Speech at JUSTICE/Guardian public debate, 2008
Jack Straw (Labour)
Back in October I delivered the Mackenzie Stuart lecture at the Cambridge Faculty of Law. In that lecture I described how a Bill of Rights and Responsibilities might fit into the postwar development of rights. In my remarks this morning I'd like to build on that theme. I am going to discuss four areas in particular:
First, to set out why enforceable human rights are a proud British achievement;
Second, to show how British citizens themselves would be impoverished if we turned the clock backwards;
Third, to argue - paraphrasing Keynes - that as circumstances change, so must our approach. I therefore set out the need better to articulate the responsibilities which implicitly have always balanced rights; and
Fourth, alongside that, to consider the case for the expression of further rights.
Part 1: Rights - a proud British achievement
2008 marks the 60th Anniversary of the Universal Declaration of Human Rights. They have since been described as the 'Magna Carta of mankind'. (1) That comment underlines the central role which Britain has played in the history and development of rights. It is a pedigree that stretches back to 1215, through the narrative of the Magna Carta, the Peasants' Revolt, the English Civil War, the Bill of Rights, through Adam Smith and the Scottish Enlightenment, the battle for the franchise, for the emancipation of Jews, Catholics and non-conformists, of women and of non-whites, and the fight against fascist totalitarianism.
The UN Declaration on 10 December 1948 was a direct response to the Nazi oppression and the horrors of the Second World War. The Declaration was not in itself intended to create legal rights. It was aspirational, offering a normative counterpoint to the evil that had so recently gone before. It was the expression of a global desire and drive to establish common ethical standards of behaviour applicable to all humankind.
The European Convention on Human Rights was borne from this, taking this non-enforceable Universal Declaration as its base but developing the principles which underpinned it through the protection and framework of the law.
We were among the first to sign it in November 1950 and the first to ratify it in 1951.
It seems curious to think that given the significance and sentiment behind the circumstances of their genesis, that in some circles 'human rights' are seen as an unwelcome 'European' creation as if in any event Europe was culturally and philosophically separate from us.
Yet, far from being grafted on by some 'foreign', 'Continental' - I suppose worse, some 'Napoleonic' Europe - Britain was at the forefront of these rights in a context which had ramifications for the whole world.
On 20 July 1950, the Labour Foreign Office Minister, Kenneth Younger, stated that the European Convention in which these rights were enshrined 'contains a definition of the rights and limitations thereto which follows almost word for word the actual texts proposed by the United Kingdom representatives'. (2) And the drafting had in turn been led by a leading Conservative, David Maxwell Fyfe QC, later Lord Kilmuir, Lord Chancellor from 1954 to 1962.
We led the negotiations, we led the drafting, we led the way in Europe. We were among the first to sign it in November 1950 and the first to ratify it in 1951. Yet in spite of having been so instrumental in the development of the European Convention, we did not incorporate it into our own domestic law to the same degree as most other signatory nations. There were many linked reasons for this. There was the fact that we were the only European nation that had not in recent centuries experienced an existential crisis of dictatorship, occupation, defeat or the moral hazard of neutrality in a just war, and felt content - if not self-satisfied - about the adequacy of our own institutions. Other concerns were more immediate - including suspicion about a supranational court, and fear that too much ECHR might fuel the movement for colonial freedom.
But, whatever the reasons in the early fifties for non-incorporation, by the end of the century it was clear that our failure to incorporate the Convention into national law was putting British citizens at a disadvantage. They had to appeal to Strasbourg to access their rights, eroding public understanding of the British heritage of these rights and replacing it with a sense that they were in some way a continental imposition.
As the Australian constitutional expert Professor Leslie Zines commented, in pre-Human Rights Act days:
'Outsiders see Britain in practical terms having something in the nature of a Bill of Rights that is interpreted and applied by foreigners. It passes my understanding why the British do not see the virtue of having such questions determined by their own courts, at least initially.'
That was wise advice. We did not have to leave the matter entirely to 'foreigners'. In 1998 we rectified the situation with the introduction of the Human Rights Act which brought rights home. This had the very practical benefit of making it quicker, cheaper and easier for British people to access and to claim their rights in British Courts. Moreover, British judges were able to exert a more pronounced influence over the development of the Convention's jurisprudence. But there have also been the important and wider societal benefits of elevating human rights onto a constitutional level.
Lord Steyn put it well: 'Observance of human rights is instrumentally valuable. It tends to promote the conditions in which democratic systems can flourish for the benefit of people generally'. (3)
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Part two: How ending the Human Rights Act would impoverish the British people
The Human Rights Act was passed with broad agreement between the parties. The then Conservative spokesperson, and former Attorney General, Nick (now Lord) Lyell wished the Act well on its Third Reading in the Commons. Now, sadly, there are those who lament the decision we made in 1998 and would turn the clock backwards. Our main opposition party appears to be in that position. They propose to repeal the Human Rights Act and replace it with a Bill of Rights parallel to the European Convention. According to David Cameron, and his Shadow Justice Secretary Nick Herbert, this would both 'restore British parliamentary supremacy' and would strengthen the fight against terrorism by making it easier to deport suspected terrorists.
