The Commission looking at a Bill of Rights (and Responsibilities) for the UK recently published an interim report - Law and Lawyers - "Commission for a British Bill of Rights: interim recommendation and other ideas" - 12th September. It is interesting to note that there is already a Bill of Rights.
The Bill of Rights 1688 was enacted after the "Glorious Revolution" which culminated in the departure of James II (VII of Scotland). Much of this Bill of Rights was concerned with (a) the rights of Parliament versus the rights of the Crown and (b) addressing certain problems (e.g. relating to taxation). Thus, as one example, the Crown could no longer dispense with laws without the consent of Parliament
Lawyers could, no doubt, have a field day on the interpretation of this article alone. Certainly, whatever the position prior to the Bill of Rights, the King could no longer suspend a law without the consent of Parliament. For the background to this Article see - Parliament "The Glorious Revolution"; Case of Godden v Hales 1686; Case of the Seven Bishops 1688.
However, some of the provisions gave individuals some vaguely phrased rights - e.g. the statements that "excessive bail" should not be required nor "cruell and unusuall punishments inflicted." (See here for explanation of "cruel and unusual punishment" in the context of the 8th Amendment to the Constitution of the USA).
However one looks at this document - time-honoured as it is with history - it is not a suitable modern statement defining the rights of either the Crown, Parliament or the individual. It should be repealed and its essential provisions clarified and built into a modern formal enactment. If the work of the Commission on a Bill of Rights comes to fruition, there could be an opportunity to do this.
A number of other Commonwealth jurisdictions already have enactments dealing with the rights and responsibilities. In 1982, the UK Parliament enacted the Canada Act which provided for a Canadian Charter of Rights and Freedoms. The Charter has become part of the Canadian Constitution. For breaches of the Charter, the Canadian courts are empowered to give any remedy considered to be appropriate and just in the circumstances. The Canada Act 1982 also stated:
Students of constitutional law will
find this an interesting example of where the UK Parliament has in practice, if not in legal theory, bound its successors.
New Zealand has the Bill of Rights Act 1990. This affirms certain rights set out in the Act. Section 6 states:
The Attorney-General has a role under section 7:
The U.K. was a founding member of the Council of Europe and one of the first signatories to the European Convention on Human Rights. The current UK legislation is the Human Rights Act 1998 which, at least, sets a floor for human rights in the UK. (The general scheme of human rights law in the UK is described on Law Observer). However, the UK Parliament has not always shown willingness to grant rights to citizens extending beyond the European Convention - for instance, rights under the International Covenant on Civil and Political Rights or the European Union's Charter of Fundamental Rights. A Protocol to the Lisbon Treaty, seeks to limit the applicability of the Charter to the UK:
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.
The various economic rights - especially those relating to employment law - in the EU Charter were considered by the British government to be detrimental to the competitiveness of British business. For an article on the so-called "Opt out" see UK Human Rights Blog 1st March 2011 - "The EU Charter: are we in or out?" Two further very interesting articles by Aidan O'Neill QC are on the Eutopialaw blog - "Is the UK's 'opt out' from the EU Charter of Fundamental Freedoms worth the paper it is written on?" - Part 1 and Part 2. Is this a case where the UK tried to draw a line in the sand only for Lord Denning's incoming tide to sweep that line away?
The EU and the European Convention on Human Rights:
The Union shall respect fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as
they result from the constitutional traditions common to the Member States, as general principles of
The accession of the European Union to the European Convention on Human Rights was included in the Lisbon Treaty and a draft agreement has now been reached - see the excellent European Court of Human Rights blog - "Draft agreement on EU accession to ECHR" - 1st September 2011.
There is considerable variation in the detail of the various human rights enactments and methods of protecting rights. Most British Commonwealth models have retained the principle that the various Parliaments have the final say on legislation and can legislate contrary to the particular Bill of Rights. In the UK, rights derive from the basic point that there is a right to do whatever what is not prohibited by law but a great deal is prohibited. The European Convention grants some rights to British citizens and the Human Rights Act 1998 has enabled those rights to be litigated in the UK courts. Going beyond the European Convention, there appears to be no particular agreement as to which rights the British people should enjoy and some of the Convention rights are questioned. British Ministers have subjected many a ruling of the European Court of Human Rights to either criticism or downright disagreement. British governments appear to be almost always sceptical about anything connected to the European Union and appear reluctant to grant further rights to the peoples of the UK such as the rights within the European Charter of Fundamental Rights. Even the rights already available may become unenforceable in practice if the massive cuts to legal aid provision are finally enacted.