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24 September 2008

A bill of rights for Britain?

The historic problem with the British 'charters of freedom' like Magna Carta are that they are aimed

By Ted Vallance

Discussion of a new bill of rights, once championed by both Cameron and Brown, has been pushed to the political margins. This is no surprise. A written constitution threatens both Labour’s authoritarian concept of citizenship and the unaccountable power of MPs.

Aside from other delights, including the RSPCA’s ‘beer and curry night’, this year’s Labour conference fringe featured a discussion of a new British Bill of Rights, led by that doughty campaigner for the liberties of elderly Chilean dictators, the Rt Hon. Jack Straw, MP.

It’s no surprise that discussion of a new bill of rights has been relegated to the conference side-lines. While both Cameron and Brown have flirted with the notion of British Bill of Rights before, these nods towards constitutional reform have recently slipped off the political radar.

Instead, Brown’s government has continued trumpeting its obsession with defining Britishness and ‘British values.’ Take the publication of Liam Byrne’s Demos pamphlet, A More United Kingdom. An atrociously written piece of invidious nonsense (Byrne subjects the reader twice to an account of his formative experiences in Essex), the report was rightly derided for its suggestion that a national binge-drinking festival might be an appropriate use of a new public holiday.

But lurking underneath all this laughable pontificating on national identity was Labour’s frighteningly authoritarian, semi-fascistic vision of ‘earned citizenship.’

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For Labour, rights, like the Blairite buzz-word ‘respect’, have to be earned. Byrne’s pamphlet lays out the remarkable number of hoops that applicants will have to jump through before receiving the glittering prize of British citizenship: they will take oaths and tests; they will secure references from bona-fide Britons; they will submit to background checks; and most importantly, they will prove they have enough cash and/or skills to make them economically useful to the nation.

Amongst all this discussion of ‘shared standards’ and ‘community cohesion’, any reference to a bill of rights embodying ‘British values’ is tellingly missing. The omission is almost certainly deliberate.

On 10 August this year, the Parliamentary Committee on Human Rights issued its report on a new bill of rights for the UK. Released in the midst of the political silly-season, it went virtually unnoticed. However, for a report created by a cross-party committee of MPs, this was an astoundingly radical document.

The report rightly delivered withering criticisms of the government’s stance on a bill of rights, noting that ministers overwhelmingly presented the case for a statement of civil liberties in negative terms: to clarify that rights brought with them heavy responsibilities; to rectify the problems with the ‘criminal’s charter’ (a.k.a. the Human Rights Act.)

All this talk, the committee pointed out, tended only to reinforce misconceptions about human rights law in this country. Instead, the government should ‘seek pro-actively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true.’

Not only this, the report insisted, but ministers should stop talking about rights as if they were dependent upon the fulfilment of ‘responsibilities.’ As the journalist Henry Porter argued in evidence to the committee, this appeared to make civil liberties the gift of munificent ministers.

The committee also rightly condemned the government for its insistent linkage of rights with ‘Britishness.’ Most of the rights and values bandied around by ministers (‘tolerance’, ‘fair play’, ‘the rule of law’) were universally recognised, not particular to the ‘Atlantic Archipelago.’ Consequently, the parochial outlook of constitutional debate in Britain should be opened up to bring international human rights documents into any future consultation on a bill of rights for the UK.

The report, however, went far beyond offering criticisms of government policy. A draft of a prospective UK bill of rights was attached as an appendix to the report.

Looking at it, it is sometimes hard to believe that this was a document drafted by current Conservative, Labour and Liberal-Democrat MPs. The draft bill incorporates not just ‘classical’ civil liberties (freedom of association, conscience, expression, etc.) but also social and economic rights (the right to free health care, the right to a free education, the right to an adequate standard of living.) Reading this draft bill of rights, you can almost see why someone might want to become a British citizen.

Coming after the resignation of David Davis over 42-day detention, the committee’s report hints at the beginnings of a cross-party consensus on the need for a clear and legally enforceable statement of civil liberties in Britain.

While this is welcome, there is, of course, a catch. Not only is the issue of civil liberties an unlikely vote winner (neither Davis’ campaign nor the notion of a bill of rights seem to have really captured the public’s interest), but the draft bill of rights proposed by Committee on Human Rights is fundamentally flawed.

The committee’s report continues to give preference to the ‘Parliamentary model of rights.’ This means that the laudable list of rights enumerated in the draft bill in no way tampers with the principle of Parliamentary sovereignty. It would create no body of specially protected constitutional law as exists in the United States. Parliament could continue to produce legislation which contravened or overrode elements of the bill of rights, though the committee urges that Parliament should make it explicit when this was the case.

The committee justifies supporting the ‘Parliamentary model’ as most befitting Britain’s ‘tradition of Parliamentary democracy.’ But that judgement ignores an equally historic tradition of British radicalism which seriously questioned the effectiveness of Parliament itself to act as the architect of any new constitution. Groups and individuals from the Levellers to Thomas Paine to the Chartists argued that the British Parliament was so antiquated and corrupt that radical reform could only be achieved through a new political apparatus.

These British radicals correctly identified the need to protect citizens from legislative as well as royal tyranny. This has been the historic problem with the British ‘charters of freedom’: Magna Carta, the Petition of Right, and the Bill of Rights. These documents aimed at binding the hands of kings, not cabinet ministers. But it is now the government, through Parliament, not our figurehead Queen, who poses the serious threat to our civil liberties.

When the Human Rights Committee’s chairman, Andrew Dismore, has himself proven such a staunch opponent of Parliamentary transparency (repeatedly voting against freedom of information bills regarding the workings of Parliament, MP’s expenses and constituency correspondence), one is left to wonder just how effective the ‘Parliamentary model of rights’ would be.

Ted Vallance’s A Radical History of Britain will be published next year

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