumption of innocence, to personal privacy, home and private property, to education, and to equal treatment without unfair discrimination”.
In 2002, the results of a Public Agenda national opinion poll in the United States showed that 67% of those interviewed felt that it was “absolutely essential” for ordinary Americans to have a detailed knowledge of their constitutional rights and freedoms, and 90% agreed that, after the 9/11 attacks,
“it’s more important than ever to know what our Constitution stands for”.
“its principles and values are alive and well in their hearts.”
What about Britain? What would a poll of that nature look like here in the UK today? Would there be a wide consensus that a UK Bill of Rights would provide a baseline of common values to which the public could refer? A survey quoted by King’s college, London, in “Codifying—or not codifying—the United Kingdom constitution: The existing constitution”, a report written for the Political and Constitutional Reform Committee, of which I am honoured to be the Chair, seems to support the notion that increasingly British public opinion is in favour of a UK Bill of Rights. It showed that most people agreed strongly or slightly with the view that
“Britain needs a Bill of Rights to protect the liberty of the individual”.
There is still work to be done, however, and there are issues that still need to be explored. We need to take the word out, past the fog of media short-termism and the excuse making and opportunism around particular aspects of rights in general. We need to assess, for example, whether our rights could be better articulated—perhaps the Minister will have something to say on that issue—as they are currently spread far and wide, in a host of different places.
We could learn from the United States. It is well known that Americans’ sense of civic duty goes hand in hand with being American. It is so much easier to fulfil that civic duty when someone has a clear sense of what is expected of them—of what they belong to and of who they are. Here in the United Kingdom, many of our responsibilities and duties already exist in statute or are woven into our social and moral fabric, and into common practice. A UK Bill of Rights—an extension of the Human Rights Act—would reflect their burgeoning importance in our democracy.
Bills of Rights are not just legal and constitutional documents; they provide ownership and promote citizenship. We are a society in constant flux, and a Bill of Rights would help to form a common bond across our increasingly mobile and diverse society by emphasising our togetherness, what unites us and our shared political values. As part of a post-Scottish referendum settlement, a Bill of Rights could be an important unifying force across all the nations of our Union. I believe that a Bill of Rights would also help to reinvigorate our democracy. A Bill of Rights would have a symbolic and iconic role, much like the one across the Atlantic. Endowing citizens with human rights as their birthright not only protects the rights of individuals, important though that is, but has the symbolic role of highlighting the fundamental principles of a democracy and signifying what a country such as ours stands for.
“a government without a constitution is a power without right.”
Codifying our rights would help the British political system to be founded not on judicial archaeology by insiders but on a legitimate, open and transparent basis understandable to all. The history of Executive resistance to external rules and definitions shows the fragility of human rights law. We have human rights law at the moment, but we need to look after it, let alone extend it. History also shows the importance of entrenching democratic principles not with the passing whim of whomever happens to form a Government but in an enduring and overarching written settlement of our democracy—a written constitution.
I ask the Minister to join me and many others in restarting this debate. A UK Bill of Rights is the next step forward in securing the constitutional thinking that Magna Carta prompted nearly 800 years ago. Magna Carta should not be a relic, barely used, encased and on display; it should encourage further evolution, growth and strength within our democracy. We may go looking for a British Bill of Rights and yet find our soul and our liberty.
The Minister of State, Ministry of Justice (Simon Hughes): Bore da, Mr Williams. It is a pleasure to serve under your chairmanship. I am grateful to the hon. Member for Nottingham North (Mr Allen) for bringing
a UK Bill of Rights back on to our agenda. He and I have often worked together, and he is greatly respected across the House not just personally but for his chairing of the Political and Constitutional Reform Committee. I am pleased that he has secured this debate. He might expect me to say that, as I am a human rights lawyer by training—I did a traineeship and worked for a while at the Council of Europe in Strasbourg dealing with human rights applications from this country. I am delighted to have the privilege of responding to this debate, which is home territory for me. The one thing I had not realised is that tomorrow is the anniversary of Thomas Paine’s birth, so I join the hon. Gentleman in recognising the timeliness of today’s debate. My hon. Friend the Member for Lewes (Norman Baker) will no doubt celebrate tomorrow, because that is where Thomas Paine did his writing.
On 15 June 2015, we celebrate the 800th anniversary of Magna Carta, and plans are in hand for great celebrations, and so they should be. Magna Carta was the first general statement of rights in England, and three clauses remain in force. Clause 1 confirms the liberties of the Church of England and of all freemen of the realm. Clause 9 confirms the liberties of the City of London and other cities, towns and ports. And Clause 29 reads:
“No Freeman shall be taken or imprisoned, or be disseised”—
“of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
That principle drives the hon. Member for Nottingham North, and it should drive us all in a country in which we do not have a codified constitution. We have written documents, but they are not put together in one place.
