Does the UK need a Bill of Rights and Responsibilities?
Posted by rantingkraut on October 27, 2007
Jack Straw argued during a lecture in Cambridge, that the UK should draft its own Bill of Rights and responsibilities. In doing so it should go beyond the Human Rights Act, which co-opted the European Convention on Human Rights (ECHR) into British law.
In the first two thirds of this lecture, Straw comments on similarities between the ECHR and the German Constitution’s Basic Rights, he also elaborates on the need to respect human rights while fighting terrorism. On the whole, this part of the lecture does not seem unreasonable. The last third of the lecture then demands a UK Bill of Rights and Responsibilities. This part of the lecture is much less specific, but for a number of reasons should be a matter of concern.
The very notion of a Bill of Rights and Responsibilities points to the extent of confusion surrounding this debate. In any nation state, citizens are generally obliged to obey the laws, whether they agree with them or not. This general duty naturally gives rise to possible conflict between collective preferences or rules imposed by the leadership on the one hand and individual interests on the other.
This is why there is a need to protect individual liberty: the state has the power to legislate and –in the absence of any constraint– on it the individual’s only option is that of acquiescence or active consent.
A bill of responsibilities would therefore at best be superfluous in that duplicates the general duty to obey the law. At worst –and this is the more likely case—it would be counterproductive in placing emphasis on a counter-weight to any individual right that may be granted.
The US Bill of Rights and the German Basic Law
Jack Straw states that Germany’s Basic Law offers more protection to individual liberty than the ECHR. That may be so (more on this below), but we should first of all ask why so much attention is given to Germany’s Basic Law and none to the US Bill of Rights.
Such a comparison would be most revealing though. Consider for example the status of free speech in either constitution. The first amendment guarantees this in the US:
“Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (source)
Now take a look at the German equivalent:
[Freedom of expression]
(1) Every person shall have the right freely to express and disseminate his
opinions in speech, writing, and pictures and to inform himself without hindrance
from generally accessible sources. Freedom of the press and freedom
of reporting by means of broadcasts and films shall be guaranteed.
There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in
provisions for the protection of young persons, and in the right to personal
(3) Art and scholarship, research, and teaching shall be free. The freedom
of teaching shall not release any person from allegiance to the constitution.” (source: pdf)
The first, and arguably most important, difference is in the use of language. The US Bill of Rights is a catalogue of prohibitions directed against the state, ruling out certain types of legislative undertaking. The German constitution’s catalogue of basic rights is a list of concessions given to citizens at the discretion of the state. The general tone of the US Bill of rights is that of a free people telling the federal government to know its place. The general tone of the Grundgesetz is that of an authoritarian ruler, conceding some space to his subjects so long as they keep their heads down.
The German constitution as a whole is conditional on respect for human dignity –a criterion that can be defined as needed– and Article 18 specifies that civil liberties may be revoked in cases of anti-constitutional activity.
Of course, there can be arguments for not extending tolerance to the intolerant, but it is worth noting that German legislation has been quite restrictive in places: holocaust deniers, for example, can face criminal prosecution instead of rational refutation and well deserved ridicule. Communists have in the past been barred from becoming teachers for no reason other than their membership in an otherwise legal communist party.
The parts of the German constitution that do actually concede rights to individuals are capable of a fairly liberal interpretation. Such liberalism is a mere possibility though, there is no guarantee.
Furthermore, some articles in the section of the constitution entitled ‘Basic Rights’ do not define individual rights at all. Article 7, for example, clarifies that the “entire school system shall be under the supervision of the state” although private schools may be permitted under state supervision and provided they are sufficiently egalitarian. Article 12a makes all men liable to compulsory military service.
The Basic rights conceded in the German constitution clearly offer a weaker commitment to individual liberty than those in the US Bill of Rights.
Germany’s Basic Law vs the ECHR and the EU Charter of Fundamental Rights
The ECHR has a similar structure to the German Basic rights catalogue. It is contains a list of rights conceded to citizens by the state followed by lists of caveats and exceptions.
With the ECHR being a compromise between contracting sovereign states it should come as no surprise that these lists of caveats and cop-outs are longer. After all, a larger number of specific government interests needed to be covered. The interesting question with respect to New Labour’s proposal is whether either the ECHR or Germany’s Basic Rights are in any way indicative of things to come in the UK.
This seems unlikely based on what Straw said during his lecture. The last third of the lecture is introduced with some general observations on globalisation, a more heterogeneous (i.e. multicultural) society and the rise of ‘consumerism’ and individualism. Straw seems horrified –among other things- by the idea that some people might use individual rights selfishly, i.e. for their own good.
Such generalised observations in a lecture on a narrowly defined topic tend to set the scene for a fundamental re-definition of established concepts and norms. This is clearly what Straw’s theme of rights and responsibilities is aiming at. The demands in the lecture are not very specific: they point generally to responsibilities as a counterweight to rights and anticipate the later publication of a green book on the topic.
If labour’s past record in government is anything to go by, this will be the opportunity where individual rights will be re-defined beyond recognition. Redefined not as a modified limitation on government power but as yet another institution in support of a social democratic reform agenda.
In other words, such a bill of rights and responsibilities will probably look more like the European Union’s Charter of Fundamental Rights (pdf). This charter is a declaration of positive rights. Aside from concessions of individual rights, as in the German constitution or the ECHR, it contains entire sections placing egalitarian policy objectives and various social policy measures on one footing with human rights.
There are entire sections headed equality and solidarity focussing on these aspects. The problem here is not that these measures are a significant departure from current practice –they aren’t- or that they are clearly unreasonable but their position alongside and their conflation with a declaration of rights.
A bill of rights was historically intended to limit what a government could do. Yet somehow, what started out as a constraint on government power in the US Bill of Rights morphed into just one of several aspects of a fairly broad social policy agenda in the EU’s Charter of Fundamental Rights. Individual interests are still mentioned, but the intention to trade them off against other policy targets is quite clear.
A UK version of the EU charter is then probably the best one can hope for. A more authoritarian document should come as no surprise either.
Watch this space
The US Bill of Rights attempted to guarantee human rights in the classical liberal sense; the ECHR at least allowed a liberal interpretation while being open to social democratic views; the EU Charter of Fundamental Rights firmly establishes the norm of social democracy as the only government ideology in what Johan Norberg has called the ‘one-idea state’.
The wording of a future UK ‘Bill of Rights and Responsibilities’ should give some indication of whether Britain will join Europe’s community of ideologically homogeneous social democracies, or retain part of its society’s common ground with the rest of the Anglosphere. Let’s wait and see just how bad this proposal turns out to be.
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