JHCR report on Bill of Rights
Some good and bad things about their “Twenty-ninth Report: A Bill of Rights for the UK?“, published on the 10th of August.
Unlike the Government they have suggested an Outline of a UK Bill of Rights and Freedoms (as opposed to handwaving about Rights and Responsibilities).
Some of these are controversial, e.g. social and economic rights; some are limited in justiciability; others are wholly non-justiciable, i.e. an individual could not seek a remedy via the courts.
Others are more sensible, e.g. freedoms of expression and association.
Parliament may expressly declare in an Act of Parliament that the Act or any provision in it shall operate notwithstanding anything contained in this Bill of Rights and Freedoms.
A far cry indeed from “Congress shall make no law…“, particularly as Parliament is a “bazaar” where civil liberties are “traded away”, and that idiot MPs would rather “save Gordon Brown for the nation” rather than oppose ridiculous lengths of time for which one may be held without charge.
Furthermore, all the suggested Rights and Freedoms are relegated to a Schedule (the very last sections of a Bill), rather than near the top of the Bill – perhaps I’m reading too much into that. But it certainly seems longer and more complicated than other Bills or declarations of rights I’ve seen.
I’m glad however that the JHCR was somewhat suspicious of the Government’s motives, for example:
We regret that there is not greater clarity in the Government’s reasons for embarking on this potentially ambitious course of drawing up a Bill of Rights. A number of the Government’s reasons appear to be concerned with correcting public misperceptions about the current regime of human rights protection, under the HRA. We do not think that this is in itself a good reason for adopting a Bill of Rights. As we have consistently said in previous Reports, the Government should seek proactively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true.
I’m clearly not the only one who thought that much of the Government’s work was about managing public perception instead of standing up to it.
But the silly thing about this is that at some point they, or a future Government, will not be able to deport suspected terrorists to countries where there is a real risk of torture, whatever the public outcry here, whatever laws we have, while we remain signatory to the European Convention on Human Rights, and therefore the public will continue to be dissatisfied and weak Home Secretaries will continue to say how awful judges are.
The JHCR also agrees that Jack Straw & co. have been rather vague about whether or not our rights are contingent on us discharging our responsibilities and duties and what those should be.
It appears, on closer inspection of the Government’s arguments, and in particular the evidence of Michael Wills MP cited above, however, that the Government’s interest in “responsibilities”, like its interest in characterising the rights in the HRA as “British”, is primarily for presentational reasons: it is motivated by a concern to educate the public.
We find the Government’s thinking about the relationship between rights and responsibilities extremely muddled. On the one hand, we welcome the Government’s apparently unequivocal acceptance that, in the words of Michael Wills MP, “rights are not contingent on discharge of responsibilities.” We agree and regard this as being of fundamental importance in this debate. Human rights are rights which people enjoy by virtue of being human: they cannot be made contingent on the prior fulfilment of responsibilities.
On the other hand, we note that the Government also says that an individual’s failure to carry out his or her responsibilities does have consequences for that individual’s rights. We find the distinction between responsibility being a precondition of rights and loss of rights being a consequence of irresponsibility an elusive one to grasp.
Again, our responsibilities / duties are directly reciprocal to our rights and freedoms – that is, if you enjoy freedom of speech, you should let others speak, and you should also stand up for their freedom of speech.
As the JHCR points out, any Bill of Rights has to go further and / or add to the rights already in the Convention / Human Rights Act for it to be of any practical use.
So what did the JHCR add?
Schedule 5 – Rights of Particular Groups
People with disabilities
Victims of Crime
I can’t see any more details on this, and it looks a bit weird given that the very first Right in the list, in Schedule 1, is “Equality” (whatever that means).
They also added social and economic rights (my emphasis in bold):
Health care – Everyone has the right to have access to appropriate health care services, free at the point of use and within a reasonable time. No one may be refused appropriate emergency medical treatment
Education – Everyone of compulsory school age has the right to receive free, full-time education suitable to their needs. Everyone has the right to have access to further education and to vocational and continuing training.
Housing – Everyone has the right to adequate accommodation appropriate to their needs. Everyone is entitled to be secure in the occupancy of their home. No one may be evicted from their home without an order of a court.
An adequate standard of living – Everyone is entitled to an adequate standard of living sufficient for that person and their dependents, including adequate food, water and clothing. Everyone has the right to social assistance, including care and support, in accordance with their needs. No one shall be allowed to fall into destitution.