When people talk about the Bill of Rights, the one that most comes to mind—the hon. Gentleman referred to this—is the Bill of Rights enacted in 1689 after William and Mary were invited to take the throne after the end of the reign of James II. Of that legislation, the declaration of right remains. It is the only formal Bill of Rights that this country has ever had, but the key elements are as relevant today as they were then: that Parliament should be frequently summoned and that there should be free elections; that Members and peers should be able to speak and act freely in Parliament; that no army should be raised in peacetime and that no taxes be levied without the authority of Parliament; that laws should not be dispensed with or suspended without the consent of Parliament; and that
“excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.
We do not have laws in this country with a constitutional status above other laws, and Parliament is free to repeal any legislation that it wants to repeal, but if one looks back across the sweep of history, Magna Carta and the Bill of Rights are the two laws that people regard as the bedrock of our democratic country’s civilisation today.
When preparing for this debate, I not only considered the recent Commission on a Bill of Rights, which I will address in a second, but looked at which other countries have Bills of Rights. I was surprised to discover that fewer countries than I expected have something called a Bill of Rights, although many have written constitutions. Obviously, Thomas Paine translated from the French “Declaration of the Rights of Man and of the Citizen,” which was part of the French constitution. In addition to the UK’s Bill of Rights, the first 10 amendments of the US constitution are called the Bill of Rights. The 1922 constitution of the Irish Free State adopted a Bill of Rights. Canada passed a Bill of Rights in 1960, although that was updated with something called a charter of rights and freedoms. New Zealand passed a Bill of Rights Act in 1990, and the new South African constitution of 1996 contains a Bill of Rights. In terms of specific provisions, those are the common law traditions.
I am pleased that the hon. Gentleman did not forget to say what we are talking about. I am often frustrated when people debate Bills of Rights or human rights and do not say what those rights are. He cited some of the rights, but I will state the convention rights that, at the moment, are the nearest we have to a Bill of Rights. The Human Rights Act 1998 allows people to exercise those rights in our courts, and I think they matter hugely to the people of Nottingham, Southwark, Hampshire, east London and elsewhere, and we should get the message out loud and clear. We do not do enough to ensure that people understand that they have the following rights: the right to life and the abolition of the death penalty; the prohibition of torture and inhuman or degrading treatment or punishment; prohibition of slavery and forced labour; the right to liberty and security of the person; the right to a fair trial; prohibition of punishment without law; the right to respect for private and family life; the right to freedom of thought, conscience and religion; the right to freedom of expression; the right to freedom of assembly and association; the right for men and women to marry and found a family; the right to peaceful enjoyment of personal property; the right to education; the right to free elections; and the prohibition of discrimination. There is no citizen or resident of this country who would not sign up to those rights. Between us we clearly have not done enough to get out the message on what we are talking about. There is often huge criticism of human rights, yet if people are reminded of what those rights are about, they say, “We want some of that, please.”
“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
“We will…ensure that everyone has the same protections under the law by protecting the Human Rights Act.”
When the coalition was formed, there had to be a negotiation and as the hon. Member for Nottingham North rightly alluded to, we agreed in the coalition agreement to deal with it. The coalition agreement is clear:
“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights”—
“ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”
That was an attempt to reconcile two different proposals for how we move forward from two different parties, but I think it was a perfectly proper next step. I repeat the thanks to the commission for the work it started and has completed, and for the report it has given to the Prime Minister and Deputy Prime Minister. It has made a significant contribution to the debate and I refer those who are interested to the commission’s report, “A UK Bill of Rights? The Choice Before Us” which was published just over a year ago, in December 2012, and is available. It is worth a read.
The commission did about a year and a half of work to produce its final report. It was thoughtful and detailed, and I remind the Chamber of its key conclusions. A majority of the commission concluded that there is a strong argument in favour of a UK Bill of Rights. However, that was on the basis that any such Bill would need to incorporate and build on all the UK’s existing obligations under the European convention on human rights and that it would provide no less protection than is currently contained in the Human Rights Act and the devolution settlements. That was in line with the terms of reference that the commission was given.
The majority of the commission saw the lack of public ownership of the Human Rights Act and the European convention on human rights as the most compelling reason in favour of a new Bill of Rights. That was exactly one of the themes in the speech made by the hon. Gentleman; the public do not seem to own the constitutional settlement in our country and do not understand that it is theirs and for them. It should be for the people, not for the Government. Some of those in the majority favouring a Bill of Rights felt that a Bill could usefully define the scope of some rights more clearly and adjust the balance of those rights.
Two commissioners dissented from the majority view. They concluded that neither the commission’s two consultations nor the commission’s own deliberations had identified any real shortcomings, either in the Human Rights Act or in the way in which it is applied by the courts. They also pointed to an overall lack of public support for a Bill of Rights in the responses received to the two consultations that the commission held. They were concerned that any move to a UK Bill of Rights would lessen the rights protection that is currently available. They were also concerned that developing such a Bill of Rights would be the first step on the road to the United Kingdom withdrawing from the European convention on human rights.
