The Prime Minister gave a powerful speech at the University of Westminster on October 25 on the history and importance of liberty in our society. He drew attention to the Government’s plan to inspire a “debate about how best to entrench liberty in our constitution”. More details were given the same day by Jack Straw, the Lord Chancellor and Secretary of State for Justice, in the Mackenzie Stuart Lecture at the University of Cambridge Law faculty. In a learned and thoughtful analysis, he explained that the Government would soon be starting to consult on the need for a British bill of rights and responsibilities.

Gordon Brown rightly recognised that “liberty is rooted in the human spirit and does not have a nationality”. But he, and the Lord Chancellor, were also correct to point out that in a more parochial sense there is nothing foreign about the Human Rights Act (incorporating the European Convention on Human Rights into domestic law). Liberty is particularly associated with the history of this country from Magna Carta onwards, and Britons led the way in the drafting of the European Convention to ensure that rights already embedded in the common law (due process, free speech, property rights, protection from torture) were guaranteed across Europe. The October 25 speeches explained that the Human Rights Act is only a beginning to the constitutional reform necessary to protect liberty in this country.

There are three main reasons why a British bill of rights and responsibilities is now needed. The first is the symbolic and educative function of such a charter. The Human Rights Act was simply a domestic incorporation of the text of the European Convention. There was little, if any, debate about the values it embodies and their enduring relevance to modern Britain. There is a shameful lack of understanding of the content of the Human Rights Act by politicians and the public.

A British bill of rights and responsibilities, expressing our commitment to freedom (both positive and negative), would set out the core values of our society to be taught in schools and to be accepted by anyone wishing to move here from abroad. It would provide a framework for the resolution of controversial issues of public policy. The bill would not provide the answers to difficult questions. But it would focus the debate by reminding us of the ideals to which we aspire. Without such a foundation, we are in danger of forgetting the history and identity of our nation, and also the virtues that we take so much for granted.

There is a second reason for adopting our own constitutional document. It would emphasise that human rights law involves a balance between rights and responsibilities, as the case law under the European Convention recognises. Misleading, and sometimes mischievous, newspaper reports have wrongly led people to believe that the Human Rights Act confers entitlements free from obligations to respect the rights of others and to contribute to the welfare of society. A British bill would identify what the community is entitled to expect of all those who live here.

Thirdly, debate about a British bill of rights and responsibilities would provide an opportunity for discussion on whether the substance of the Human Rights Act needs amendment. We could not detract from the rights protected by the European Convention without leaving the Council of Europe and the European Union, a position adopted by neither the Government, the Conservative Opposition, nor the Liberal Democrats. But we should consider whether to enact into British law other rights that this country has ratified in international law: for example, rights of the child, or social and economic rights such as an adequate standard of living and the protection of physical and mental health.

It may well be unwise to make such rights justiciable in the courts, but their adoption as values for our community would be welcome. It may also be time to move on from the typically British compromise in the Human Rights Act that allows judges to give a declaration that legislation is incompatible with the European Convention, but does not give courts the power to refuse to enforce such legislation. The enactment of a British bill of rights and responsibilities would be an appropriate moment to recognise legally binding limits on parliamentary sovereignty.

The less homogenous British society becomes, the greater the need for a fundamental constitutional charter to identify the values that bind us together. One of those values is that political change is the product of free debate of information and ideas led by democratically elected politicians. The Prime Minister and the Lord Chancellor have performed a valuable service by opening the debate about the next chapter in the constitutional history of this country.

The author is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford

Justice will launch its report A British Bill of Rights: Informing the Debate next Monday at 6pm at the Law Society. Speakers: Michael Wills, MP, Dominic Grieve, MP, Baroness Williams and Roger Smith. Free entrance.
To book: events@justice.org.uk

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