Austen Morgan takes issue with Justice's analysis on the impact of devolution on amendment or repeal of the Human Rights Act. Three points have to be made.
First, Trevor Phillips makes a vital point which is apparent from the headline of his contribution in the Guardian this week: "The parties' woolly thinking is putting human rights at risk."
All three major political parties say that they want a British bill of rights. The problem is in defining what they mean. The Liberal Democrats are fairly clear: they favour a bill of rights within a written constitution. We have yet to hear from the Labour government: it is attracted to some form of declaration of responsibilities and rights in addition to the Human Rights Act. We counsel against mixing justiciable statements of rights with symbolic declarations of responsibilities. The Conservative position is unclear. Morgan is a member of the Conservative commission on a bill of rights, which has been sitting for a couple of years, so publication of its advice would be helpful. David Cameron talks of scrapping the Human Rights Act, but his favoured replacement, if any, is unclear.
Morgan asserts that Justice initially favoured a bill of rights, but then changed its mind. This is a misunderstanding. We are not, and never have been, in favour of a British bill of rights. We are not, and never have been, against such a proposal. We say that it depends what you mean. In 2008, we presented a substantial report entitled A British Bill of Rights: Informing the Debate at a conference including an impeccably all-party platform – Shirley Williams, Michael Wills and Dominic Grieve – which discussed and welcomed our assessment of the relevant issues.
Last autumn, as part of an unprecedented exercise in democracy, we consulted our members on a draft paper on what was needed to support a bill of rights. As a result of this, our council agreed seven particular conditions that we think are vital. These include widespread public support throughout the UK and retention of the core mechanisms of the Human Rights Act.
Second, Morgan takes issue with a recently published paper on the legal and political issues relating to devolution. He argues that the sovereignty of the Westminster parliament is "really the beginning and end of the matter". Everyone agrees that Westminster has the ultimate legal option of cancelling devolution and re-asserting national sovereignty. However, it is also apparent that, to take the example of one devolved jurisdiction, the Scottish parliament also has some degree of competence. After all, it has legislated at least twice on human rights issues, once to set up the Scottish human rights commission.
The potential impact of amendment to the Human Rights Act on the devolution settlements is a constitutional, legal and political nightmare. This is because, as Morgan correctly says and as we argue, the Human Rights Act is built into the framework of devolution. In addition, there is undoubtedly a serious argument that the consent of the Scottish parliament may be required for amendments to be made to the Human Rights Act (depending on what they were). Regardless of that, there is an overwhelming political argument to the same effect. There needs to be a truly national debate on this issue.
Finally, Justice's fundamental concern has been that any party that chooses to invoke the language of the Glorious Revolution of 1689 meets the implied challenge of that comparison. A British bill of rights must be seen as a serious constitutional document that will stand for a considerable period of time (the precedent is three centuries plus) and not as a short-term party political project. It is time for all three political parties to let us see their detailed proposals and to expressly accept that this is a constitutional debate qualitatively different from, say, the future of education or even treatment of the national debt. The great weakness of the Human Rights Act has been the myths that have been fostered about what it actually does. Its great strength has been to remind us that democracy requires both elections and values.
The strongest democracy in the world is probably that of the US: it has no problem combining a judicially enforceable bill of rights, a written constitution, separation of powers and vibrant elections. Is that what proponents of a British bill of rights want? If so, bring it on. If it is an attempt to clip the wings of the European convention of human rights, then such a proposal would be unworthy of its name.
Comments in chronological order (Total 2 comments)
4 March 2010 7:53PM
The US has a fully codified constitution, in which the Bill of Rights is incorporated. A free standing statute in the UK(or England) does not measure up to this standard.
A judicially enforceable Bill of Rights should only occur as part of a longer term project to fully map out the separation of powers along with the checks and balances involved. What Parliament is going to grant the judiciary full and final power on all issues regarding human rights protection, at the expanse of its own?
4 March 2010 10:50PM
Sovereignty - Parliament or People?
The debate over Bill so Rights and Responsibilities will continue to suffer ongoing terminal confusion, unless a central core principle is determined. Just where does sovereignty reside - with the people?, Or with Parliament?