With two dissenters, but a much larger majority, the commission could not reach agreement on all its conclusions, and therefore, it put back to the Government issues and places that they should consider for future action. All commissioners agreed that any debate on a UK Bill of Rights had to be fully alive to the sensitive issues of devolution—you will appreciate that as a Plaid Chairman, Mr Williams, as I do very clearly, as someone with Welsh, Scottish and English blood—and the current state of devolution settlements, particularly with the referendum in Scotland later this year, means that we should wait until we know what the outcome of that is. Starting to talk about UK Bills of Rights when we do not know the future of the UK would be unwise. Of course, the Government are fully committed to encouraging people in Scotland to vote in favour of staying in the United Kingdom and I add my small voice to that plea.
Human rights are intricately woven into the existing devolution settlements. Debates are ongoing, including in Northern Ireland, where there has been a huge debate on human rights issues, and in Wales and Scotland, so doing anything now would not be appropriate. We are not far from being on the other side of the referendum decision, and therefore, the hon. Gentleman’s request that we put the issue back on the agenda is perfectly timely. We have the revolution—sorry, devolution, or independence referendum in September. We might have a revolution some time, but that is not in my brief and is not planned anywhere, as far as I know. We then have the Magna Carta celebrations next year, so the debate is timely, and I am grateful that it is, as it were, the trailer for that.
It is also important to note that the commission’s findings revealed wide differences of opinion in different parts of the UK. Many respondents from Scotland, Wales and Northern Ireland argued that there was little or no call for a UK Bill of Rights. The commission’s final report says:
“As a matter purely of practicality all of us believe that, while we would not want to see an inhibition on further discussion…it would be essential to await the outcome of the referendum”—
“before moving towards final decisions on the creation of a UK Bill of Rights for the obvious reason that it will only be after the referendum that the future composition of the UK will be known.”
The Government have publicly acknowledged the diligent way in which the commission discharged its terms of reference. They have thanked it and I repeat those thanks. The Government have publicly acknowledged that they agree with the conclusion that the time is not right to proceed with a Bill of Rights or changes to the current legislative framework for human rights, for the reasons set out by the commission.
We have agreed, in the context of the coalition agreement, that the obligations under the European convention on human rights will continue to be enshrined in British law. Whatever the different party views and individual views, that is the position agreed across Government and it will not change during this Parliament. Although political parties have expressed views on policy directions that they may want to consider in the future, the coalition agreement does not set out any plans for major changes to the human rights framework before the election. That may be disappointing, but it gives the hon. Gentleman, his party, his Committee, my party and other parties the opportunity to warm up the debate. I can trail the fact that at our party conference in York next month we will be debating these very issues, and I am sure that the Conservative party will be doing so soon, because a document is apparently in preparation. The Labour party will certainly have the matter on its agenda too. Therefore it will not go away and nor should it. I hope that as a result we have the opportunity to reach the British public with these issues.
“consider ways to promote a better understanding of the true scope of these obligations and liberties” arising from the European convention. In chapter 10 of its final report, it noted that few respondents to its consultations had made submissions on that aspect of its terms of reference. As for discharging that part of its remit, the commission noted that its major contribution was the publication of its report. It hoped that putting the report before the public would get the debate going and encourage people to respond. The report sets out in some detail the background and history of our human rights framework, to promote an understanding of the context for the current human rights debate.
“are often conveyed in polemical and sometimes inaccurate terms.”
I believe that that is unarguable. Colleagues will all have read much—bad things and possibly some good things—about human rights, but media reporting is often blighted by myths. I call on the public to look not at the headlines in the tabloid press about what human rights mean, but at the judgments of the courts, the articles of the convention and the contents of this debate. I hope that our debate has helped to make people look at the real issues and the real benefit of human rights and not the froth and the politics. Misleading and mischievous headlines serve only to obscure the good that human rights protection can do.
Human rights are not about bowing down to frivolous demands. They are about common-sense decisions affecting people’s rights when coming into contact with the power of the state. I share the hon. Gentleman’s view that we need to strengthen the power of the citizen and the power of the legislature against the Executive, and the Government share that view too.
If we can look beyond the sometimes skewed perceptions, we see that the Human Rights Act is a measured piece of legislation when understood and used properly. It can be a force for good. It brought a lady suffering from Alzheimer’s disease who had been moved to a care home far from her family back closer to them, so that they could continue to visit and care for her. It was instrumental in returning a young man with autism and severe learning difficulties to his father after their local authority decided to keep him in respite care for a year against his father’s wishes.
Those are the issues that matter and that motivate the hon. Gentleman, me and other Ministers in the Government, so I am grateful that he has brought the debate to the forefront of our minds. I hope that I have conveyed how important the Government believe it is that human rights remain a foundation stone in our legislative framework. I do not think, and the Government do not think, that we should take any steps that lessen existing protections or that move us from the Government’s agreed position, set out in the coalition agreement,
“that these rights continue to be enshrined in British law”.
This is not the end of the development that started with Magna Carta and continued through the Bill of Rights. The hon. Gentleman must, with his Committee, continue to press the issue. I will do so inside Government and I hope that Government will continue to uphold these rights and ensure that we are seen as the country in the world that stands for them most clearly and where they can be exercised most specifically by the public.