Ben Boult is a student support worker at Keele University
In the Spring of 2014, the Conservative Party will set out how it plans to introduce a British Bill of Rights in the event of a majority Conservative Government after 2015. As with the passage of the Human Rights Act (the HRA) in 1998, this pledge has triggered a debate regarding the respective roles of Parliament and the judiciary in the safeguarding of human rights in the UK.
On the one hand, there are those such as Michael Pinto-Duschinsky who have argued that it should be an elected Parliament, rather than an unelected (and thus ‘unaccountable’) judiciary who should be responsible for protecting our fundamental rights and freedoms.
On the other hand, there are those, myself included, who do not believe that MPs always have the interests of human rights and civil liberties at heart (more on this shortly) and are thus sympathetic – in principle – to the some kind of judicial “strike down” power.
The ‘compromise’ that was eventually struck by the HRA is known as the “Declaration of Incompatibility” (DoI), whereby the Courts can declare an Act of Parliament “incompatible” with an individual’s human rights, but without affecting the enforceability of that Act or indeed the outcome of the case before the Court. It is then up to Parliament to consider the Court’s ruling and to decide on its own response.
However, this compromise has not shown itself to be especially effective at protecting our rights and freedoms. For instance, it did not prevent Parliament from agreeing to 28 days detention without charge, expansions of the DNA database, stop and search, secret courts, trial without jury, ID cards, control orders and a ban on protest within Parliament Square.
Whilst it is true that some of these restrictions have been subject to a DoI, many such declarations have taken the form of a policy recommendation at the margins (i.e. a ‘16 hour a day control order’ instead of an ‘18 hour a day control order’), whilst at other times, the courts have refused to rule against some laws / practices altogether (see Section 60 ‘stop and search’ powers; the kettling of protestors, the inability to destroy one’s childhood health records).
Likewise, the Courts have been reluctant to declare vague and overly broad laws as incompatible with human rights. For instance, several laws remain on the statute book that criminalise the causation of “harassment, alarm or distress” (see the Protection from Harassment Act 1997, the Public Order Act 1986, the Crime and Disorder Act 1998 and even the Anti-Social Behaviour Bill 2013). Given that none of these prohibitions are defined / qualified in law, they give rise to a significant ex ante ‘chilling effect’ on free speech and protest rights – a reality that our Courts have been unwilling to act upon.
Moreover, given that the Government could choose to ignore any such declaration anyway, it would be rather unwise of us to place too much faith in the current model of rights protection. Notwithstanding the above, I do believe that an effective ‘Parliamentary model of rights protection’ is within reach – and the key to this is Parliament’s Joint Committee on Human Rights (the JCHR).
In recent years, this little committee has shown itself to be a studious critic of Government policy, particularly with regards to the Justice and Security Bill (secret courts) and the Communications Bill (wiretapping). Sadly, it does not have the power to table its own amendments to bills that unduly infringe upon the rights and freedoms of the British people.
However, if we were to use the opportunity presented by a “British Bill of Rights” and provide for such a power, I firmly believe that this power would trump the DoI mechanism in several key respects.
Firstly, each member of the newly-entrenched JCHR would be democratically accountable. In other words, whereas a judge can only be dismissed from his or her post on the basis of impropriety, a committee member could be voted out of office because the electorate strongly disagreed with his / her decisions.
Secondly, our human rights and civil liberties would be protected on a far more normative basis under my framework. Put another way, whereas the DoI-model is concerned with the ‘lowest common denominator’ and ‘what restrictions the Government can get away with’, my model is designed to address far more idealistic questions such as ‘how can we best protect an individual’s human rights and civil liberties within a detailed legislative framework?’ In effect, the ability of the JCHR to amend a bill / existing Act of Parliament in this way would bring with it all the benefits of a judicial “strike down power” – but without the negative aspects of that power in the form of an unaccountable and potentially ‘out-of-touch’ judge.
Accordingly, those of us who wish to see a reduction in the number of vague and overly-broad laws on our statute book would be catered for by this model. Likewise, I believe that my approach would satisfy those in the ‘Pinto-Duschinsky camp’ too, in that we could dispense with the DoI altogether. Under the new system, it would be Parliament, not the Courts, who refined our human rights laws – thus rendering the DoI mechanism superfluous to requirements.
In order for an entrenched ‘power of amendment’ to work in practice, however, it would have to be subject to a number of qualifications – each of which I shall now outline.
Firstly, if the Minister responsible for a bill’s passage believed that one or more of the committee’s amendments would amount to a “violation of a manifesto commitment”, he should be able to make a declaration to that effect to the whole House and thereby put a stop to the amendment(s) in question. I suppose you could call this a kind of ‘manifesto privilege’ – a very important ‘check and balance’ without which politicians might struggle to keep some of their campaign promises and thus trust in the electoral process would be significantly undermined.
However, if the relevant Minister felt that he could not make such a declaration without straining credulity, the non-manifesto-violating-amendment tabled by the committee should automatically stand unless a majority of MPs – on a free vote – decided that it was unacceptable. This ‘presumption in favour’ of a non-manifesto-violating amendment standing is a very important safeguard indeed. Often in human rights cases, it is unpopular people who are most in need of protection (after all, popular people, by definition, do not tend to need protecting from the organs of the state). In such cases, it might be difficult for politicians to go ‘out of their way’ to protect such individuals (i.e. by tabling an amendment / voting in favour of one) – lest they should lose their perhaps slender popular majority at the next general election.
However, if a decision of this kind were taken elsewhere (i.e. by a committee staffed with human rights-minded MPs), Ministers and other MPs would be able to claim that “this amendment was not of my making – it was tabled by the JCHR following a careful review of all the evidence. As such, it is not really my place to intervene and vote against it – even though I have misgivings”. Accordingly, the rights of unpopular minorities would be much better protected from the “tyranny of the majority” under my framework.
Notwithstanding the above, if an amendment proposed by the committee were manifestly unreasonable (for instance, an amendment to abolish “whole life orders”), Ministers / MPs would be perfectly free to step in and vote against it if they felt so inclined, provided that the Parliamentary majority in question was obtained via a free vote. The reason for the latter criterion is simple: it is far more likely that 650 individuals judging an issue or case on the basis of reason will come to a decision that properly respects human rights and civil liberties than would a whipped ‘party line’ determined by a handful of individuals.
Given, too, that issues of conscience – such as abortion and the death penalty – are already subject to a free vote in Parliament, extending this to broadly similar ‘human rights amendments’ passed by the JCHR would be a perfectly natural and sensible thing to do.
In summary, this proposal is far more than just a ‘compromise’ – it is almost a full realisation of the aspirations of both sides of this debate. Ministers would retain the ability to implement their manifesto commitments without having to worry about their measures being blocked on human rights grounds; Parliament would be better placed to protect unpopular individuals from popular majorities and the human rights of everyone would be substantively protected in the form of regular committee amendments to legislation – rather than being served by an unaccountable and potentially ‘out-of-touch’ DoI.
In 1917, Winston Churchill turned to a colleague and described Parliament as “the shrine of the world’s liberties”. A ‘British Bill of Rights’ would provide a once-in-a-generation opportunity to both honour and rekindle that legacy. I hope that we take it – and take it properly.