In England, current orthodoxy is that Parliament is sovereign. This is thinly disguised behind meaningless cant about the 'the monarch in Parliament' This leads to dictatorship by the intermediaries' who can and do ignore popular will, rights and sometimes, responsibilites.
Scotland has a different and older tradition, first expresssed in the Declaration of Arbroath in 1321. That is, the people are sovereign, The people choose their rulers and can and will depose them if they go against the collective will of the populace. Thus the Scots Parliament was always held to be subordinate to the people, not the master of the populace. This divergence of view, is part of the cultural revolution being expressed by the SNP-driven return to a healthier democracy.
A start point has to be recognition that England began as an autocracy, compromised as a result of civil war and restored monarchy, and ended up a semi-reformed 'parliamentary/monarchical system autocracy cloaked in a partial parliamentary democracy'.
It is significant that the 'mother of parliaments' offspring have drastically modified and increased the democratic attributes of their own parliaments, in Australian federal and state parliaments, NZ, Canadian provinces and federal parliaments, and now in the Scottish Parliament and Welsh Assembly.
Given that the next five years will see the re-emergence of independent English and Scottish countries, both have the opportunity to clean up their constitutional frameworks. Since this is an English-focused newspaper, I state the case for English constitutional reform based on the doctrine of the sovereignty of the English people (ie all English domiciled, voter-registered citizens) in the English nation.
The mindset, frame of reference, thrust and content of a Bill of Rights that is centred on a free, independent and bottom-up controlled democracy, is vastly different to one conceived as a controlling Parliament, graciously conceding some 'rights' to a grateful subservient populace.
That is why the USA can start from the viewpoint of "We the people ..." and 'British', read English reformers, tie themselves in knots catering for parliament's dominance.
I will argue, briefly, that in past ages of poor communications and transport, it was necessary to delegate the people's will and powers to parliamentary intermediaries. Who promptly accrued power to the centre, for their own benefit. Colluded with by the monarchy and Lords, together with a population's mindset of subordination stemming originally from the Norman Conquest and feudal hierarchy.
The modern isssue is that the speed of information and feedback from parliament to people is nanoseconds. The input speed is vastly slower. The intermediaries can be functional, non-functional, or dysfunctional gobetweens. All gobetweens interpret, transmit partially, interpet badly usually, and inject their own self-centred interpretations, values and self interests.
I argue that up to the end of WWII, MPs were a (semi) functional system, by the late 1960s they had become non-functional. Under the Thatcher, Blair and Brown government, they have become actively and increasingly dysfunctional. That constitutes one basis for Scottish independence. In Enngland it creates a driving need for assertion of the sovereignty of the people and a root and branch replacement of partial democracy by fully democratic institutions, methods, procedures and practices. It is emphatically not a call for a lurch to right or left totalitarianism.
To conclude, I believe that the popular distrust of Bills of Rights as actual or potential Rogues Charters, is instinctively correct. Conviction as to the sovereignty of the people has a concomitant core belief in collective wisdom. And, of course collective wisdom is not infallible. Fallibity on occasion does not invalidate its existence.
The constitutional deficiency to be addressed is the need for the creation of a modern social contract of sovereign citizen with the social, economic and political institutions and structures run on their collective behalf. This must address all the multivariate to, with ,for and from all these relationships. To, with, for and from their elected representatives, their relationship with the state and its institutions, the legal and electoral systems, for example.
It is not sufficient to define Rights alone, or Rights and Responsibilities even, I advocate a Bill of Rights, Responsibilites and Duties.
Eg. A right of free speech.
A responsibility to refrain from willful slander and libel.
A duty to appear when summoned and to tell the truth on oath in a court of law.
Vested interests always resist change. When the vested intersts have their grubby fingers clutching the levers and buttons of state power, control and privilege, it takes major assertion of popular will to redress the misallocation of power. The power and control freaks, centraliser, instinctive autocrats and ideologues who know better than the people what is good for the people will resent and resist, to the nth degree.
The Scottish people have mustered the willpower to restore democracy and the will o the people through the SNP. I have faith that the same spirit, determination and drive to create a better England will see the same happen in England.
Finally there should be some kind of all-inclusive injunction, such as: Notwithanding all other considerations, if not able to do good, do no harm. That addresses environmentalism, sustainability, etc.