Since 2010 there have been serious discussions in Parliament about the possibility of creating a British Bill of Rights. The topic of constitutional law does not often become something of popular discussion, but following the Scottish referendum of 2014 and the current EU renegotiations by David Cameron, potential reforms are currently at the centre of British politics.
In this article we will concentrate on the possibility of a British Bill of Rights, but it is worth noting that there are many other elements of our English legal and political system that are currently under review. Examples of other contentious constitutional issues include:
• The separation of power between the government and the courts. This relationship has been affected by EU law taking priority over UK law, and it has created a more politically “active” Supreme Court.
• The role of the House of Lords in the UK law-making system. As you will have studied in the Diploma course, laws in the UK usually require the approval of both the House of Commons and the House of Lords. Reform of the House of Lords is another significant change that the current government is keen to deal with.
From the Human Rights Act to a Bill of Rights?
The Human Rights Act (HRA) was introduced in 1998. Essentially, it allows UK nationals to rely on rights contained in the European Convention on Human Rights. These Human Rights take priority in the UK courts over laws created by Parliament, and this is something that has caused a lot of concern for politicians of all political parties.
Those most opposed have described the Human Rights Act as a “criminals’ charter”. You only need to look at news headlines to see that politicians opposed to the HRA have all the ammunition they could ever wish for. Consider the finding on 5 February 2016 by a United Nations working group that WikiLeaks founder Julian Assange has had his human rights breached. He has supposedly been deprived of his right to a fair trial, but he has been in self-imposed imprisonment in the Ecuador Embassy in London for nearly four years. It is no wonder that decisions about human rights issues have been called things like an “abuse of common sense” by politicians such as Tony Blair (2006).
In defence of the HRA, it is a way to ensure that public bodies like the police, courts, local government, hospitals and schools all have to respect certain fundamental freedoms. There are 15 protected rights in total, and these include things like the right to a fair trial, the right to liberty, protection from discrimination and the right to education. None of these rights are bad things, and they should be protected in a modern democracy. So what is the answer, get rid of human rights from the UK or create our own UK version in an English Bill of Rights?
Replacing the Human Rights Act?
It was under Tony Blair’s Labour government in 2007 that consultations to create a UK Bill of Rights began. One suggestion was that the government would continue to protect the same fundamental human rights but that citizens would also owe specific “duties” or “responsibilities”. This might include a duty to obey the law and pay taxes. What this would mean in reality is hard to say as no political party has provided much specific detail. Would your rights be subject to “good behaviour”? Perhaps not such a problem when removing someone’s right to liberty when he/she is convicted of a serious crime, but should the police and court system have no limit to their power to imprison? An interesting case you could consider is that of the “naked rambler” who has already spent ten years in prison and could face a lifetime behind bars. He could be described as someone who is at worst a public nuisance, but is he really someone who should be locked away longer than an armed robber or a murderer? Perhaps he should be given mental health treatment?
Perhaps the Conservatives’ current policy to seek greater national power over how individuals’ rights are applied in the UK is the best approach. Only a few years ago, the possibility of the UK opting out of the European Convention on Human Rights would have seemed farfetched, but now we will be having a referendum by 2017 to decide if we stay in the European Union at all.
A new constitutional framework?
All of these uncertainties and possibilities about a Bill of Rights are really leading us to a bigger question. Do we need to change our entire constitution? A constitution is just a set of principles that allows our state to govern us, the people. In the USA they have a written constitution, whereas in the UK the closest we have is the Magna Carta (note recent journal articles about the 800th anniversary of this document). If we were to leave the EU, then there would be a strong argument that as a nation we should not only create a UK Bill of Rights but also a written constitution. This could deal with those other difficult constitutional issues mentioned earlier in this article, such as what powers the courts should have to keep the government in check, and whether we should allow unelected individuals such as the Lords or even the Queen to have decision-making powers in our law-making system.
In the UK, legal principles and tradition can be in place for hundreds of years before developments are made. Changes to the English legal system are not common, but over the past ten years, pressure has been building for a fundamental overhaul of the system. The current negotiations on membership of the EU, the review of the House of Lords and the potential creation of a Bill of Rights are all issues that may result in major changes to the structure of our law-making and legal system. Unfortunately, these constitutional issues are problems currently without a solution, but members will be kept informed as new legal systems and doctrines develop over the coming years.