A healthy and sustainable environment – Everyone has the right to an environment that is not harmful to their health. Everyone has the right to information [what about the ability to understand it?] enabling them to assess the risk to their health from their environment. Everyone has the right to a high level of environmental protection, for the benefit of present and future generations, through reasonable legislative and other measures that: (i) prevent pollution and ecological degradation; (ii) promote conservation ; and, (iii) ensure that economic development and use of natural resources are sustainable.
Well, it all sounds great – how could anyone be in opposition to “Everyone of compulsory school age has the right to receive free, full-time education suitable to their needs”?
Note not just the presumption of state largesse, but the paternalistic trimmings: “appropriate”, “compulsory”, “full-time”, “adequate”, “allowed” [I would add, “suitable”]. This is a profoundly conservative version of left liberal doctrine: backward-looking to the golden age of 1978 (precisely datable by its implicit assumption that coming into force of the Protection from Eviction Act 1977 represents the effectuation of an eternal moral insight); assuming the dominance of the state (these “rights” are bizzarely to be judiciable but not enforceable; and throughout unquestioning of the burden of doctrine. …
Libertarians and others to the economic right see second and third generation human rights as an attempt to cloak political goals in the language of rights, thus (a) granting certain political goals inappropriately positive connotations; (b) advancing the power of governments and NGOs while (c) diminishing the legitimate negative rights of individuals who are coerced by state power into funding or otherwise providing certain services (for example, a “right to employment” necessarily means that individuals may be forced to provide employment to others, and/or may be forced to pay additional taxes to governments to monitor and administer programs.)
Indeed what is the point given the associated duties?
(1) The rights in this schedule are not enforceable by individuals against the Government or any public authority.
(2) The rights in this schedule are justiciable only to the extent that they are relevant to:
(a) the interpretation of other legislation, or
(b) the assessment of the reasonableness of the measures taken to achieve their progressive realisation.
When evaluating the reasonableness of the measures taken by the Government to achieve the progressive realisation of the rights in this schedule, the courts shall have regard to the following relevant considerations:
(a) the availability of resources
(b) the latitude inherent in a duty to achieve the realisation of the rights progressively
(c) the court has no jurisdiction to inquire into whether public money could be better spent …
And just how is anyone going to decide what is “suitable”?
So it’s back to Parliament to enforce what it surely should already be enforcing – but too often can’t because of our “elective dictatorship“, where the Government of the day so dominates Parliament that it can pretty much do what it wants.
That’s alright, because
We agree with the Government that including fully justiciable and legally enforceable economic and social rights in any Bill of Rights carries too great a risk that the courts will interfere with legislative judgments about priority setting. Like our predecessor Committee, we recognise that the democratic branches (Government and Parliament) must retain the responsibility for economic and social policy, in which the courts lack expertise and have limited institutional competence or authority. It would not be constitutionally appropriate, in our view, for example, for the courts to decide whether a particular standard of living was “adequate”, or whether a particular patient should be given priority over another to receive life-saving treatment. Such questions are quite literally non-justiciable: there are no legal standards which make them capable of resolution by a court.
This seems odd, because surely such decisions involve fairness, due process, and reasonableness, things the courts deal with every day, which Government and Parliament very often don’t!
Not that I think it is a good idea for the courts to be involved… just, what is the point?
I can’t see the point of non-justiciable rights or duties (except that of political expediency). One particularly worthless suggestion from Jack Straw is that
in some countries there is a duty to vote in elections, and although he did not think that this would be acceptable in this country, he did suggest that, with a right to vote and a right to take things up (i.e. complain) in a democracy, perhaps there should be a debate about whether to include, at a declaratory level, a non-justiciable duty to vote.
Well great, a non-enforceable suggestion that we should all vote. Why not just take out an ad? It would probably have more effect.
The JHCR, on the other hand, says,
If, for instance, economic and social rights were part of our new Bill, but did not become further justiciable, this would not in any way make the exercise worthless. There is great power in symbols. As the jurist Philip Alston described, Bills of Rights are ‘a combination of law, symbolism and aspiration’.
I’m not sure symbols are of great comfort to those who are in most need of “appropriate health care”, “adequate accommodation” and “adequate standard of living” – symbols can’t cure cancer, and they don’t provide shelter, warmth and sustenance.
Can we please have an easy to understand and relatively short Bill of justiciable fundamental rights and freedoms, better support for those who want to defend their rights (the Government’s attacks on legal aid haven’t made this easier), a means of entrenchment (i.e. make it more difficult than usual for Government / Parliament to erode our liberties), and a means for the courts to strike down incompatible legislation?
That’s pretty much all we need, I think. The rest – relating to social and economic “rights” – can be dealt with (or not) in the usual fashion, in Parliament, where anyone not already standing up for adequate healthcare, education, and a standard of living should think about resigning.