The Conservatives say, however, that they do not intend to withdraw from the Convention itself, so scrapping the Human Rights Act would still leave the European Convention in place as an overarching set of principles - and they would still be unable to deport foreign nationals at real risk of torture.
The reason for this is that any UK Bill of Rights which did not incorporate Convention rights could not have a reduced or more heavily qualified set of rights than those currently contained in the ECHR without placing the UK in breach of its international obligations. No wonder, that even Dominic Grieve, his Shadow Attorney General, admits that this is not the case, saying 'It would be quite wrong to suggest that it would completely transform the situation.'
At this point David Cameron reaches for a 'get out of jail free' card. Claiming all will be ok if we follow the model of the German Basic Law. But his reliance on the German Basic Law is misplaced. Research by Oxford University demonstrates that in countries like Germany which have their own bill of rights alongside the ECHR, the courts are in fact stricter and less flexible in their approach to interpreting fundamental rights in national security cases than the UK courts and the German Government does not 'win' security cases more often than the British government.
Repealing the Human Rights Act and simply replacing it with a separate Bill of Rights would reduce the margin of appreciation that UK courts enjoy. It would have the effect of restricting the flexibility and the application of balance within the UK courts. So the Conservative claim that replacing the Human Rights Act with a Bill of Rights would give the UK courts a greater 'margin of appreciation' is, I am afraid, the opposite of the truth.
Repealing the Human Rights Act would only result in delay for British people seeking justice and much less influence by British jurists over European jurisprudence. Rather than seeking remedy in a British court, and heard by a British judge, the British people would have to look forward to joining the back of a very long queue of those waiting for justice in Strasbourg. It would lead to an impoverishment of rights available to British citizens. What an irony, that by following the path now laid down by David Cameron we would be giving those 'alien European foreigners' more, not less control over the British people.
To seek to circumvent our ECHR obligations would have dire consequences, not just in a legal context, but it could well mean we would have to leave the Council of Europe and potentially the European Union. To do so would undo decades of progress, and do grave harm to the interests of the British people.
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Part three: Responsibilities
Whilst the HRA represents a significant milestone, the government has never regarded it as the final destination. In 1998 I described it as 'a living development of rights to assist our citizens' - 'a floor and not a ceiling'. It has always been our belief that the incorporation of the European Convention into British law could provide the basis our Britain's own Bill of Rights. But not merely a Bill of Rights - we also want to consider the responsibilities that go with them.
The Government hopes that developing a Bill of Rights and Responsibilities with the British people can help to foster a stronger sense of shared citizenship. It can do so by establishing and articulating the balance between the rights to which we are all entitled to and the obligations we all owe to each other.
Many duties and responsibilities already exist in statute, common practice or are woven into our social and moral fabric. But elevating them to a new status in a constitutional document would reflect their importance in the healthy functioning of our democracy. Just as there was a powerful legal and moral case for incorporation of Convention rights in 1998, I believe there is now a compelling societal case for taking the next step. We have learned, since then, both the strengths of the HRA and what it does not do. We want to build on the benefits of the HRA, not detract from them, and to address the omissions. The rights enshrined in the ECHR already encompass responsibilities - but implicitly. I believe that now we should seek to articulate them explicitly.
But why now? It is not because we are a society in turmoil but because we are a society in flux. We live in a modern, individualistic, consumerist age, in which old social classes have eroded. Much of this is welcome. But the consumer society has shifted attitudes in ways that also present us with some challenges. As Meg Russell has said:
'It is difficult to find anything more antithetical to the culture of politics than the contemporary culture of consumerism. While politics is about balancing diverse needs to benefit the public interest, consumerism is about meeting the immediate desires of the original. While politics requires us to compromise and collaborate as citizens, consumerism emphasises unrestrained individual freedom of choice.'
In the civic sphere, it has arguably given rise to the commoditisation of rights, which have become perceived as yet more goods to be 'claimed'. This is demonstrated in how some people seek to exercise their rights in a selfish way without regard to others - which injures the philosophical basis of inalienable, fundamental human rights. Alongside that, some people resent the rights that are afforded to fellow humankind - we see this is in the media uproar around human rights being a 'terrorist's charter' or there for the benefit of minorities alone.
'Liberty means responsibility', wrote George Bernard Shaw, 'that is why most men dread it.' (4)
Let me say here that I fully understand that there is not, and cannot be an exact symmetry between rights and responsibilities. In a democracy, rights tend to be 'vertical' - guaranteed to the individual by the state to constrain the otherwise overweening power of the state. Responsibilities, on the other hand, are more 'horizontal' - they are the duties we owe to each other, to our 'neighbour' in the New Testament sense. But they have a degree of verticality about them too, because we owe duties to the community as a whole.
