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A BRITISH BILL OF RIGHTS?
Colin Harvey
Human rights as part of a nationalist agenda? Unfortunately, it has been said. Yes, human rights appear to be central to a new British ‘nationalist’ agenda. David Cameron wants to repeal the ‘inadequate Human Rights Act’ and is calling for a British Bill of Rights to reflect British values. In his speech of 26th June 2006 to the Centre for Policy Studies in London he argued that the Human Rights Act is getting in the way of the ‘fight against crime’ and impeding the protection of national security. He acknowledged that the Act had not caused many of the problems he identified, but argued that it had ‘made things worse’. He singled out the direction taken by the Strasbourg Court. He is supporting a ‘modern British Bill of Rights that also balances rights with responsibilities’.
There are two things that stand out about David Cameron’s proposals. First, they derive from a concern about the current levels of protection. The view is that the European Court has gone too far and is therefore impeding the domestic policy agenda. The second is the linkage of rights to an emerging ‘Britishness agenda’. The call is for a Bill that will reflect a somewhat vague notion of ‘British values’. David Cameron is not alone. Gordon Brown continues to draw on ‘inclusive’ notions of Britishness. In speeches delivered in January 2006 and February 2007 he noted the lack of a constitutional settlement and drew connections to the role of shared values in informing a sense of national purpose. There is now talk of further constitutional reform which might just include discussions on a Bill of Rights.
Picking up on this new mood, JUSTICE - the respected human rights NGO - has published a discussion paper on ‘A Bill of Rights for Britain?’ and the Joint Parliamentary Committee on Human Rights has recently announced an inquiry. But the Bill of Rights campaign in Britain is not new. It has a distinguished history and many (including the Labour Party at one point) saw ‘incorporation’ of the Convention as a first step only.
But doesn’t Britain already have a Bill of Rights? Not the one from 1689, but the Human Rights Act 1998. It has been called a ‘constitutional measure’ and referred to as a ‘Bill of Rights’. Supporters of the Human Rights Act, and the model it advances, stress that this is the Bill of Rights. They point to the fact that its objective is to give ‘further effect’ to Convention rights and, among other things, highlight its place in the devolution arrangements throughout the UK. They believe that the ‘dialogue’ model it promotes gets the constitutional balance right. Often neglected is the sense of a ‘national project’. Look again at the debates from 1997 and 1998. The Government’s White Paper ‘Bringing Rights Home’ is packed with references to Britishness. British people will be able to access rights in British courts. British judges will make a contribution to the development of the Convention jurisprudence, and so on. This is the untold story of the enactment of the Human Rights Act.
David Cameron argues that the Human Rights Act has gone too far. Others adopt a different view. JUSTICE, for example, understands any British Bill of Rights as ‘European Convention-Plus’. A legal instrument that will take the European Convention on Human Rights as its starting point. Many of those involved in the debate start from the same place. They would like to see a Bill of Rights that goes beyond the European Convention. Nonetheless, supporters of the Human Rights Act are worried. Caution is expressed about the merits of re-igniting the debate on a British Bill of Rights at this time. There are sound reasons why caution should be demonstrated in Britain. The Human Rights Act still needs more time to bed down. As the Department for Constitutional Affairs Review of July 2006 indicated, there are myths about the Act which must be challenged. The Commission for Equality and Human Rights has work to do in this respect. Reviving a Bill of Rights debate in Britain risks promoting the perception of moving on from the Human Rights Act. Strategically, the suggestion is, the time is not right. Scepticism about the Act in the British media is intense. If the debate is now driven forward in Britain, with repeal of the Human Rights Act on the agenda of the official opposition, would a ‘European Convention-plus’ model of human rights protection be the likely result?
There is merit in promoting inclusive notions of national identity. Gordon Brown has moved precisely in this direction by defining a modern conception of British identity anchored in shared values. The process is, of course, terribly question-begging and aspects of it are deeply troubling. But is it better to leave this to those who advance racist and xenophobic theories of belonging? A case could be made that national identity in Britain does need to be rescued for progressive politics. It would be odd if rights were not to form a core element of any progressive national constitutional tradition. But by obsessing over national values we miss the real message. The clue to understanding ‘human rights’ is in the title. These are human rights. Rights may be viewed as intrinsic to notions of ‘constitutional patriotism’, and people sometimes display great pride in their constitutions (however dated and problematic). These constitutions may even elevate citizenship and attach special entitlements to this status. But the message of human rights is that protections are owed to everyone. To suggest that rights might be exclusively British or Irish, or trapped in the values of one national tradition, is misleading. Rights often gain real meaning in national contexts, but these rights are anchored in a framework of international protection underpinned by a focus on ‘the person’. As we watch the debate on a British Bill of Rights there is a simple message: Human rights belong to every individual within the jurisdiction of the state.
Professor Colin Harvey is Director of the Human Rights Centre, School of Law, Queen’s University Belfast. This article is written in a personal capacity only.
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