Justice Kate O'Regan, Judge of the Constitutional Court describes the operation of this idea of 'horizontality' in South African law:
'What is clear already is that when a court develops the common law, for example, libel law, the court must consider the obligations imposed by the Bill of Rights. In the case of libel, this involves several rights: freedom of expression on the one hand and the right to dignity and privacy on the other. The court has to consider these rights in developing the rules of common law liability.' (5)
I suggest we need to look at the experience from South Africa and other jurisdictions, as to how they have applied a Bill of Rights in their own national contexts and how this might apply to the United Kingdom.
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Part four: 'new rights'
As with other more 'classical' human rights, a debate about whether encapsulating these generically and incorporating them into a Bill, does not imply that they have been absent until now.
A fundamental difference between before and after the Second World War has been the development of legally enforceable economic and social rights. It was a process set in train by the 1906 Liberals, taken on by Beveridge in his 1942 report, and then implemented by Attlee's 1945-51 Labour administration. We call this the welfare state.
It is significant that when Beveridge wrote his plan, the rights he described came with responsibilities.
'Social security must be achieved by cooperation between the state and the individual. The state should not stifle incentives, opportunity or responsibility; in establishing a national minimum, it should leave room and encouragement for voluntary action by each individual to provide more than that minimum for himself or his family.'
Many of the pre-existing 'generic' economic and social rights are already legally enforceable - social security, the minimum wage, many others. But we would have to look very carefully before making any further economic or social rights justiciable.
Equality, and a right to administrative justice raise some of the same issues. We have extensive laws on equality. These, down the years, are among my party's proudest achievements, ones which really do distinguish us from other parties. Judicial review has developed significantly in recent years; and as I have seen comparing my experience as a Minister over the last decade with my experience as a Special Adviser in the seventies, really does help ensure that executive decisions are made with proper regard for the rights of the individual.
Now I am certain that there is a consensus, and one which is shared by the judiciary, that it would be quite inappropriate (and unwanted) if the courts had to make decisions on levels or spending or resources which rightly should be the preserve of Parliament.
I entirely agree with the words of Lord Bingham, in his important speech on the rule of law when he said that the importance of predictability in law must preclude 'excessive innovation and adventurism by the judges' (6), and that was echoed by Justice Heydon of the High Court of Australia who suggested that judicial activism, taken to extremes, can spell the death of the rule of law (7).
If these rights are part of our Bill - and no decisions on that have been taken - but do not become further justiciable, this would not in any way make the exercise worthless. As Philip Alston described, Bills of Rights are: 'a combination of law, symbolism and aspiration'. What he makes clear is that the formulation of such a Bill is not a simple binary choice between a fully justiciable text on the one hand, or a purely symbolic text on the other. There is a continuum. And it is entirely consistent that some broad declarative principles can be underpinned by statute. Where we end up on this continuum needs to be the subject of the widest debate.
A Bill of Rights and Responsibilities could give people a clearer idea of what we can expect from the state and from each other, and provide an ethical framework for giving practical effect to our common values.
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In an enabling state, in a democratic society, it is far more than the law that binds us together. But the law has a powerful role to play. The introduction of the Human Rights Act was a landmark in the development of rights.
Notably however, the Act has not become an iconic statement of liberty as in the US, or with the South African Bills of Rights. Perhaps this is because our statements of rights have been the production of evolution and not revolution.
We have not had to struggle for self-determination or nationhood, nor have we been torn apart by social strife.
Do we in Britain value these rights less as a result? I don't think so.
I think an innate understanding of rights is a part of our national psyche, it is the amniotic fluid in which we have grown, so too is an inchoate appreciation at least, of the obligations we have to each other. But we could make them better understood.
If a Bill of Rights and Responsibilities that clarifies this relationship is to be more than a legal document and become a 'mechanism for unifying the population', it is vital that it is owned by the British people and not just the lawyers. The Act has become highly valued if not necessarily widely loved. But it is the subject of myth, misunderstanding and misapplication which has, in some eyes, devalued its worth. Whilst in reality, it is an enormously important and defining piece of legislation. And I hope that the Commission for Human Rights and Equality will continue to champion the benefits of enforceable human rights and dispel these damaging myths.
For a Bill of Rights and Responsibilities to have real traction with the British people they must have an emotional stake in, and connection with it. We have to make a reality of Francesca Klug's assertion that the true meaning of human rights is about providing 'a framework of ethical values driven not just by the ideals of liberty, autonomy and justice, but also by normative values like dignity, equality and community'.
That is why we wish to have the widest possible debate on it before we come to final conclusions.
1. Erica-Irene Daes, 'Freedom of the Individual under Law: a study of the individual's duties to the community and the limitations on human rights and freedoms', UN 1990
2. CAB 129/41. From Marston, International and Comparative Law Quarterly, Vol 42, 1993
3. Lord Steyn Holdsworth Lecture on 30 November 2001
4. George Bernard Shaw, Man and Superman, 'Maxims: Liberty and Equality', 1905
5. Kate O'Regan, 'The Challenge of Change: 13 years of constitutional democracy in South Africa', London 23 October 2007
6. Lord Bingham, Sixth Sir David Williams Lecture, 'The Rule of Law', November 2006
7. JD Heydon, 'Judicial Activism and the Death of the Rule of Law', Quadrant, January-February 2003